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 Cornell University Law 
 
 Library 
 
 The Moak Collection 
 
 i 
 
 PURCHASED FOR 
 
 The School of Law of Cornell 
 
 University 1 
 
 And Presented February 14, 
 
 1893 
 
 IN nenoRY of 
 
 
 JUDGE DOUGLASS BOARDMAN 
 
 FIRST DEAN OP THE SCHOOL 
 
 1 
 1 
 
 By his Wife and Daughter 
 
 
 A. M. BOARDMAN and ELLEN D. WILLIAMS 
 
Cornell University Library 
 KD 1832.A4 1853 
 
 Reports of cases argued and determined I 
 
 3 1924 017 830 260 
 
Cornell University 
 Library 
 
 The original of tiiis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924017830260 
 
REPORTS 
 
 CASES 
 
 ARGUED AND * DETERMINED 
 
 IN THE 
 
 HIGH COURT OP ADMIRALTY, 
 
 COMMENCING ■VVIIH 
 
 THE JUDGMENTS 
 
 RIGHT HON. SIR WILLIAM SCOTT, 
 
 EASTER TERM, 1808. 
 
 By THOMAS EDWARDS, LL. D. 
 
 ADVOCATE. 
 
 EDITED BY GEORGE MINOT, 
 
 COUNSELLOK AT LAW. 
 
 BOSTON: 
 LITTLE, BROWN AND CO IV^ P^A N Y . 
 
 1853. 
 
Entered according to Act of Congress, in the year 1853, 
 
 Bt Little, Bkown and Company, 
 
 in the Clerk's Oiiice of the District Court of the District of Massachusetts. 
 
 RIVERSIDE, CAMBKIDGE: 
 PBINTED BY H. O. HODGHTON AND COMPANY. 
 
ADVERTISEMENT. 
 
 The present editor takes this opportunity of professing his design 
 to contintje the Admiralty Reports on the same plan which was 
 adopted by his predecessor ; in succeeding to whose labors he has 
 the advantage of a model which it will be his ambition to follow 
 as closely as may be accomplished by care and industry. Higher 
 requisites than these are indeed necessary to the adequate perform- 
 ance of such an undertaking ; but it may at least be some satisfaction 
 to the public to know that he is in possession of all those means of 
 correctness and fidelity, which the liberal communications of his 
 professional friends can supply. 
 
 DoOTOKS Commons. 
 15th February, 1810. 
 
JUDGE 
 
 OF THE 
 
 HIGH COURT OF ADMIRALTY, 
 
 THE EIGHT HONOEABLE SIE WILLIAM SCOTT, 
 
 king's advocate. 
 SIE CHEISTOPHEE EOBINSON. 
 
 ADVOCATE OF THE ADMIEALTT. 
 
 JAMES HENEY AENOLD, LL. D. 
 
NAMES 
 
 OP 
 
 CASES REPORTED. 
 
 Page 
 
 AcTEOX, Mason . . . 254 
 
 Adams, Tubbs . . .289 
 
 Arthur, Kattbum . .202 
 
 Asia Grande, Joaquim . . 45 
 
 Babillion . . .39 
 
 Baltic Merchant, Smith . 86 
 
 Belle, Betts . . .66 
 
 Bellona, Voltz . . .63 
 
 Bolletta, Trumpey . . 171 
 Bourse, alias Gute Erwagtung 370 
 
 Bteield, Forster . . .188 
 
 Carl, BerKn . . .339 
 Catharina Maria, Brathering . 337 
 
 Charlotta, Elliott . . 252 
 
 Comet, Mix . .32 
 Constantia Harlessen, Knudson 232 
 Cornelia, Koose . . 244, 360 
 
 Courier, Eriok . . . 249 
 
 Courtney, English . . 239 
 
 CousiNE Marianne, Deboer . 346 
 
 Dash and others . . .272 
 
 Eleanor, Hall . . .135 
 
 Elizabeth, Nowell . .198 
 
 Emma, Mallgren . . .366 
 
 EuROPA, Schmidt . . .342 
 
 EuROPA, Sundberg . . 358 
 
 Exchange, Ledet . . 39 
 
 Eannt and Elmira, Hicks . 117 
 
 Forsigheidt, Willesden . .124 
 
 Fortuna, Koedt . . .56 
 
 FoRTUNA, Brasch . . . 236 
 
 Fox and others .. . .311 
 
 Fkau Magdalena, Hansen . 367 
 1* 
 
 Friends, Creighton . . 246 
 
 Goede Hoop, Pieters . .327 
 
 Guillaume Tell, Sannier . 6 
 
 HEOTOR,.Eels . . 379 
 
 Henrietta, Torbiornsen . . 363 
 
 Henry, Hannay . . . 192 
 
 HoppET, Halberg . . . 369 
 
 James Cook, Jougain . . 261 
 JoHAN and Siegemund, Niegel . 242 
 
 JoHAN, Abraham . . . 275 
 
 JoHAN PiETEK, Schwartz . . 855 
 
 JoNGB JosiAS, Jurgensen . .128 
 
 JoNGE Clara, Stevens . .371 
 
 JoNGE Frederick, Cloassen . 357 
 
 King v. "Wayth . . .81 
 
 King v. Ferguson . . 84 
 
 L'AcTiF, Lorrial . . . 185 
 
 La Gloire and others . . 280 
 
 Lady Ann, Wardell . .235 
 
 Leander, Murray . .85 
 
 Lord Nelson, Luckie . . 79 
 
 Lucy, Taylor . . .122 
 
 Luna, South-worth . ' . .190 
 
 Manilla, Barrett . . .1 
 
 Madison, Frost . . .274 
 
 Maria, Kilstrom . . .175 
 
 Mentor, Williams . . .207 
 
 Mercurius, Hansen . . 53 
 
 Minerva, Davidson . .375 
 
 Nemesis, Quick . . .50 
 
 NicOLiNE, Nielson . . . 364 
 Nostra Senora db los Dolores, 
 
 Morales . . .60 
 
VI 
 
 TABLE OP CASES REPORTED. 
 
 Pbnsamento Feliz, Megalhaens . 
 Prima Vera, Vodonick . 
 Principe Athelante 
 Prosper, Gloassen, and Holstein, 
 Jobs .... 
 
 Progress, Barker . 
 Kapid, Fleming 
 Robert Hale, Eandall 
 Santa Anna, Larinago 
 San Francisco, Du Paula 
 Sarah Maria, Marstrand . 
 
 Page 
 
 
 Page 
 
 115 
 
 St. Ivan, Wacklin . 
 
 377 
 
 23 
 
 Speculation, Koht 
 
 184 
 
 70 
 
 Speculation, Eberhard . 
 
 344 
 
 
 Thomteis, Kussell 
 
 17 
 
 72 
 
 Thorshaven 
 
 102 
 
 210 
 
 TwJiB Gebroeders, Jans 
 
 95 
 
 228 
 
 Victoria, otherwise Alfred the 
 
 
 265 
 
 Great . ■ . 
 
 97 
 
 180 
 
 Vrow Cornelia, Dykstra 
 
 •349 
 
 279 
 
 Wanstead, Morton 
 
 268 
 
 361 
 
 Wolearth, Harting 
 
 365 
 
CASES EEPOETED IN THIS VOLUME, 
 
 AND SINCE HEARD ON APPEAL. 
 
 (Before tlie Lords Commissioners of Appeal in Prize Causes.) 
 
 Aethue, Rathburn, 
 Comet, Mix, 
 Elizabeth, Nowell, 
 
 And appellant condemned in costs. 
 EuEOPA, Sundberg, 
 
 And appellants condemned in costs. 
 GtJiLLAUME Tell, Sannier, 
 Jo HAN, Abraham, 
 
 But expenses of claimant of ship pre 
 JoNGE JosiAS, Jurgensen, 
 Mentoe, Williams, 
 Progress, Barker, 
 Rapid, Fleming, 
 ThOE SHAVEN, , 
 
 ViCTOEiA, otherwise Alfred the Great, 
 
 And appellant condemned in costs. 
 Vkow Cornelia, Dykstra, 
 
 26th January, 1811. 
 
 Affirmed. 
 
 3d March, 1810. . 
 
 ' . . Affirmed. 
 
 18th January, 1812. 
 
 Affirmed, 
 
 26th January, 1811. 
 
 Affirmed, 
 
 1st February, 1810. 
 
 Affirmed. 
 
 7th July, 1810. 
 
 Affirmed, 
 
 Lineed to be a charge on 
 
 the cargo. 
 
 9th February, 1811. 
 
 Affirmed. 
 
 26th January, 1811. 
 
 Affirmed. 
 
 26th January, 1811. 
 
 Affirmed. 
 
 9th March, 1811. . 
 
 Affirmed. 
 
 26th January, 1811 
 
 Affirmed. 
 
 28th July, 1810. . 
 
 Affirmed. 
 
 13th June, 1811. . 
 
 Affirmed. 
 
NAMES 
 
 OF 
 
 CASES CITED. 
 
 Dart . . 
 
 Happy Couple 
 
 Mars 
 
 Trautmansdorf 
 
 'Genereux 
 
 Knight V. Lord Plymouth 
 
 Ex parte Belchier . 
 
 Minna 
 
 Active 
 
 Hibbeyts 
 
 Page 
 1 
 1 
 
 28 
 28 
 55 
 63 
 86 
 
 Frontine v. Frost . 
 
 Pearl . 
 
 Nordstem 
 
 Ooster Ems . 
 
 Talbot V. Ship Amelia 
 
 Superbe 
 
 Duchess Anne 
 
 Toulouse 
 
 Lucy 
 
 Fox . . . 
 
 . 87 
 . 126 
 . 211 
 . 254 
 . 280 
 . 280 
 . 280 
 . 317 
 . 390 
 
EEPOETS OF CASES 
 
 DETEEMINED IN THE 
 
 HIGH COUIiT OF ADMIHALTY. 
 
 Manilla, Barret. 
 
 April 1, 1808. 
 
 Ports and places of St. Domingo not in possession of the French, excepted out of the genera 
 character of the island as an enemy's colony since the orders in council recognized them as 
 open to British trade.i 
 
 This was a question arising on the construction of the fourth clause 
 of the orders in council of the 11th of November, 1807, as applied to 
 those parts of St. Domingo, which had been wrested from the enemy 
 by the insurgent negroes ; the relaxation of the general prohibition to 
 trade with the enemy, contained in that clause, being limited to the 
 direct voyage between the enemy's colony and the country to which 
 the neutral vessel belongs, or some free port in his Majesty's colo- 
 nies. 
 
 For the captors, the King's Advocate and Arnold, contended — 
 That the question had already been disposed of by the decision of 
 the Court of Appeals,^ in the cases of The Dart, and Happy Couple, 
 in which it was held, that notwithstanding the unsettled state of St. 
 Domingo, it was still, in point of law, under the dominion 
 of France, and must be considered as an enemy's * colony. [ * 2 ] 
 That this American ship was trading from St. Domingo to 
 Gottenburg, and consequently under those decisions was engaged in 
 a commerce prohibited by the order in council. 
 
 1 [See The Immanuel, 2 C. Kob. 186 ; The Happy Couple, 1 Stewart, K. 65 ; The 
 Santa Anna, Edw. 180.] 
 
 2 Lords, 17th March, 1808. 
 
CASES DETERMINED IN THE 
 
 The Manilla. Edw. 
 
 For the claimants, Lawrence and Swabey. The Dart and Happy 
 Couple were captured early in the year 1805, and the Lords decided 
 those cases with reference to the time of capture. They could not 
 take upon themselves to determine that any part of St. Domingo was 
 to be considered at that period as not partaking of the general cha- 
 racter of the colony, as it had been so declared by his Majesty's 
 government.1 g^^ there are orders in council which have issued sub- 
 sequently to the capture of those vessels, permitting British subjects 
 to trade to those ports of St. Domingo which are not in the posses- 
 sion or under the dominion of the enemy, and if by these orders 
 British subjects are permitted to frequent such parts of the colony, 
 they ascribe a distinct character to the places so excepted, of which 
 neutrals are entitled to avail themselves equally with the subjects of 
 this country. 
 
 Judgment. 
 
 Sir William Scott. This was the case of a vessel sailing under 
 American colors, and captured December 11th, 1807, on a voyage 
 from Port-au-Prince, in the island of St. Domingo, to Gottenburg. 
 It was directed to stand over until a question upon the national cha- 
 racter of that colony should be determined in the Superior Court ; 
 because, if St. Domingo is to be deemed hostile, all particular parts 
 of the island, .as well as the whole generally, this ship, with 
 
 [ * 3 ] her cargo, would be * subject to confiscation as trading to a 
 port not of her own country from a colonial port of the 
 enemy. The peculiar circumstances of the island, which are well 
 known, gave rise to that question ; several parts of it had been in the 
 actual possession of insurgent negroes, who had detached them, as 
 far as actual occupancy could do, from the mother country of France 
 and its authority, and maintained within those parts at least, an inde- 
 pendent government of their own. And although this new power 
 had not been directly and formally recognized by any express treaty, 
 the British government had shown a favorable disposition towards it 
 on the ground of its common opposition to France, and seemed to 
 tolerate an intercourse that carried with it a pacific and even friendly 
 complexion. It was contended, therefore, that St. Domingo could 
 not be considered as a colony of the enemy. The Court of Appeal, 
 however, decided, though after long deliberation and with much ex- 
 pressed reluctance, that nothing had been declared or done by the 
 British government that could authorize a British tribunal to consider ■ 
 \ 
 
 1 See Appendix, A., B., C. 
 
HIGH COURT OF ADMIRALTY. 
 
 The Manilla. Edw. 
 
 this island generally, or parts of it, (notwithstanding a power hostile 
 to France had established itself within it, to that degree of force and 
 ■with that kind of allowance from some other states,) as being other 
 than still a colony or parts of a colony of the enemy. There can be 
 no doubt; that the strict legal principle of that decision was correct ; 
 and yet at the same time, if circumstances can be pointed out in this 
 case for a favorable distinction, the court would not be disinclined to 
 adopt it, without meaning to recede from or to enervate that princi- 
 ple. It turns out that subsequent to the occurrence of those cases, 
 though prior to their determination, certain orders and 
 instructions * had been issued by his Majesty's government [*4 ] 
 which raise the question, whether some particular ports in 
 St. Domingo are not taken out of the general character which by 
 that determination was affixed to the colony, at least with respect to 
 cases occurring subsequently.^ In these orders in council I observe 
 that the description is negative : " British vessels are permitted to go 
 to such ports and places in the island of St. Domingo as are not or 
 'shall not be under the dominion and in the actual possession of his 
 Majesty's enemies." Here is no affirmative description ; no powers 
 in possession are specified ; but if this negative description applies in 
 fact to Port-au-Prince, the rule restricting the colonial trade will not 
 affect the present question ; for it extends, and can extend, in reason, 
 only to places under the dominion or in the actual possession of 
 the enemy. Now, it is matter of notoriety, that Port-au-Prince is 
 not under the dominion of France or Spain ; it is one of those places 
 of which this new power has possessed itself; and that it is not a 
 mere military possession is sufficiently shown, by the clearances and 
 other documents which are regularly made out in the name of Chris- 
 tophe, the chief of this anomalous black government. The question 
 then is, whether under these orders the present case is not excepted 
 from the operation of the principle laid down by the Lords : for with 
 no semblance of justice can you apply the rule of colonial exclusion 
 to places which you have recognized by public and solemn declara- 
 tions not to be either in the dominion or possession of the enemy. 
 In construing public acts, every word must be taken as expressive, 
 and the words " dominion and actual possession," must mean some- 
 thing more than the mere fact of possession. What is 
 * the legal meaning of dominion? Its legal meaning im- [*5] 
 plies rightful possession and authority : as applied to private 
 property it signifies not merely possession, but possession with rights 
 
 1 See Appendix, D. 
 
CASES DETEEMINI2D IN THE 
 
 The Manilla. Edw. 
 
 of property, that of which the person is dominus : as applied to public 
 possession it is the right of legal authority. In his Majesty's instruc- 
 tions of the 11th February, 1807, the expression made use of is 
 " under control," a word of less definite meaning, and which may 
 have a more or less restricted signification ; but when I find " domi- 
 nion " used in two instances, I must take it rather as interpreting and 
 enlarging the meaning of the' word " control," than as in any manner 
 restricted by it. It. has been asked, if this is the true construction of 
 the orders in council, why are licenses required? There may be 
 many reasons for that requisition : it may be for the purpose of point- 
 ing out the particular ports to and from which the vessels are going, 
 with a view to. prevent -an improper'use being made of the' permission 
 given by' the orders, or for other purposes which would not in any 
 manner interfei^e with the constructidn which I am inclined to put 
 upon them. If there .are purposes and motives for these orders which 
 are inconsistent with this construction, they are purposes and motives 
 which are not expressed; and courts of justice are not to attend to 
 latent motives and purposes in order to control clear and definite de- 
 clarations. Here is a positive declaration of the state, that parts of 
 St. Domingo are neither in the possession nor in the dominion of 
 France. The court has to look no further than to see whether the 
 port in question comes within that description ; if it does, the court 
 
 is bound to .apply all the consequences which belong to 
 [ * 6 ] such a description. It cannot assume to say * it shall be 
 
 good for one purpose but not for another. It -is not neces- 
 sary that this should amount to a perpetual recognition of the inde- 
 pendence of those places as in the case of a formal and permanent 
 cession. It is, sufficient that there is a rightful and acknowledged 
 suspension of the authority of France ; that will in itself exempt the 
 parties from the penalties of trading from an enemy's colony, and I 
 shall therefore restore the ship and cargo, on payment of the captor's 
 expenses. 
 
HIGH COUET OF ADMIRALTY. 
 
 The Guilliaume Tell. Edw. 
 
 The Guilliaume Tell,^ Sannier, commander. 
 
 July 13, 1808. 
 
 Cooperation in the blockade of Malta — claim of joint capture by ships stationed at differ- 
 ent points in support of the blockade, established.^ 
 
 The present question <arose on a claim of joint capture interposed 
 on behalf of his Majesty's ships Culloden and Northumberland, on 
 the ground of associated service, for the purpose, among other objects, 
 of effecting this capture. The prize was a French ship of war, which, 
 with another, had been for some time blockaded in the harbor of La 
 Valette, in the island of Malta, by a British squadron then under the 
 orders of Sir Thomas Trowbridge, commander of his Majesty's ship 
 Culloden, acting in the absence of Lord Nelson. In the night of the 
 29th of March, 1800, The Guilliaume Tell made an attempt to escape, 
 but was pursued and taken by The Foudroyant, and some other ships 
 belonging to the blockading squadron, while the remainder kept their 
 stations off the port, except The Culloden and Northumberland, which 
 were at anchor at the time in the Marsa Sirocco Bay, a few miles 
 distant from La Valette. 
 
 * An objection was taken to the CTidence of Lieutenant [*7] 
 Oliver, of The Northumberland, who w^s stationed at a sig- 
 nal post on the island, and threw up rockets when The Guilliaume 
 Tell was putting to sea, as it appeared that he belonged to one of the 
 ships claiming to share, and had not released his interest. It was 
 admitted, that though he was not on board at the commencement of 
 the chase, he was on board during part of the time. 
 
 The Court said, — That the question was of some nicety, whe- 
 ther this officer would be entitled to share, supposing he was not 
 on board, on account of the intelligence he was the means of convey- 
 ing ; but that it should allow his evidence to be read, subject to all 
 objections. 
 
 For the actual captors, Lawrence and. Swahey. — Two witnesses 
 only have been examined upon the allegation given on the part of 
 The Culloden and Northumberland : Lieutenant Oliver of The Norths 
 
 1 [Affirmed on appeal, Feb. 1, 1810.] 
 
 2 [For cases as to joint capture; see the Nordstern, 1 Acton, 128.J 
 EDW. 2 
 
CASES DETERMINED IN THE 
 
 The Guilliaume Tell. Edw. 
 
 umberland, and M'Donald, the master's mate of The Culloden. If 
 Lieutenant Oliver is an incompetent witness, their case must depend 
 entirely upon the evidence of M'Donald, who is a releasing witness, 
 and whose testimony, therefore, taken alone, cannot support a claim 
 of this nature. He states, " that about twelve o'clock on the night 
 when the enemy put to sea, having gone up to the mast-head of The 
 Culloden to look out, he saw the rockets and blue lights which Lieu- 
 tenant Oliver threw up, on observing the French ship Le Guilliaume 
 Tell haul out from the harbor. And in about ten minutes afterwards 
 
 (it being very dark, the moon ha^«ing gone down and the 
 [ * 8 ] wind blowing strong out of the said * harbor of La Valette) 
 
 he heard guns firing from ships off the said harbor, and very 
 soon after saw 'the flashes from the said ships' guns in three direc- 
 tions. That he continued to look out there (except at short intervals, 
 when he went to communicate with the commanding officer) till 
 about half past three o'clock in the morning, by which time the three 
 engaging ships had got so far to the N. N. E. that he could no longer 
 see the flashes from the guns : " and he adds, " that when he came 
 down upon the deck of the said ship to report to the commanding 
 officer, the flashes from the guns of the said engaging ships were 
 plainly seen from the poop." Now how does this accord with the 
 evidence of Lieutenant M'Kenzie and the three other witnesses, exa- 
 mined on behalf of the actual captors ? They state, that at the time 
 the first guns were dischargedTrom any of the chasing ships, they 
 must have been twelve or fifljgen miles from Marsa Sirocco Bay, and 
 as the prize and the chasing ships were all that to windward, and the 
 wind blew strong, it is hardly possible for the report of the guns to 
 have been heard, and the flashes seen, in the Marsa Sirocco Bay. At 
 ■ the same time the mistake is easily explained, as there was during that 
 night much thunder and lightning in the quarter where the enemy 
 was pursued, which had the appearance of an engagement at a dis- 
 tance : so much so, that The Foudroyant was for some time led out 
 of the due course of pursuit by mistaking those appearances for an 
 engagement between the more advanced chasing ships and the 
 enemy. And the fact is, that The Foudroyant did not come up with 
 The Guilliaume Tell so as to bring her to action till six o'clock the 
 next morning, at which time she was eleven or twelve leagues distant 
 
 from the bay where The Culloden and Northumberland were 
 1*9] at anchor. That the mere fact of "association or of sight, 
 
 taken singly, is not sufficient, has been decided in the cases 
 of The Mars, and the Trautmansdorf. The case of The Genereux 
 which was decided by the Lords on an appeal from the Vice- Admi- 
 ralty Court at Minorca, is strictly in point; as it was a capture 
 
HIGH COURT OF ADMIRALTY. 10 
 
 The Guilliaume Tell. Edw. 
 
 arising out of the same service. In that case, Captain Ball, who 
 acted as governor of the island, sent information to Lord Keith, on 
 the 15th February, 1800, that a French squadron, consisting of one 
 ship of the line, and four smaller vessels, was expected for the relief 
 of the French in the garrison of the port and city of La Valette. 
 The Foudroyant and two other ships of the line were immediately 
 ordered to look out for the enemy in the S. S. E., and The Lion was 
 ordered to take a station off the passage, between Goza and Malta, 
 while the commander-in-chief stationed the rest of the vessels in such 
 a manner as to prevent .the enemy from entering La Valette. On 
 the morning of the 18th, The Foudroyant, and the other vessels sent 
 in chase, obtained sight of the enemy on that side of the island which 
 is opposite to La Valette, and after a short engagement The Genereux 
 surrendered. It was alleged, " that, at the time of capture, The Lion 
 was sufficiently near to hear the report of the guns fired during the 
 engagement ; that The Lion, as well as the other stationed ships, 
 formed a part of the same squadron under the same commander, and 
 that they took their respective stations in consequence of signals 
 made .by him, upon receiving intelligence of the approach of the 
 enemy." Yet this allegation, strong as the facts were, was rejected. 
 Now what is the association in the present case ? The Cullodin had 
 sustained considerable damage, and The Northumberland had 
 130 of her crew sick on shore ; they were stationed for * the [ * 10 ] 
 distinct service of keeping the Marsa Sirocco Bay in a state 
 of security, and it was the only service of which they were capable. 
 Before these ships can be considered as associated for the purpose of 
 making this capture, some orders must be shown to take them out of 
 the particular service in which they were employed. Besides, the 
 state of the wind was such at the time of capture, that these two 
 ships could not have got out of the bay even if they had not been oth- 
 erwise incapacitated. 
 
 The Kingh Advocate and Arnold, in reply. — As to the disabled 
 state of The Culloden and Northumberland, that is assumed from a 
 description given three weeks before, and it was not then ^aid that 
 they were not in a condition to put to sea under any circumstances. 
 They were at anchor in the JNIarsa Sirocco Bay, respecting which 
 Lord Keith, in his letter addressed to Lord Nelson, when he left the 
 command to him, had said, " that it would be a prudential measure 
 that a force should be stationed in the bay, with a view to secure a 
 place for the disembarkation if it should become necessary." But 
 that was not an order given to these particular ships, and therefore it 
 cannot be said that a new order must be given before they could quit 
 
CASES DETERMINED IN THE 
 
 The GuiUianme Tell. Edw. 
 
 the station. As to the impossibility of their joining in the chase, 
 arising from the state of the wind, that will not exclude them. At 
 Aboukir, The Culloden was on shore during the whole of the action, 
 but she was not, on that account, disqualified from sharing; the 
 belief that she would get off was operating every moment as an en- 
 couragement to our own fleet, and as a source of apprehension to the 
 
 enemy. It is said that these ships were laid up in the 
 [ * 11 ] Marsa Sirocco Bay,. * which we deny, both in respect to 
 
 the place itself, and the condition of the ships. Whether 
 the witness, M'Donald was deceived by the appearance of the storm, 
 or whether he acually saw the flashes of the guns during the chase, 
 ■may be matter of dispute ; but it is certain that the escape of the 
 ■enemy was known on board The Culloden and Northumberland, and 
 it is equally certain, that these two ships were associated with the ~ 
 rest of the squadron, as well in the particular service by which the 
 capture was effected, as in the general service of the blockade of the 
 harbor. 
 
 Judgment. 
 Sir William Scott. The present question arises upon a claim 
 which has been interposed on the part of his Majesty's' ships Cullo- 
 den and Northumberland, to share in this prize as joint captors. It 
 appears that the harbor of La Valette, at Malta, from which this 
 prize (an enemy's vessel of war) was attempting to make her escape, 
 had been for some time blockaded by an English squadron, and that 
 the whole of the island was in possession of the English, and the 
 inhabitants, except this port, which still continued in the hands of the 
 French. The object of the blockade was to reduce the port, and of 
 course to obtain possession of the ships within it. Much evidence, 
 which it is not necessary for me to enter into, has been adduced rela- 
 tive, to the history of the blockade, to show under whose direction it 
 was instituted, and by whom it was carried on. It is an admitted 
 fact, that Sir Thomas Trowbridge had taken the command of the 
 squadron during the absence of Lord Nelson, and that his 
 [ * 12 ] .attention had been particularly directed to the capture of* this 
 and another French ship, which were blocked up in this .harbor. 
 Whether he issued any particular orders respecting these ships has 
 been a subject of controversy between the parties ; but it is of little 
 importance, because, in succeeding to the command, he necessarily 
 , succeeded to all the orders given by his predecessor, and consequently 
 will be entitled under them. These two French men of war were 
 known to be in the harbor, and the obtaining possession of them 
 must therefOTe be presumed to be in the interttion of every ship upon 
 
HIGH COURT OF ADMIRALTY. 13 
 
 The Guilliaume Tell. Edw. 
 
 that service ; for it is not to be lost sight of, that they were associated 
 in one common enterprize, of which the capture of these vessels 
 formed no insignificant part. If this ship had been taken in the har- 
 bor of La Valette upon its final reduction, as the other vessel was, 
 no doubt could have arisen upon the subject ; but as the capture was 
 made at a distance from the port, a question is started, whether it is 
 to be considered as a capture by the whole fleet, or only by the indi- 
 vidual ships by which she was pursued and taken. Now, it must 
 have presented itself to the minds of all the naval oflicers employed 
 upon that duty, that these ships would, if possible, attempt an escape, 
 and there is abundant evidence to show that every precaution was 
 adopted to frustrate the attempt. Every necessary arrangement was 
 made by Sir Thomas Trowbridge with the commanders of the dif- 
 ferent ships, in expectation of this probable event ; they were ordered 
 to be on the look-out, and the proper signals to be used in case the 
 blockaded ships should attempt to escape were regularly communi- 
 cated. It does not appear that any particular ships were assigned to 
 proceed after them, and I think one may see a sufficient 
 reason for that, because * the time of the escape, the course [ * 13 ] 
 they might adopt, and the state of the wind at the time the 
 escape was to be attempted, were all equally uncertain. In such a 
 state of circumstances, no other order could be given than the gene- 
 ral order, that in whichever quarter the attempt might be made, a 
 sufficient number of the contiguous ships should pursue. There was 
 a general communication to all the commanders, that they were to 
 act as emerging circumstances might require ; but it never could have 
 been intended that every ship of the squadron was to join in the pur- 
 suit, when it would have had the effect of opening the harbor for all 
 other blockaded vessels, of which some, in consequence of this total 
 desertion of the blockade, must have effected their escape. The ani- 
 mus persequendi is sufficiently shown by the part which they took in 
 the general plan of cooperation : they were all in readiness to act 
 under the general order to pursue, as occasion might require. Jt 
 appears that they had information not only of the intention to escape, 
 but also in a sort of general though uncertain way of the time and 
 manner of it. It was known that on the first dark night the enemy 
 were to push out some merchant ships as a decoy, and that then The 
 Guilliaume Tell was to follow. She was seen in a state of prepara- 
 tion, and was expected on this day to make the attempt the follow- 
 ing night, so that Sir Thomas Trowbridge, and his ship The Culloden, 
 in particular, would be pretty much on the alert. It is proved, that 
 he ordered a lieutenant and three rnen to be sent alternately from 
 The Culloden and Northumberland, to a post on shore called the Bel- 
 2* 
 
14 CASES DETERMINED IN THE 
 
 The Gnillianme Tell. Edw. 
 
 videre, to give notice of the movements of the enemy, and that upon 
 observing them under weigh, a preconcerted signal was to be 
 [' * 14 ] made from that post, by which it was to be understood * that 
 the French ships were in motion, and that every effort ought 
 to be made to intercept them. The two ships setting up the present 
 claim. The CuUoden and Northumberland, were lying at anchor in the 
 Marsa Sirocco Bay, near Lavalette. The Northumberland had a 
 number of her crew sick on shore at the time, but s^ill she was not 
 disabled by that deficiency of her crew, at least in the opinion of hei 
 comnlander, as she was actually ordered to sea the next morning in 
 pursuit of the French ship, though that order was countermanded 
 upon its being understood that The Foudroyant and Lion were up 
 with the enemy. . It has also been objected, that The Culloden was 
 not in a fit condition to put to sea, in consequence of an accident 
 which she had met with on going into the bay ; but it clearly appears 
 that the damage had been repaired, and in proof of that there is the 
 fact that she afterwards made the voyage from Malta to England, 
 without receiving any further repairs whatever. At such a moment 
 of expectation and anxiety, it cannot be supposed that Sir Thomas 
 Trowbridge put his own ship out, of the course of cooperating and 
 participating in whatever hazards or advantages might arise. It is 
 proved that every evening men were sent from The Culloden and 
 Northumberland to watch the movements of the enemy ; that on the 
 night of the pursuit the signal rockets and the flashes of the guns 
 were seen from these two ships in the neighboring bay, and that a 
 seaman was despatched from the signal station to inform them that 
 The Guilliaume Tell was in motion ; it cannot be denied, therefore, 
 that they knew perfectly well what was going forward,, and that they 
 were cooperating in the measures established generally for prevent- 
 ing the escape. But it has been objected, that they had not 
 [ * 15 ] the physical means of pursuing, because the state of * the 
 wind was such, that, they could not quit the bay. Whether 
 they would havepursued, if it had been physically possible, it is not 
 necessary to inquire. In the case of chasing by a fleet, the animus 
 persequendi in all is sufficiently sustained by the act of those parti- 
 cular ships which do pursue. It is, I think, highly probable, that 
 even if the wind had been fair. The Culloden and Northumberland 
 would have rernained, as some of the other ships off La Valette did, 
 in a state of inactivity, reasonably judging from the precautions taken, 
 and from the flashes of the guns, that a sufficient force had already 
 gone upon the service. Therefore, unless it can be maintained, which 
 it certainly cannot, that the whole of a squadron must in all cases 
 pursue, and that the other ships which remained inactive off La Va- 
 
HIGH COURT OF ADMIRALTY. ^ 16 
 
 The Giiilliaume Tell. Edw. 
 
 lette, are not entitled to share, upon what principle are these two 
 ships to be excluded ? But it has been urged that, as the wind then 
 was, ships of their burthen could not have cleared the shoals so as to 
 get out ; and it comes therefore to a question of law, whether such 
 an inter ventiom of physical impossibilities will exclude a ship forming 
 part of a squadron associated for the express purpose of making the 
 capture. There have been cases in which it has been determined 
 that physical impossibilities of some permanence, and which could 
 not be removed in time, would have such an effect, as for instance, in 
 the case of a ship lying in harbor totally unrigged, which has been 
 held to be as much excluded as one totally unconscious of the trans- 
 action, because by no possibility could that ship be enabled to coop- 
 erate in time. But I take it that in no case the mere intervention of 
 a circumstance so extremely local and transitory as the accidental 
 state of the wind, has been made a ground of exclusion. The 
 interests of joint captors would be placed on a very * preca- [ * 16 ] 
 rious and uncertain footing indeed, if a doctrine were to be 
 admitted which referred them to the legal operation of a casualty 
 so variable in itself, and so little capable of being accurately esti- 
 mated. It being proved in this case, that the whole fleet were acting 
 with one common consent, upon a preconcerted plan for the capture 
 of this prize ; it was as much a chasing under orders from the officer 
 in command, as if it had actually taken place in the open sea. It is 
 a chasing by signal and in sight of these two ships, which, even if 
 they had not been incapacitated by the state of the wind, in all pro- 
 bability would not have thought it necessary or proper to join the 
 pursuit. The cases which have been cited were very different from 
 this ; The Genereux ^ was captured upon the coast of Sicily, at the 
 distance of twenty-two leagues from Malta, by a part of the Squadron 
 which were sent to look out for her, while the rest kept their station 
 off La Valette ; there was no sight, and the utmost they could bring 
 the case up to was, that the firing of guns was heard by one of the 
 stationed ships. In the case of The Mars there was neither sight, nor 
 association, and in The Trautmansdorf^ there was the same defect of 
 a want of association. Now in this case there was not only an actual 
 sight, not only a perfect conusance of what was going forward, but 
 as complete and uniform and persevering an association in this par- 
 ticular object, as well as in the general objects of the blockade, as can 
 be imagined. I am therefore of opinion, that The Culloden and North- 
 umberland are entitled to share, and that the same right will extend 
 
 1 Lords, 7th May, 1803. ^iords, 1st August, 1795. 
 
17 ^ CASES DETERMINED IN THE 
 
 The Thomyris. Edw. 
 
 to the other ships which remained off La Valette, although they have 
 not made themselves parties to this suit. 
 
 [ * 17 ] * Thomyeis, Russel. 
 
 August 9, 1808. 
 
 Spanish barilla going to France — ostensible sale and importation in the port of Lisbon, not 
 held to break the continuity of tbe Toyagfe.i ' 
 
 The question which arose in this case was respecting a quantity 
 of barilla, which had been brought to Lisbon in an American vessel, 
 from Alicant, in Spain, and was there put on board this ship for the 
 purpose of being carried on to Cherburgh. It was contended, on the 
 part of the captors, that this was a mere transshipment of the barilla 
 from one vessel to another at an intermediate port, which, under the 
 authority of former decisions, was not sufficient to break the continu- 
 ity of the voyage. That it must be considered ,as one entire voyage 
 from Cherburgh to Alicant, and consequently that the barilla was 
 subject to condemnation, under the order in council ^ prohibiting the 
 trade from one enemy's port to another. 
 
 On the part of the claimants, it was urged — That there was not 
 merely a transshipment, but an actual sale of the barilla at Lisbon. 
 That it could not be contended that the exportation of goods from 
 Lisbon to Cherburgh was illegal in itself, as it was part of the accus- 
 tomed trade of the country, with which the order in council was not 
 intended to interfere. That the claimants having become purchasers 
 of the barilla at a public sale, they were at liberty to embark in the 
 speculation of sending it to France. That it was anew speculation; 
 originating with themselves, to which the seller was in no respect a 
 party, and consequently that it was impossible to maintain that the 
 present was a continuation of the former voyage. 
 
 f 
 
 J* 18] 'Judgment, 
 
 Sir William Scott. — This was the case of an Ameri- 
 
 ^ [For cases as to continuity of voyage, see the Maria, 5 C. Kob. 365. 
 2 January, 1807. See Appendix. 
 
HIGH COURT OF ADMIRALTY. 19 
 
 The Thomyris. .Edm 
 
 can vessel laden with a cargo of barilla and cotton, and captured on 
 a voyage from Lisbon to Cherburgh. The ship has been-restored, 
 and the court directed further proof to be made of the property of 
 the cargo, and also as to the importation of the barilla into Portugal. 
 The witnesses examined in preparatory, state, that it was brought on 
 board in lighters from an American brig, then at Lisbon ; and the 
 mate, who speaks with less reserve than the others, says, that the 
 brig was called The Hannah, and that he was informed by the crew, 
 with whom he was acquainted, that she came from Alicant, in Spain. 
 This i& a material fact, and it is fully established by the proofs now 
 brought in by the claimants. In the original papers there is nothing 
 particularly pointing to the barilla, so as to furnish any explanation 
 of its former history ; there is only a certificate of the Spanish con- 
 sul at Lisbon, describing generally the whole of the cargo as the pro- 
 duce of the Portuguese colonies. It is quite unnecessary for me to 
 say, that the court can pay no attention to a document like this, 
 which carries upon the face of it the condemnation of its own credit, 
 and it is not much assisted by the kind of apology which has been 
 suggested, that it must have been a mere involuntary mistake of the 
 writer, and not intended to apply to the barilla, because it would be 
 absurd to describe that as coming from places which it is notorious 
 do not produce it.- That is an excuse which cannot be admitted ; it 
 is the duty of every person who grants a certificate to know precisely 
 what it is that he does certify, and to what extent, otherwise all faith 
 in public instruments must be at an end. And when it is 
 said that at any rate this * certificate could deceive no one, [ * 19 ] 
 as it is notorious that barilla is not the production of the 
 Portuguese colonies, I am by no means certain that the fact is of 
 such universal notoriety ; it is, I think, extremely possible that it 
 might be unknown to many of the commanders of his Majesty's crui- 
 sers, some of whom might have been deceived by such a misrepre- 
 sentation. 
 
 In all cases of this description, it is a clear and settled principle 
 that the mere transshipment of a cargo at an intermediate port will 
 not break the continuity of the voyage, which can only be effected by 
 a previous actual importation into the common stock of the country 
 where the transshipment takes place. It therefore becomes abso- 
 lutely necessary that the court should require further evidence upon 
 the subject, because, if there was nothing more than a transshipment 
 of the cargo from one vessel to another, that will not alter the trans- 
 action in any respect, and it must still be considered as the same 
 continuous voyage to the port where the cargo was ultimately to be 
 delivered. It is, however, contended, that there was not simply a 
 
20 CASES DETERMINED IN THE 
 
 The Thomyris. Edw. 
 
 transshipment of this cargo, but likewise an actual sale of it upon its 
 arrival in the Tagus ; and, therefore, that the question arises whether 
 the additional fact of a sale being made of the cargo at the port of 
 transshipment, will, under all the circumstances attending such sale, 
 give it the character of a new voyage, or whether the two parts are 
 so linked together, that it must still be considered as one entire voy- 
 age from Alicant to Cherburgh. The fact that the goods, after their 
 arrival in the Tagus, were converted by sale, has been much relied 
 on as satisfactory evidence of an actual and bond fide importation 
 into the country ; and, generally speaking it is so, because it is to be 
 understood in most cases that goods are actually imported 
 [ * 20 ] * before they can be sold ; but it has never been decided that 
 where goods are brought to an intermediate port, not animo 
 importandi, but sold whilst water borne, and then transshipped, such 
 sale, with transshipment, makes a new exportation from the port in 
 which it is transacted. In order to constitute an exportation, there 
 must have been a previous importation, in the case of commodities 
 not native ; where a cargo is sold to be immediately transshipped and 
 exported, that can never be considered as any importation at all ; it 
 is all one act, of which the sale and the transshipment are only stages ; 
 they lengthen the chain, but do not alter its direction. Now, in this 
 case, the evidence of importation, (and indeed that of sale,) is very 
 imperfectly sustained ; there is no clearance, no custom-house certifi- 
 cate to show that the duties have been paid ; the whole is made to 
 rest on the affidavits of the three persons immediately interested in 
 the transaction, the buyer, the seller, and the broker. And how does 
 the case stand upon their own representation of it ? I shall first con- 
 sider the afiidavit of the seller, the person who is pretended to have 
 imported the goods, if there really was any importation. He says, 
 " that he caused to be sold at public auction to Basto & Co., through 
 the intervention of a public broker, 460 bales of barilla, which were 
 imported by him from Alicant for his own sole account, risk, and 
 benefit, in the American ship Hannah ; that the said barilla was 
 unladen at Lisbon, and weighed and paid the duties at the custom- 
 house, and was afterwards shipped on board The Thomyris." Mr. 
 Basto, the purchaser, swears, " that it was put on board The Thomy- 
 ris after it had been put on shore and paid the duties at the custom- 
 house at Lisbon ; " and the affidavit of the broker is to the same 
 effect. I find difficulty in reconciling this representation of the mat- 
 ter with the account given in the examinations in prepara- 
 [ * 21 ] tory, where it is said, * that the barilla was brought in light- 
 ers from on board an American vessel. Am I to suppose 
 that the barilla w^as first landed and then put on board The Hannah 
 
HIGH COURT OP ADMIEALTY. 22 
 
 The Thomyris. Edw. 
 
 again for the purpose of being transshipped in lighters to The Tho- 
 myris ? Such a circuitous mode of transacting business is not very 
 intelligible ; but taking the fact to be in some way or other as they 
 have represented it, will such a sale as this, of goods not imported, 
 and transferred before any thing that can be deemed an importation, 
 for the avowed purpose of being immediately sent off, break the con- 
 tinuity of the voyage ? It is clear from the broker's account con- 
 tained in his certificate, that it was perfectly disclosed to the seller or 
 his agent, that these goods, which at the time of this sale had never 
 been imported, were to go immediately to Cherburgh. He therefore 
 brings the goods from the enemy's country, without any intention of 
 importation on his part, and instantly transfers them for the known 
 purpose of conveying them to another port of the enemy. The buyer 
 purchases them yet unimported from the enemy's country, and sends 
 them forward, on his own account, to a port of the enemy. How far 
 in substance does this differ from a sale on the high seas, where no 
 custom-house forms whatever would have been interposed ? Here is a 
 custom-house form interposed, provided faith is given to this imper- 
 fect proof of it, amounting to this, that the seller shall, after the sale, 
 pay the duty for the reexportation. So that either the duty of 
 importation has not been paid at all, or the same person who pays it, 
 pays likewise the duty of reexportation, and so combines in himself 
 the characters of importer and exporter. The goods are not delivered, 
 and do not become the actual property of the purchaser till after the 
 charges of exportation are satisfied by the seller, who thus 
 constitutes himself the legal * exporter. A certificate is [*22] 
 exhibited by which some merchants at Lisbon attest, " that 
 to any ship coming from foreign parts, shelter of the cargo is allowed, 
 and that under such shelter goods are sold for reexportation." 
 Goods, then, are sold for this purpose of being carried away, not under 
 importation, but under shelter. There is in fact neither import nor 
 export, but the state raises upon the commodity a transit duty, with- 
 out either the one or the other. This is no breach of the continuity 
 of the voyage ; if permitted, it is clear that there would be no means 
 of preventing an universal evasion of that order which prohibits the 
 trade between the ports of the enemy. The produce of the north 
 might be conveyed to the south, and vice versa by the intervention 
 of merchants stationed at Lisbon, at the mere inconvenience of touch- 
 ing at the Tagus and paying a slight duty of transit. It has been 
 said, and justly said, that it was not the intention of his Majesty's 
 government to break in upon the accustomed trade of neutrals. I 
 am of opinion that this is not so to be considered, even on the 
 supposition that the fact was correctly described on the very defective 
 
23 CASES DETERMINED IN THE 
 
 The Prima Vera. Edw. 
 
 projof of it that has been exhibited. In what sense is it a trade of 
 Portugal ? Here is neither import nor export ; here is nothing but 
 the transit of foreign goods subjected to an operation of finance on 
 the part of the state. How long such a practice has obtained is not 
 shown ; so long as it does not interfere with the rights of third par- 
 ties, it is no subject of the observation of others. But if an occasion 
 arises on which another state acquires and exercises a right of prohi- 
 biting the passage of goods from one enemy's port to another, it 
 appears to fall directly under that description, and is not privileged 
 to elude that right by the plea of being an accustomed trade of the 
 country. Barilla condemned. 
 
 [*23] Prima Vera, Vodonick.i 
 
 August 12, 1808. 
 
 Registrar of Vice- Admiralty Court not responsible for money transmitted under proper pre- 
 cautious and in the usual course of business, for the purpose of being invested in the 
 funds, and afterwards lost by the failure of the consignee. 
 
 In this case certain proceeds, which had been paid into the registry 
 of the Vice- Admiralty Court at Martinique, were remitted to the 
 house of Turnbull, Forbes & Co. by the deputy registrar, to be de- 
 posited in the Bank of England. Owing to some neglect that was 
 not done, and the money was lost in consequence of the failure of 
 that house, while it remained in their hands ; the question therefore 
 was, whether either the registrar or his deputy should be held respon- 
 sible for the loss. 
 
 Judgment. 
 Sir William Scott. This is a question upon which I have 
 deliberated with a considerable degree of anxiety, not on account of 
 any difficulty that appeared to attend the case itself, but from a con- 
 viction extremely painful, that in whatever way it might be decided, 
 a considerable hardship must fall upon persons in no other manner 
 implicated in the loss of this property, than as they are the victims 
 of the imprudence or the misfortunes of others. A part of the cargo 
 of this ship had been condemned as prize by the judge of the Vice- 
 
 1 See Adm. Rep. vol. 5, p. 151. 
 
HIGH COUET OF ADMIRALTY. 24 
 
 The Prima Vera. Edw. 
 
 Admiralty Court at Martinique, the claimant appealed from that de- 
 cision, and the goods were in consequence sold, and the proceeds 
 paid into the registry of that court, to abide the event of the appeal. 
 The appeal was afterwards pronounced to be deserted, and a 
 monition was prayed on behalf of the * captor against Mr. [ *24 ] 
 Martindale, the deputy registrar of the Vice-Admiralty 
 Court, which had ceased to exist, to bring in the proceeds into the 
 registry of this court. Mr. Martindale, who was in England at the 
 tim,e, appeared to the monition, and stated that he had remitted the 
 proceeds to the house of Turnbull, Forbes & Co., of London, con- 
 formably to the directions he had received from Mr. Bentinck, his 
 principal, and prayed to be dismissed. Upon this statement the 
 court declined granting an attachment against him, but refused his 
 prayer to be dismissed, being of opinion that there might still be 
 sufficient reason for holding him before the court, till it had deter- 
 mined upon the question, of loss which has been sustained in conse- 
 quence of the failure of this house of Turnbull & Co., in London. 
 A monition was then applied for by the captor against Mr. Bentinclc, 
 the principal registrar, and an act has been entered into by all the 
 parties, which states the facts of the case, and the grounds upon 
 which they respectively consider themselves entitled to be exonerated. 
 Mr. Bentinck has appeared under protest, probably because the trans- 
 action took place in 'another court; but where a Vice- Admiralty 
 Court has been abolished, this court, in a variety of instances, has 
 felt itself authorized, upon its general jurisdiction, which extends 
 universally over the king's dominions, to interfere, and to supply the 
 remedy in order to prevent a failure of justice. Mr. Bentinck states 
 that he was the principal registrar, and that it was a rule of the 
 court, founded upon an order of the governor, that all proceeds of 
 prize property, under litigation, should be remitted to this country, 
 to be lodged in the public funds, or Bank of England, in the names 
 of the registrar or his deputy, and trustees nominated by 
 wk * parties ; and in this he is confirmed by the judge of the [ * 25 ] 
 court himself, who states in an affidavit which has been 
 brought in, that it was a matter of universal notoriety, that suitors 
 or their agents had not only a right, but were expected by the court 
 to name trustees. This rule, which .appears to have become the 
 general practice of the court, is certainly very fit to be upheld upon 
 every consideration of public convenience and private security ; and 
 it has been made the basis of a general regulation nearly similar, 
 which has since been incorporated into an act of parliament. Mr. 
 Bentinck adds, that he strictly complied with this order, and upon 
 his quitting the island to discharge the duties of another appointment 
 
 EDW. 3 
 
26 CASES DETEEMINED IN THE 
 
 The Prima Vera. Edw. 
 
 elsewhere, he directed his deputy, Mr. Martindale, to conform to it. 
 It is proved by the evidence of one of the partners, that, in pursuance 
 of these directions, Martindale did remit the money in bills to Turn- 
 bull & Co., and he accompanied the remittance with a letter, in 
 which he says, " you will receive inclosed two bills, which together 
 make the total of 4,376/. 16s. lOd., to be placed in the Bank of Eng- 
 land, as nett proceeds of the cargoes- of the brig Rose and ship La 
 Prima Vera, condemned in our court, and ordered to be lodged in 
 the Bank to wait the event of an appeal. Inclosed you will find, my 
 account current with both vessels, and find the sum of 3,167/. 10s. 
 6d. to be lodged as proceeds of the brig Rose, and 1,209/. 6s. 4d. to 
 be lodged as proceeds of the ship La Prima Vera. No trustees have 
 been appointed for La Prima Vera; but for the Rose, Mr. James 
 Sykes, of Arundel Street, London, was appointed on behalf of the 
 captors." It appears, then, by this letter, that no trustee was named 
 
 by the parties, and it is equally clear that the money was 
 [ * 26 ] remitted * to England by Mr. Martindale in pursuance of 
 
 the directions of his principal, and upon these two facts he 
 rests his defence. Mr. Bentinck alleges that the deputy registrar had 
 done all that was in his power to do for the security and investment of 
 the money, by remitting it to a house of undoubted credit at the time, 
 with express directions to invest the same in the Bank of England ; 
 that it was wholly owing to the neglect of the captors or their agents 
 that no trustees were appointed, and that due diligence was not used 
 by them in inquiring whether the money was invested, and in taking 
 care that it should be invested. It is not suggested that either the 
 principal or deputy registrar made any interest of the money whilst it 
 remained in the hands of Turnbull & Co., or derived any advantage 
 from it. But it is urged. on the part of the captor, that Mr. Bentinck, 
 as the registrar, is responsible for all moneys paid into court, for which 
 responsibility he is entitled to an allowance of five per cent., and 
 that in the present instance the registrar or his deputy were bound 
 either to remit the money to the registrar of the Lords of Appeal, fll' 
 to cause the same to be deposited in the Bank of England. It is 
 also stated that frequent applications were made to Mr. Martindale 
 for information as to the manner in which the proceeds had been dis- 
 posed of, and that it was refused ; but this is expressly denied on the 
 other side, and it seems unlikely, as the registrar does not appear to 
 have derived any benefit from the use of the money, and therefore 
 had no interest in withholding it; besides, if he had withheld it, the 
 court upon application would have enforced the communication. In 
 
 answer to the charge of neglect on the part of the captors 
 [ * 27 ] in not appointing a trustee, they allege that their * agent 
 
HIGH COURT OF ADMIRALTY. 28 
 
 The Prima Vera. Edw. 
 
 wrote to his proctor at Martinique, requesting him to move the 
 court to direct that this money should be lodged in the Bank of 
 England in -the names of trustees, and desiring him to nominate Mr. 
 Henry Desborough, of London, for the captors. These are the gene- 
 ral facts of the case, and the question is, on whom the loss occasioned 
 by this unforeseen calamity is to fall. For the captors it has been 
 contended, that both the registrar and his deputy are answerable for 
 all moneys paid into court. I admit it to be true generally that they 
 are answerable for money which they receive, though it may be diffi- 
 cult, in particular cases, to say in what proportion. If the money is 
 lost through the misconduct or negligence of the deputy, he is, I 
 think, sufficiently known to the suitors and to the court to be held 
 personally and directly responsible. How far the principal is bound 
 to supply the deficiency of his deputy, if that should happen, I am 
 not now called upon, by the necessities of the present case, to deter- 
 mine ; but I am inclined to think that he is bound to supply the 
 deficiency, and that he cannot discharge himself of the responsibility 
 of the office by devolving the duty upon another. For the office may 
 be liable for some casualties, and generally when such casualty occurs, 
 the parties, I apprehend, will be answerable to the same extent that 
 they derive the profit, where it arises from a proportion of the fees. 
 Where the deputy is paid by a fixed salary, and the loss arises from 
 no miscBnduct in him, I am not prepared to say that he would be 
 liable, and certainly I cannot go the length of holding that for all 
 casualties, and under all possible circumstances, either the registrar ' 
 or his deputy must be accountable. The registrar is an officer of 
 the' court, he is the receiver of the court, and if he acts 
 * with due diligence in the discharge of the duty which is [ * 28 ] 
 imposed upon him, if he does that which is unavoidable and 
 necessary to be done in the payment or remittance of money, the 
 suitors cannot come upon him. There are one or two cases of high 
 authority which establish this doctrine. In the case of Knight v. 
 Lord Plymouth, 3 Atkins, 480, "a person had been appointed receiver 
 under an order of the court ; he did not think it safe to remit the 
 money to London, and therefore paid it to Winsmore, a considerable 
 tradesman of Worcester, and took bills of exchange from him drawn 
 on persons in London. Winsmore soon after became a bankrupt, 
 and there was an application to the court against the receiver to 
 make good the loss. It was referred to a master to inquire into the 
 fact, who found that it was done for greater safety ; and the court 
 said it would be very .hard to oblige the receiver to make goo^d a loss 
 which was not owing to any default of his ; that as the sum was 
 large, it was a necessary precaution to remit by bills rather than in 
 
29 CASES DETERMINED IN THE 
 
 The Prima Vera. Edw. 
 
 specie, and at the time the money was paid to Winsmore, he had no 
 reason to doubt its being lodged in safe hands, and therefore indem- 
 nified the receiver in the act he had done." There is also a case in 
 Ambler's Reports, p. 218, " ex parte Belchier in the matter of Parsons, 
 a bankrupt, where an assignee employed a broker to sell goods by 
 auction ; the money was paid to the broker, and after remaining in 
 his hands a few days he died insolvent; and the commissioners were 
 of opinion the assignee ought to bear the loss. Lord Hardwicke, 
 Chancellor, after argument at bar, said, if the assignee is chargeable 
 in this case, no man in his senses would act as assignee under com- 
 missions of bankrupt. This court has laid down a rule with 
 [*29 ] regard *to the transactions of assignees, and more so of 
 trustees, so as not to strike a terror into mankind acting for 
 the benefit of others, and not for their own. Courts of law and 
 equity too, are more strict as to administrators and executors ; but 
 where trustees act by other hands, either from necessity or conformity 
 to the common usage of mankind, they are not answerable for losses. 
 If a trustee appoints rents to be paid to' a banker at that time in 
 credit, and the banker afterwards breaks, the trustee is not answer- 
 able." His Lordship then cited the former case, and decided that 
 the assignee ought not to be charged with the value of the goods. 
 Upon these authorities it is only necessary for me to inquire whether 
 the registrar, under a sufficient necessity, and in the usual cflurse of 
 business, remitted these bills to a house of unsuspected responsibility 
 at the time ; if so, he will be exonerated. There was a general order 
 of the court respecting all proceeds of prize property under litigation, 
 and it is shown that the ^eputy registrar complied with the order, and 
 remitted the inoney in bills, w-hich was the only way in which it 
 could be done. He could not remit in specie, and it is not to be ex- 
 pected that whenever money is to be remitted from a Vice- Admi- 
 ralty Court abroad, the registrar should come over to "make the 
 payment himself. In this respect he is in a very different situation 
 from the registrars of this court, who, having immediate access to 
 the Bank, have no occasion to employ an intermediate hand. It is 
 admitted that at the time Tumbull & Co. were perfectly solvent, and 
 I see nothing in the conduct of the deputy registrar that can attach 
 blame to him from the mere circumstance of his having' 
 [ * 30 ] remitted the proceeds through * their hands. The principal 
 registrar stands aloof from the whole transaction, and can 
 only be charged upon the general responsibility of the office. This 
 brings us to another part of the inquiry, whether there have been 
 laches either in the deputy registrar or the captors, in allowing 
 the bills to remain in the hands of TurnbuU & Co. It does not 
 
HIGH COURT OF ADMIRALTY. 31 
 
 The Prima Vera. Edw. 
 
 appear exactly when they became due, but it has been admitted in the 
 argument to have been before the bankruptcy. Now I think it is 
 fully proved that the captor was under an obligation to nominate a 
 trustee. "Was that done ? All that is shown is, that Mr. Desborough 
 of Martinique directed his proctor to nominate his relation, Mr. Des- 
 borough of London, as captor's trustee in all cases ; but it does not 
 appear that this was acted upon by this proctor, or that any motion 
 was made in the court upon this subject. It seems to have rested 
 entirely between the captor's agent and his proctor. Did the captor's 
 agent make any inquiries after the money ? He says he did, but that 
 the deputy registrar hung back. Why did he not apply to the court ? 
 Mr. Desborough certainly had it in his power any hour of the day, 
 when the court was sitting, to obtain the information which he alleges 
 was withheld: he says, moreover, that he was satisfied with the 
 responsibility of the registrar ; if so, the registrar should have been 
 distinctly told that the parties were satisfied with his personal respon- 
 sibility, and how does this accord with the direction which Mr. Desbo- 
 rough states himself to have given to his proctor to nominate a 
 trustee ? I cannot but think that there was an inactivity on the part 
 of the captors, or of the persons employed by them, by which this 
 loss has been occasioned : they never asked how the pro- 
 perty was invested ; their only inquiry * was, whether it had [ * 31 ] 
 been remitted ? It is p.erfectly clear, that in remitting the 
 property to this country in the manner he did, the deputy registrar 
 conformed to the order of the court, and therefore there was no mis- 
 conduct on his part that can fix him with any personal responsibility. 
 At the same time I must observe that he would have done well, not 
 by officiously going out of the limits of his duty, but by that sort of 
 activity of accommodation which is of great use and value in con- 
 ducting the public business of the world, if he had jogged the 
 memory of the captors by reminding them that they had omitted 
 to nominate a trustee. But the question is not how far he might 
 have acted in a more praise-worthy manner, in not confining his 
 information so exactly to the inquiries, but whether there has been 
 that neglect on his part which will affect him with official negligence ? 
 Perhaps he had a right to suppose, if he thought at all upon the 
 subject, that the captors meant to nominate a trustee till he was 
 given to understand the contrary. He appears, throughout the whole 
 of this transaction, to have acted in the usual course, and in strict 
 conformity with his duty ; and if there has been any neglect, I am of 
 opinion that it is to be attributed rather to the agent of the captor 
 than to him. Under these considerations, therefore, I shall exonerate 
 
 3* 
 
32 CASES -DETERMINED IN THE 
 
 The Comet. Edw. 
 
 both the registrar and his deputy from any responsibility on account 
 of this unfortunate loss. 
 
 [ * 32 ] * Comet, Mix.i 
 
 October 25, 1808. 
 
 Breach of the Order in Council of the 11th November, 1807, [App. VI.] American vessel 
 in ballast from New York to Nantes, to bring away goods said to have been purchased 
 before the order issued. Excuse not admitted.^ 
 
 Judgment. 
 Sir William Scott. This is a proceeding against an American 
 vessel which was captured on a voyage from New York to Nantes ; 
 there was no cargo on board, as the ship had sailed in ballast, for the 
 purpo'se, as it is said, of bringing away French produce, which had 
 become the property of merchants in America prior to the date of the 
 order restricting the trade with the enemy's ports. Under that order 
 in council, the port of Nantes, when this vessel sailed, was subject to 
 a rigorous blockade, and it has not been contended generally, that a 
 ship can enter a blockaded port even in ballast ; that is a point upon 
 which this court has already decided ; if wrongly, the decision must 
 be corrected elsewhere. The rule of blockade has, it is true, been so 
 far relaxed as to permit an egress to ships innocently in the port be- 
 fore the restriction was imposed, and even with cargoes, if previously 
 laden ; but in the case of ingress there is not the same reason for 
 indulgence ; there can be no surprise upon the parties, and therefore 
 nothing short of a physical necessity has been adpiitted as an ade- 
 quate excuse for making the attempt of entry. Generally, where a 
 neutral ship is proceeding to a blockaded port, it must be supposed 
 that she is going there for the purposes of trade. If she goes in 
 ballast, it cannot be with the intention of being laid up for an inde- 
 finite time in a foreign port until the blockade is raised. It is a pre- 
 sumption which this court, acting on reasonable principles, 
 [ * 33 ] is bound to entertain and apply, that she has no * other 
 errand there than to keep alive that commercial intercourse 
 
 1 [Affirmed on appeal, March 3, 1810.] 
 
 2 [See The Yrow Judith, 1 C. Rob. 150 ; The Juno, 2 C. Kob. 119.] 
 
HIGH COUET OF ADMIEALTY. 34 
 
 The Comet. Edw. 
 
 ^ ^ 
 
 with the interdicted port which it is the object of the blockade to 
 prevent. In some cases, no doubt, the rules of blockade are attended 
 
 ' with considerable inconvenience to neutrals in abridging their trade, 
 and it is always much to be lamented when they do ; but they are 
 inconveniences which arise necessarily out of a state of war, and what 
 neutrals must submit to, looking as well to the rights of belligerents 
 as to the interests which they themselves derive from their neutrality, 
 and which furnish no small compensation. To say that this property 
 was actually locked up by the blockade, and that there was no other 
 mode of extricating it, is going farther than is exactly true ; many 
 channels of communication are still open, as these states are at peace 
 with each other ; the property might have been sold for its full value, 
 and the money remitted, for it is not to be asserted that at the time 
 this capture took place there was no practicable mode of remittance 
 between France and America. It is stated, I observe, "that the 
 
 'property in question consists chiefly of brandy, and other proceeds of 
 American goods sent in before the restriction was imposed ; " and 
 there is a bond, dated 9th June, 1808, which was found on board, 
 reciting a permission from the President of the United States for this 
 vessel to proceed in ballast to Nantes for the purpose of bringing 
 home brandy and other articles, the property of the claimant ; on 
 condition that she is not to import any other merchandise under a 
 penalty of forty thousand dollars. The words are, " that she shall 
 not, during the voyage, either directly or indirectly, be engaged in 
 any traffic, freighting, or other employment, and that no 
 goods, wares, or merchandises shall be imported *in such [*34] 
 
 .vessel, other than the property for which such vessel has 
 obtained such permission, or the proceeds of property shipped bond 
 fide by a citizen of the United States prior to the 22d day of Decem- 
 ber last." There is nothing in this recital that points to the time at 
 which these return goods were purchased and became the property 
 of the exporter. It is not required that they should have become so 
 before the commencement of the blockade. All that is required is, 
 that they shall be the proceeds (whenever acquired) of goods shipped 
 before such a time ; and it would sufficiently answer that description 
 if they were purchased the week or the day before the permission 
 was obtained. The permission from the President of the United 
 States can only have been intended to exempt this American vessel 
 from the penalties attaching to the violation of their own embargo, 
 for it cannot be supposed that the government of a neutral state 
 would assume to itsejf the power of relaxing a blockade. That right 
 rests in the belligerent alone, and meaning to express myself with all 
 the reverence which is due to the governments of neutral nations, I 
 
35 CASES DETERMINED IN THE 
 
 The Leander. Edw. 
 
 must observe that it is not to be expected that the belligerent country 
 should trust the preservation of its rights to the vigilance of others. 
 The relaxation must be the act of the belligerent upon a representa- 
 tion made on the part of the neutral state, or under a compact 
 between the two governments, where it has been found to press with 
 undue severity on the commerce of the neutral state., The permis- 
 sion which appears to have been given by a former captor to this ves- 
 sel to proceed on her voyage under an ignorance of the law, can make 
 no difTerence. Where there has been misinformation as to 
 [ * 35 ] the fact, it may have a different * effect ; but the neutral is 
 bound to know the law, and cannot allege that he has been 
 ill instructed in that by a belligerent cruiser. If the cruiser had told the 
 parties they might go on whilst they were conusant of the fact of 
 the blockade, such misinformation upon a point of law would not 
 protect the ship. It does not much extenuate the misconduct of this 
 vessel, that she had passengers of a military description on board, 
 though, perhaps, not in such numbers as to produce a condemnation. 
 Ship condemned. 
 
 INSTANCE COURT. 
 
 Leandek, Murray, formerly Lewis. 
 
 Norember 4, 1808. 
 
 Question as to wages earned on an unauthorized expedition.^ 
 
 This was a suit for wages, instituted on behalf of James Minus, 
 who was shipped at New York, in January, 1806, by Lewis, the for- 
 mer master, as a seaman on board this vessel, at twenty-six dollars 
 per. month, of which he received a month's pay in advance. The 
 ship was one of those employed in the expedition against Spanish 
 America, under General Miranda ; and upon her arrival at Jacmel, 
 in the island of St. Domingo, which was within a month from the 
 time of the shipment of Minus, several of the crew were permitted 
 to volunteer their services in the military department of the expedi- 
 tion, and Minus then entered as an artillery man. It was agreed 
 
 1 [The Vanguard, 6 C. Kob. 207.] 
 
HIGH COURT OF ADMIEALTY. 36 
 
 The Leander. Edw. 
 
 between the master and those of the crew who volunteered, that 
 from that period they were to cease to be considered as 
 seamen, and were to receive a quarter dollar per day, and a [ * 36 ] 
 gratification of prize-money and land, in case the expedi- 
 tion succeeded ; but the pay and prize-money was to depend on that 
 event. The expedition having failed. Captain Lewis and several of 
 the crew left the ship, and she afterwards proceeded to Trinidad, and 
 was there sold to the present owners. The remainder of: the crew 
 were paid at the time of the sale, as far as the funds of the former 
 owners would extend, and gave full discharges for the whole amount 
 of their wages. But no demand was made by Minus, or any of 
 those who had volunteered in the military department; as it was 
 understood that their claim to remuneration was extinguished by the 
 failure of the expedition. Minus, some time after, claimed wages of 
 General Miranda ; but on being informed that he was not entitled 
 to any, he commenced these proceedings against the ship. 
 
 Judgment. 
 Sir W. Scott. This question arises on the admission of a defen- 
 sive allegation, offered by the owners of this vessel, in answer to a 
 petition for wages. It appears that, at the time this person entered 
 into the service of the ship at New York as a mariner, she was the 
 property of American owners, but that the vessel has been since 
 transferred to British subjects. Now, although it is a settled prin- 
 ciple for the protection of mariners generally, that wages form an 
 indelible and perpetual lien on the ship, and follow her wherever she 
 goes, it is easy to see the great inconvenience that might arise from 
 •carrying this principle to its full extent in the case of foreign pur- 
 chases. Where an English ship is purchased by English merchants,, 
 the purchasers have an opportunity of becoming acquainted 
 *with all the circumstances, of the antecedent history of the [ * 37 ] 
 vessel ; but, in making purchases of this description, it is 
 scarcely possible for them to inform themselves of all the transac- 
 tions, regular or irregular, in which she may have been engaged. 
 And I should, therefore, be extremely unwilling, without further con- 
 sideration and examination of the subject, to lay down universally 
 that it is a principle which this court is bound to act upon, under 
 all circumstances, with respect to ships purchased of foreigners by 
 British subjects, or by foreigners of British subjects. The allega- 
 tion now offered states many circumstances which are dissembled in 
 the summary petition. It appears that no less than 180 men were 
 engaged on board the vessel, and that the agreement was for a voy- 
 age from New York to St. Domingo and back again to America ; 
 
38 CASES DETERMINED IN THE 
 
 The Leander. Edw. 
 
 whether to North or South America, is' not stated. Now this is a 
 fact that savors very little of a commercial voyage ; they could not 
 have been engaged for the mere purposes of navigation, as it is 
 shown. that fifteen men were amply sufficient for purposes of that 
 species ; and from this circumstance, as well as from general noto- 
 riety in the port from which the ship sailed, it was easy to surmise 
 that the object of the voyage was not commercial. The fact is, that 
 on coming in sight of St. Domingo, the true nature of the voyage 
 was explained to all persons on board. They were told that the 
 ship was destined to form a part of General Miranda's expedition 
 against South America ; and that all those who chose to enlist 
 would be entitled to prize-money and an allotment of lands. This 
 proposal was accepted by the claimant, who entered into a new 
 agreement to serve as a soldier in the expedition ; so that 
 [ * 38 ] here is an end of the former contract, if that * was a con- 
 tract purely maritime. I do not think it material to inquire, 
 whether he was to serve as a soldier or a sailor ; because tbe expedi- 
 tion itself appears to a court of justice merely as an unauthorized, and, 
 consequently, an illegal adventure, not sanctioned by the government 
 of any country, and such as will not support a demand for wages 
 earned in the progress of it. What private connivance or encourage- 
 ment might have been given by any particular state ,'(as has been 
 suggested in argument) does not appear. No public commission or 
 formal authorization of any kind is pretended ; and without some- 
 thing of that sort, alleged or shown, it is the mere unlicensed enter- 
 prise of an individual. To what country the claimant belongs, is 
 not stated. As a British subject, he could not regularly embark in 
 such an undertaking under this military commander, without the 
 authority of his government ; and if he is an American, his own 
 government had prohibited such an engagement by public proclama- 
 tion. If he is a subject of some other country, the general objection 
 holds, that the expedition itself was the unauthorized act of a private 
 person, out of which no legal claims can arise. For that part of the 
 voyage which was legal, it is admitted that the wages had been paid 
 in advance ; and I am clear, therefore, that if this allegation is proved 
 it is of a nature to bar the claim which is set up, especially against 
 the present holders of the vessel, who come in as innocent successors 
 to the former owners, and knowing nothing of her antecedent history. 
 Allegation admitted. 
 
HIGH COUET OF ADMIRALTY." 39 
 
 The Exchange. Edw. 
 
 *Babillion. [ *39 ] 
 
 November 4, 1808. 
 
 A QUESTION arose in this case, whether head-money was due for 
 men escaping on shore where the enemy's ship of war had been ran 
 a-ground and destroyed. The court inquired whether the men were 
 on board at the commencement of the attack, and, being satisfied as 
 to that fact, pronounced head-money to be due. 
 
 Exchange, Ledet. 
 
 December 6, 1808. 
 
 Illegal destination of ship, under order in council 11th November, 1807. Ship condemned; 
 distinction as to cargo overruled. 
 
 This was an American vessel, with sugars from Guadaloupe, 
 bound ostensibly to London, but captured close to Cherburg. The 
 ship had been condemned on a former day, and the present question 
 was, whether any distinction could be made in favor of the cargo, 
 which was claimed on behalf of the house of Simond & Co., of Lon- 
 don. It was stated that, at the time of the breaking out of hostili- 
 ties, considerable debts were due to the house of Simond & Co. from 
 French subjects resident in the island of Guadaloupe, in consequence 
 of which his Majesty's license was obtained, permitting them, through 
 their agents, to receive produce in payment of the debts, and that this 
 cargo was a part of the produce so received, and was consigned to 
 claimants' house in London, by their agents, Ardene & Guery, of 
 Guadaloupe. 
 
 * Judgment. [ * 40 ] 
 
 Sir W. Scott. In this case the Trinity Masters, who were 
 called in as assessors to the court, and upon whose judgment, in matters 
 purely nautical, it feels itself bound to rely, have given a clear and 
 decided opinion that this ship, which had sailed from Guadaloupe, 
 with an asserted destination for this country, was, at the time of 
 capture, attempting to enter the port of Cherburg, in violation of the 
 
41 CASES DETERMINED IN THE 
 
 The Exchange. Edw. 
 
 blockade. The ship has been condemned, and the court reserved 
 * the question respecting the cargo, to consider whether it could be 
 exempted from the fate of the vessel. A representation had been 
 made to his Majesty's government, on behalf of the house of Simond 
 & Co., of this town, stating "that, at the time of issuing the orders 
 for reprisals against France, considerable debts, which had been con- 
 tracted during the time the island was in our possession, were due to 
 their house from French subjects resident in the island of Guada- 
 loupe ; and that there was no reasonable prospect of obtaining pay- 
 ment during the continuance of hostilities, except by employing neu- 
 tral persons to receive produce in the island from those who were 
 indebted to them, and to convey it from thence in neutral ships, and 
 under neutral papers, either to neutral countries or to this country, 
 on account and at the risk of the house in question." Upon this 
 representation his Majesty's license was granted to the parties, to 
 enable them to extricate their property in the manner proposed ; and, 
 under that authority, it is said, these goods were shipped with an 
 
 ostensible destination to Hamburg, but actually consigned 
 [ * 41 ] to the claimants in this country. * It is admitted that there 
 
 is no imputation of fraud against the British merchants, and 
 it is no improper partiality to say that, as a British case, it carries 
 with it every favorable presumption, because the crime would be of 
 a highly aggravated nature if a British merchant, under the shelter 
 of an indulgence granted to him, should become the instrument of 
 effecting the transfer of the enemy's colonial produce to France. 
 The supposition is so monstrous that it cannot be easily admitted ; 
 and, therefore, without meaning to cast any reflection upon the good 
 faith of neutral merchants in other common cases, I say that, as far 
 as the mere presumption of fairness goes, it is certainly of high 
 authority in su-ch a case. On the general circumstances, taken inde- 
 pendently of the fact that the ship was found out of her due course, 
 and in such a situation as to furnish strong ground to suspect that 
 she was going into a French port, I was and still am of opinion that 
 they exhibit a fair case. The only circumstance affecting the mas- 
 ter's credit is one that has been discovered since the decision on the 
 ship, which is, that he had in his possession letters directed to per- 
 sons in different parts of France. This might possibly admit of 
 'explanation, hut, primd facie, it is conduct not only reprehensible but 
 criminal. He was not at liberty, he owed it to his employers, not to 
 carry on the correspondence of the enemy, and more especially in a 
 clandestine manner. This has, in some measure, shaken the credit 
 which I was before disposed to give him in an unlimited degree ; but 
 the strong fact is the situation of the vessel, which was found at day- 
 
HIGH COURT OF ADMIRALTY. 42 
 
 The Exchange. Edw. 
 
 break within four miles of Cape La Hogue, standing directly for the 
 French coast. It is perfectly clear that, if that circumstance 
 * has not received a satisfactory explanation, it is of a [ * 42 ] 
 nature to overrule and control all other presumptions, in a 
 case which is merely circumstantial; and if those who understand 
 such matters, applying all nautical observation to nautical facts, were 
 of opinion that the situation of the vessel could not be accounted for 
 on any supposition of a destination to this country, I must take it to 
 be so. Certainly if this had been left at all ambiguous, and there 
 had been no certain decision upon the point, I should, looking to the 
 other circumstances, have held this to be a fair case ; but those gen- 
 tlemen were decidedly of opinion, after making every allowance for 
 wind and tide and the other accidents of navigation, that the case 
 was clearly made out that the ship was going to a French port. 
 That is a subject upon which the court can go very little way in 
 forming an opinion of its own, and it must act upon the confidence 
 which it places in the judgments of those by whom it has been 
 assisted, and whose intelligence, in matters of navigation, is suffi- 
 ciently attested by the situations which they now hold. This being 
 the case, I am only to consider whether there are any circumstances 
 which can exempt the cargo from sharing the fate of the ship. It 
 has been suggested that, though the ship was going to a French port, 
 it might not be- for the purpose of delivering her cargo there ; but 
 there is no rule which has been more clearly established in principle, 
 than that the port of destination, being an interdicted port, is the port 
 of delivery of the cargo. It is impossible to relax that principle. 
 If it were once admitted that a ship may enter an interdicted port, 
 to supply herself with water, or on any other pretence, a 
 door would-be open *to all sorts of frauds, without the pos- [ *43 ] 
 sibility of preventing them. The court applied the princi- 
 ple when it was first led to the consideration of cases of blockade, 
 and there is none to which it has more inflexibly adhered. I am, 
 therefore, to take the question with this condition, that the ship was 
 going to a French port for the purpose of delivering her cargo ; and 
 I really know of no cases, except those which have been cited, where 
 the owner of the cargo has been relieved from the penalty attaching 
 to the ship. The cases cited, which are familiar to us all, were cases 
 of a supervening illegality, where it was shown that the owner of the 
 cargo stood clear of any possible intention of fraud, and that by 
 proofs found on board at the time of capture and not supplied after- 
 wards. For instance, where orders had been given for goods, prior 
 to the existence of a blockade, and it appeared that there was not 
 time for countermanding the shipment afterwards, the court has held 
 
 EDAV. 4 
 
44 CASES DETERMINED IN THE 
 
 The Asia Grande. Edw. 
 
 the owner of the cargo not responsible for the act of the enemy's 
 shipper, who might have an interest in sending off the goods in direct 
 opposition to the interest of his principal. , And the same indulgence 
 has been exercised where there was no knowledge of the blockade 
 till after the ship had sailed, and the master, after receiving the 
 information, obstinately persisted in going on to the port of his ori- 
 ginal destination. In both these cases the facts speak for them- 
 selves ; there can be no imposition ; the court has only to look at the 
 dates, to satisfy itself of the purity of the owner of the cargo. But 
 in this instance there must either be fraud in the French shipper at 
 Guadaloupe, or the master has been guilty of an act of bar- 
 [ * 44 ] ratry. If the fraud is in the French shipper, it is * not, per- 
 haps, too hard a rule to hold the British merchant bound by 
 his act, as he vouched for his integrity to the British government. 
 At the same time, if the transaction has been conducted in a manner 
 so different from the orders which were given, and these goods were 
 really sent in fraud, the agents who violated those orders will be 
 answerable to their employers. But suppose it to have been an act 
 of barratry in the master, which, I must confess, I think quite incre- 
 dible, without the privity of the agent shippers, it is a misfortune for 
 which a remedy must be pursued against him. Taking it, therefore, 
 at all events to have been a fraud on the British merchants, I find an 
 insuperable difficulty in giving any direct protection to their claim. 
 If the cargo was going on a destination to a French port, in conse- 
 quence of a breach of faith either in the agents or the master, they 
 are to indemnify themselves by recourse against the wrong-doer. I 
 feel myself, therefore, under an obligation to follow up the judgment 
 which has been given by the Trinity Masters upon that fact, and to 
 apply it as well to the cargo as the ship. 
 
 [ * 45 ] * Asia Grande, Antonio Joaquim. 
 
 December 6, 1808. 
 
 Agency ; on objection to report of registrar and merchants, sum allowed by them increased. 
 
 This was a case on an objection to a report of the registrar and 
 merchants, in which a reduction had been made in the sums demanded 
 for agency on the part of the captors during the time this Portuguese 
 vessel was in their custody. The ship was proceeding with a valua- 
 
HIGH COURT OF ADMIRALTY. 46 
 
 The Asia Grande. Edw. 
 
 ble cargo belonging to Portuguese merchants for the port of Lisbon, 
 when she was detained, with many others of the same description, 
 and brought to England, to prevent her falling into the hands of the 
 French, \^^ho were, at that time, in possession of Portugal. Upon 
 the expulsion of the enemy from that country, these vessels and car- 
 goes were restored to the Portuguese proprietors upon payment of 
 the captor's expenses, which then became the subject of reference to 
 the registrar and merchants, and gave rise to the present question. 
 
 1^ 
 
 Judgment. 
 Sir "William Scott. This is a question respecting the amount 
 of the remuneration to which the prize agents are entitled for the 
 trouble they have had in attending to these particular ships and car- 
 goes after they were brought into port. The claim is made on behalf 
 of two houses of agency here in London, and their substitutes at the 
 out-ports ; and the parties, on the other side, are the Portuguese pro- 
 prietors of several ships and cargoes of great value, which were brought 
 in under the embargo, and have since been restored, subject to a vari- 
 ety of expenses and charges, according to the particular circumstances 
 of each case. The agent's charge amounted to from thirty to fifty 
 guineas in the different cases, with twenty guineas addi- 
 tional for * agency at the out-ports, but the registrar and [ * 46 ] 
 merchants have cut down the several sums to twenty guineas 
 for the whole. In general, the registrar and merchants have nothing 
 to do with the question of agency, it is a matter which passes in pri- 
 vate between the captor and his agent, and only comes before them 
 incidental'ly in those cases of restitution, where the court decrees that 
 the captor's expenses shall be paid by the claimant. All agency is 
 pro opera et labora, and the Prize Act fixes it at five per cent, as a fair 
 average, but it gives nothing where the property is restored ; in such 
 cases, it is usual for the agent to charge a gross sum, which I under- 
 stand is commonly fifteen- guineas for agency, and something extra 
 for out-port expenses. I perceive it is stated, by the claimants in the 
 act, that inasmuch as there has been no actual disbursement by the 
 captor in this case, and he is not liable for agency where the property 
 is restored, it is a demand which he can have no right to bring for- 
 ward. This goes to a general denial of the fact upon which the de- 
 mand is made, but I understand, that where expenses are decreed, 
 the practice of late has been to allow this charge. When that prac- 
 tice commenced I cannot say, but I conceive it was settled on an 
 understanding, that some person must be employed to take care of 
 the property, and that the party who has finally the benefit is equit- 
 ably bound to pay. But this general objection has not been mooted 
 
47 CASES DETERMINED IN THE 
 
 ' The Asia Grande. Edw. 
 
 in argument, and, therefore, it is unnecessary for me to, dwell upon it 
 how. I consider the practice to be sufficiently established, and that 
 the registrar and merchants have proceeded on the general propriety 
 and establishment of the rule. The care and attention of the officer 
 who acted as prize-master in bringing home the ship, is represented 
 in the act as highly meritorious, but that is a matter not 
 [ * 47 ] connected with the present question ; and, besides, it appears 
 that an allowance of five shillings per diem has been made 
 to him, and accepted as sufficient on his part. If, however, the ques- 
 tion had been still open, though I approve of what the registrar and 
 merchants have done as acting upon a general rule ; yet where ships 
 of great value were brought into port during a very boisterous season 
 of the year, with turbulent crews on board, which made it necessary 
 to employ persons of a higher station than usual, the court would 
 have been disposed to allow a more liberal subsistence. The act 
 states the substance of the demands, with the grounds upon which 
 they have been resisted ; and I am now to consider whether the court 
 shall not exercise a further discretion, and. increase the allowance 
 which had been made, without meaning in any degree to censure the 
 award made by the registrar and merchants ; for certainly many con- 
 siderations may come under the judgment of the court which it might 
 not be proper for them to attend to. In the first place, I give no 
 weight to the assertion, that nothing is due ; because, if agency 
 has been allowed by practice equitably founded, it is as a general 
 assertion hot true. But to raise a ground for a greater allowance 
 than has been customary, greater merit must be shown, and, therefore, 
 it is necessary to inquire, whether there are any circumstances in this 
 class of cases by which they are distinguished. In ordinary cases of 
 justifiable seizure, the captor has performed a lawful act ; he had a 
 right to bring the vessel in, but it cannot be said that a service has 
 been rendered to the claimant. It is true, that it is a damnum absque 
 injuria, but there can be no claini upon the gratitude of the parties, 
 and, therefore, when the necessary expenses are decreed to the cap- 
 tors, the court is bound to see that it is done with the great- 
 [ * 48 ] est strictness and economy. * But the present class of cases 
 are not of that nature ; here the capture was made, not for 
 the benefit of the captors, but of the captured. The common enemy 
 had overrun Portugal, and an order for the detention of Portuguese 
 vessels was issued by this government to prevent the property from 
 falling into the hands of the enemy. There is something, there- 
 fore, in the nature of these cases which admits of a more liberal 
 remuneration ; the agents of the captors have been the agents of the 
 claimants, and where there is this fundamental distinction, it may 
 
HIGH COURT OF ADMIRALTY. 49 
 
 The Asia Grande. Edw. 
 
 be right to attend to other subsidiary considerations, some of which 
 have weight. The prffl|erty was held throughout under a sort of 
 divided possession, between the prize-master and the Portuguese 
 master of the ship ; there was not an absolute possession, as in the 
 common cases of prize, and this circumstance was the source of some 
 disagreements which have been the subject of frequent reference to 
 the court, in consequence of disputes that naturally arose out of such 
 a situation of things. This would necessarily occasion much addi- 
 tional trouble to the agents, to whom there must have been a perpe- 
 tual recurrence for advice and assistance ; the length of time, also, 
 during which this property continued under the direction of the 
 agents, is another ingredient in the consideration. These are the 
 distinguishing circumstances, though there are others, upon which, if 
 I do not entirely exclude them, I shall not lay any great stress, as 
 they are not peculiar to these cases ; at the same time, the great 
 value of the property, and the tempestuous state of the weather, must 
 be admitted to enhance the trouble, and in a case fundamentally dis- 
 tinguished from others, may sustain a further demand, though they 
 would not themselves lay the foundation for it. In ordinary cases, it 
 is said, that one case balances another, but these are not 
 cases * of ordinary capture ; the property has not b«|i pro- [ * 49 ] 
 ceeded against as prize, it was brought in alio intuitu, and 
 might all have been put into the hands of government agents at first. 
 In the cases of the com ships detained last war, which have been 
 referred to as cases of public capture, government allowed fifteen 
 guineas for agency, and five guineas for out-port charges, but there 
 was the material distinction, that those captures were not made for 
 the benefit of the claimants, but to prevent that species of supply 
 from passing into the hands of the enemy. The case where govern- 
 ment is dealing with its own agents, on ordinary terms, is not the 
 same as where a benefit had been actually conferred upon the parties 
 to whom the property belongs, and who are to bear the burden of 
 paying those by whose services they have been so benefited. There 
 was no ground for any claim upon the liberality of the captured ; and 
 besides the number in those cases amounted nearly to five hundred. 
 Here are only fifteen, and, consequently, the number will not make 
 up for the deficiency of particular cases. Upon the whole, taking 
 these various circumstances into view, although I very much approve 
 what has been done by the registrar and merchants, yet, considering 
 that it is competent for the court to increase the allowance, at the 
 same time that it is its duty to keep matters of this kind within the 
 limits of rigid economy, I think I shall not deviate much from the 
 rule of justice, if I allow one third more. And in apportioning the 
 4* 
 
50 CASES DETERMINED IN THE 
 
 The Nemesis. Edw. 
 
 sum, in consideration of the additional trouble which has been thrown 
 upon the agents at the out-ports by the fr9||ient references made to 
 them, it appears to me to be proper to brin^hem more nearly to an 
 equality with their principals than I should generally think right, and 
 I shall, therefore, a,llow sixteen guineas to the agents in town, and 
 fourteen guineas to their substitutes at the out-ports. 
 
 [ " 50 ] * The Nemesis. 
 
 December 9, 1808. 
 
 Costs and damages on loss of a ship captured on unjustifiable grounds. Navigation Act not 
 considered to extend to Gibraltar. 
 
 This ship was captured at the entrance of the Tagus, by The Prim- 
 rose sloop of war, and sent to Falmouth, where she was afterwards 
 lost. The ship and cargo was clearly English property, and it was 
 urged, on the pftit of the claimants, that there being nothing to justify 
 the detention, it was a case for costs and damages. 
 
 Judgment. 
 Sir William Scott. This is an unfortunate case of a ship and 
 cargo, which was brought into Falmouth Roads, and there lost. The 
 ship was captured on a voyage from Gibraltar to Oporto, with orders 
 to touch at Lisbon, for the purpose of delivering two pipes of wine, 
 which were consigned to Sir Charles Cotton, the British admiral 
 upon that station ; a'nd, in case he found the English in possession 
 of the place, the master was directed to obtain permission to dispose 
 of his cargo there, consisting chiefly of articles of British manufac- 
 ture, and such as were peculiarly adapted to the Lisbon market. 
 There is no defect in the proof of property, as it clearly appears that 
 both the ship and cargo belong to Mr. Tyrwhitt, an English subject 
 residing at Gibraltar, where he holds the office of marshal of the Vice- 
 Admiralty Court. Some observations have been made on the impro- 
 priety of a person in that situation being connected with shipping 
 transactions, and it may be liable to objection ; but that such an offi- 
 cer should be a trader of some species, cannot, I presume, well be 
 avoided, as such offices abroad do not frequently themselves afford a 
 sufficient maintenance. It appears that the ship had been 
 [ * 51 ] proceeded against at Gibraltar, and, on being * restored. 
 
HIGH COURT OF ADMIEALTY. 52 
 
 The Nemesis. Edw. 
 
 was sold by her owner to a Mr. Winter, who again sold her to 
 the present claimant. No objection has been made to the validity 
 of the transfer, though there seems to have been some inaccuracy 
 in the date of the bill of sale, but not ftf a nature to be made the sub- 
 ject of serious observation. 
 
 It is said, that the vessel had no register on board, and that the 
 captor was induced by this deficiency to make the seizure. I cannot 
 bring myself to believe that he considered that as any justifiable 
 ground for detaining the vessel, as he could hardly be ignorant that, 
 being foreiga built, she was not entitled to a British register. It has 
 also been objected that she had iiot her proper proportion of English 
 mariners on board, according to the provisions of the Navigation 
 Act ; that, however, is an objection which could not be noticed in 
 this court; if there was any irregularity in that respect, it would 
 require to be referred to another branch of its jurisdiction. I am 
 informed by those who are likely to be best acquainted with the sub- 
 ject, that it has always been understood that Gibraltar is not within 
 the Navigation Act, and that ships belonging there are not subject 
 to any restrictions which do not specially apply to that place ; it is a 
 mere military garrison, not a colony, plantation, or settlement. In- 
 deed, in many of these possessions of the crown, such as Malta, Gib- 
 raltar, &c., it is absolutely impossible to comply with the regulations 
 of the Navigation Act ; for the requisite number of British seamen 
 can by no possibility be obtained at such places. The orders in 
 council, prohibitory of intercourse, as applicable to Portugal, were at 
 an end at this time, for the French had evacuated the country, and 
 the voyage, therefore, was not only innocent, but useful, contributing 
 to the supply of the British fleet, and of our allies, and pos- 
 sessing every title to favor *and protection. What then is [ "52 ] 
 the treatment which this vessel, owned by a British subject, 
 and coming with so meritorious a purpose, receives from a British 
 officer whose ship was, in fact, a component part of the fleet, and 
 who was bound to do all in his power to encourage the bringing of 
 those supplies which could not be procured from Lisbon, as that 
 place had been long in a state of blockade ? On first seizing the 
 vessel he determined to carry her alongside the flag-ship, which was 
 lying at some distance in the Tagus, and as there was a consignment 
 on board for the admiral, the measure would at all events have been 
 proper, but he changes his mind, and the next day orders her for 
 England. In those peculiar situations, in which gentlemen of the 
 navy are often placed, having to decide and act in an instant on 
 questions which are replete with difficulties that embarrass the court 
 itself, tinder ail the advantages of a deliberate judicial investigation, 
 
53 CASES DETERMINED IN THE 
 
 The Mercurius. Edw. 
 
 it cannot but feel great anxiety to protect them, perhaps, sometimes 
 even beyond what can be strictly reconciled with principle ; but here 
 was no difficulty at all, and if there had been any, the officer might 
 have referred himself to his admiral, who was close to him ; acting 
 under his orders, he would have been protected. It is impossible to 
 conceive the least shadow of an excuse for such conduct. Here is a 
 British ship professing to come and evidently coming for the accom- 
 modation of the admiral and the fleet, and for the supply of the city 
 of Lisbon, now restored to its lawful sovereign ; and yet upon such 
 petty conceits as those which have been suggested, this gentleman 
 forms the selfish determination of running away with the ship to 
 make prize of her. She is sent for England in a most tempestuous 
 season of the year, and continued beating about for a week or ten 
 days, 200 miles to the westward of Lisbon, during which period she 
 sustained considerable damage from the equinoctial gales, 
 [ * 53 ] * and was at length under the necessity of putting into Ma- 
 deira to obtain provisions, in order to proceed to Falmouth. 
 The supercargo says that the captors questioned his right to go into 
 Lisbon ; with what propriety could that be done, when the place was 
 actually in British possession ? He then exhibited sonie bills of ex- 
 change that were drawn upon the admiral, and asked permission to 
 deliver the two pipes of Marcella wine, which were consigned to him 
 in the manifest, but this also was refused, and in terms of insult 
 almost reaching the admiral himself. Such conduct is equally want- 
 ing in respect to the admiral, and in justice to those who were the 
 victims of it ; nothing has been suggested that affijrds any apology, 
 and it is, therefore, with the most perfect satisfaction that I pro- 
 nounce this to be a case of costs and damages. 
 
 Meecueius, Harmens. 
 
 December, 16, 1808. 
 
 The interposition of a British port, held to take the voyage out of the intendment order,' 7th 
 
 January, -1807. 
 
 This was the case of a ship under Bremen colors, which at the 
 time of capture was proceeding with a cargo of brandies on a voyage 
 from Bordeaux to Bremen, but with directions to put into a British 
 port for the purpose of obtaining a license from this government; 
 
HIGH COURT OF ADMIRALTY. 54 
 
 The Mercurius. Edw. 
 
 and the question was, whether an actual destination to a port of this 
 country, according to those directions, was sufficient to counteract the 
 imputation of a fraudulent breach of the order in council, and the 
 effect of a continuous^ intention. 
 
 Judgment. 
 Sir W. Scott. I think I must take it as fully proved, that the 
 intention of the party was to come to this country to obtain a license 
 to proceed to Bremen with the cargo, which, as coming from Bor- 
 deaux, could not otherwise be carried on. This fact is dis- 
 closed * in the papers, and is as strongly guaranteed as any [ * 54 ] 
 fact can be ; and to this 1 have to add, that the court has 
 every reason to presume that the application would have been made 
 to government in a fair, open, and unreserved manner. The parties 
 have acted throughout aperto voto, there is nothing to lead to a sus- 
 picion of disingenuous conduct. Then the question comes to this, 
 whether such a voyage, intended ultimately to Bremen, but first to 
 this country, for the purpose of obtaining a license, without which it 
 was to be relinquished, is a continuous voyage, and, therefore, illegal ? 
 I think clearly not ; it is a contingent voyage, depending upon the deter- 
 mination, not of the parties themselves, but of the British government ; 
 if the ship went on at all, it was to be the act of the British govern- 
 ment. This is very different from the case of American ships touching 
 at their own ports, to which it has been assimilated ; here the voyage 
 was to be continued only if legalized by the government which would 
 nave a right to complain of the illegality ; no two cases can be more 
 unlike. The parties seem to have acted on a persuasion, perhaps too 
 confidently entertained, that such a license would be granted, misled 
 either by some speculative reasonings of their own, or by some indis- 
 tinct experience of what had been done in other cases. They might 
 think that the employment of British agency in the transaction, and 
 other advantages resulting from it to this country, might not be out 
 of the view of the policy of government. It has been objected to the 
 cases of the licenses which have been cited, that they were obtained 
 under special circumstances, and that they do not support the infer- 
 ences which the parties had drawn from them. But supposing their 
 conclusions to be erroneous, yet if there was an honest in- 
 tention on their part, it would be very hard to * visit such a [ * 55 ] 
 case with the penalties of a fraudulent transaction. Where 
 every thing was to be disclosed, and referred to the discretion of the 
 English government, the case cannot be put on a footing with a con- 
 tinuous voyage framed for the mere purpose of a literal evasion. 
 Then it is said that no instructions were given to Mr. Heyman for 
 
56 CASES DETERMINED IN THE 
 
 The Fortuna. Edw. 
 
 the regulation of his proceedings here, in case the license should not 
 be obtained ; that might be an indiscreet omission, but it does not 
 alter the case ; he must then have written for instructions, or have 
 done the best he could at his own discretion under the circumstances. 
 Upon the whole I see no reason to depart from the opinion which I 
 expressed in the case of The Minna, Traab;^ but that, it is said, 
 was a case of circumstances ; and so is every case of this sort a case 
 of circumstances ; and the party had a right to take his chance upon 
 the circumstances of his own case, and to make his application to 
 those who were to judge of the propriety of complying with it. As 
 to any conditions that might have been imposed by the British go- 
 vernment, how does it appear that they would not have been acceded 
 to by the claimant ? If not, there would have been no violation of 
 law, the matter would have ended here, and the voyage have been 
 brought to its termination in a port of this country. I cannot, under 
 any view of the case, bring myself to regard it as a fraudulent con- 
 tinuous voyage ; there was no act either done or to be done to found 
 the imputation of fraud ; on the contrary, there is sufficient proof of 
 an honest intention to come to this country to procure the license, 
 and to act conformably to it when granted, and I shall, therefore, 
 restore on payment of captor's expenses. 
 
 [ *56 ] * Fortuna, Koedt, 
 
 January 27, 1809. 
 
 Freight not due to captor on goods not brought to the original port of destination, though 
 afterwards sold in this country .^ 
 
 The question in this case was whether freight was due to the 
 crown on certain Portuguese goods on board this and other Danish 
 ships which had been detained under the Danish embargo (Septem- 
 ber 2, 1807,) and afterwards condemned to the crown. 
 
 On behalf of the crown, it was contended — That these cases were 
 
 1 October 28, 1807. This was a case very similar ,to the present. The ship was cap- 
 tured on a, voyage from Bordeaux, destined ultimately to Bremen, but with orders to 
 touch at a British port, from whence sbe was to resume her voyage if permitted. 
 
 = [The Friends, Edw. 246.] 
 
HIGH COURT OF ADMIRALTY. 57 
 
 The Fortuna. Edw. 
 
 strictly within the principle of a virtual election, as the cargoes had 
 actually been sold in this country ; and, although at the time of cap- 
 ture they might have gone on to Portugal, the claimants must have 
 brought them back again, as they would have arrived there on the 
 eve of the irruption of the French into that country, and conse- 
 quently that it would not have been an effectual arrival for the pur- 
 poses of sale. 
 
 On the other side, it was urged — That the contract of affreight- 
 ment was not fulfilled, inasmuch as these cargoes were not carried to 
 their port of destination, and that the grounds suggested were insuffi- 
 cient to show a virtual election of the ports of this country. 
 
 Judgment. 
 
 Sir W. Scott. I have no doubt whatever upon the rule to be 
 applied to these cases, as it arises out of the general principle. It is 
 a claim for freight on the part of the crown, upon a supposed right 
 of the captor, to whom the crown is substituted, and whose right is 
 derived from the owner of the captured vessel. It is possible that 
 under certain circumstances, the crown may not succeed to all the 
 rights of the captor, and still more possible that the captor 
 may not succeed * to all the rights of the owner of the cap- [ * 57 ] 
 tured vessel. But the first inquiry is, whether the owner 
 would have been entitled to freight. He could have no right but 
 upon an entire execution of the contract, or such an execution as he 
 could effect consistently with the incapacities under which the cargo 
 might labor. Where such an incapacity on the part of the cargo 
 occurs, he has done his utmost to carry the contract on to its con- 
 summation; it is a final execution as to the owner of the ship, inas- 
 much as it does not lie with him that the contract is not performed. 
 On the other hand, where the vessel itself is incapacitated, no right 
 accrues to her owner; he can have no right to demand that for 
 which he stipulated only on the performance of his engagement. 
 
 The general principle has been stated very correctly, that where a 
 neutral vessel is brought in on account of the cargo, the ship is 
 discharged with full freight, because no blame attaches to her ; she 
 is ready and able to proceed to the completion- of the voyage, and is 
 only, stopped by the incapacity of the cargo. In all cases in which 
 the captor has received freight, the contract had been consummated, 
 and the goods brought to the original port of destination ; and to 
 this rule the Demarara cases furnished not an exception, but only a 
 fait application of the principle. In those cases the English owners 
 made an affidavit in support of their claim, stating that they would 
 
58 CASES DETERMINED IN THE 
 
 The Fortuna. Edw. 
 
 have brought the cargoes direct to this country, but that they were 
 obliged, by the law of Holland, to proceed first to a Dutch port, 
 meaning afterwards to bring them on to England. It appeared, 
 therefore, on the affidavits of the claimants themselves, that the ports. 
 
 of this country were those to which they would primarily 
 [ * 58 ] and preferably have proceeded, if * they had been permitted ; 
 
 and, consequently, as the goods were, in fact, brought to 
 their real, fhough not their actual destination, the court was of opi- 
 nion that the captors were entitled to freight. But these are cases 
 of Danish ships that were going to Portugal with Portuguese cargoes 
 on board, and were stopped. Why ? Not on account of the goods, 
 which at that time were entitled to a free passage to Portugal, but 
 on account of the ships which were detained under the embargo 
 on the commencement of hostilities between this country and Den- 
 mark. The ship was the subject of detention, not the goods, which 
 might have gone on ; and, therefore, the owner of the vessel had no 
 right to say that freight was due, still less has the captor or the crown. 
 Whether, as the cargoes were brought into the ports of this country, 
 the parties may have thought proper to dispose of them here, is a 
 matter into which the court w^ill not inquire, because it lays aside all 
 considerations of more or less advantage arising to the property from 
 the change of destination ; that is merely an accidental circumstance 
 which has no connection with the jwinciple upon which freight is 
 given. It may happen that cargoes are sometimes brought, to a more 
 beneficial market in consequence of capture ; but the court will not 
 institute an inquiry into such a fact, laborious in its process, and un- 
 certain in its result, when the only question is, whether the contract 
 of affreightment has been fulfilled or not. But it is said that these 
 ships were taken at a time when this country and Portugal were in a 
 state of hostility, or rather of approaching hostility ; and it certainly 
 
 did happen afterwards, that in consequence of the unfor- 
 [ *59 ] tunate * predicament in which that country was placed, the 
 
 goods could not go on, but there was not an existing inca- 
 pacity upon them at the time of capture ; it was entirely owing to 
 the ship that they were prevented from proceeding to tb£ port of their 
 destination. The court sometimes looks to the circumstance of an 
 approaching war, where the expectation of such an event appears to 
 have guided the conduct pf the parties themselves when the con- 
 tracts were entered into, and in such cases it feels itself justified in 
 applying the principles that belong to a state of actual war. But 
 nothing of that kind appears in the present case; there is no part of 
 the transaction that points to such an expectation, and, therefore, the 
 mere existence of a state of things, verging to hostilities between the 
 
HIGH COUET OF ADMIRALTY. 60 
 
 Neustra Senora de Los Dolores. Edw. 
 
 two countries, is a circumstance which the court cannot take into its 
 consideration. No freight due. 
 
 * Neustea Senora de Los Dolores, Morales. [ * 60 ] 
 
 March 1, 1809. 
 
 Decree for costs and damages. Eights of claimant revive on the return of peace, no step 
 being taken daring the interval of war, declaratory of the forfeiture of those rights to the 
 crown.i 
 
 This was the case of a Spanish ship which had been captured 
 before Spanish hostilities, and restored with costs and damages ; but 
 no further proceedings took place at the time, in consequence of the 
 breaking out of the war between the two countries. An applica- 
 tion was now made to the court for a reference to the registrar 
 and merchants, on the ground that hostilities having ceased, the 
 Spanish claimant was entitled to the benefit of the former decree for 
 costs and damages. 
 
 Arnold and Swahey, in support of the application, contended, 
 that the Spanish claimant having obtained a decree for costs and 
 damages, his right of action which had been suspended by the inter- 
 vention of hostilities, revived again upon the return of peace in the 
 same manner as any other civil right. 
 
 Addams, contrd. It may be true that municipal rights are only 
 suspended by the intervention of war, but it is not so with respect to 
 those rights that arise out of the law of nations ; they are extin- 
 guished by war, which destroys all relations between the belligerent 
 countries. The Spanish claimant does not now stand in the same 
 situation relatively to this country, in which he stood before the war ; 
 he was then a neutral, he is now an ally, and, therefore, he is not 
 restored to his original character. If the ship and cargo 
 had remained in a port *of this country, the costs and [*61 ] 
 damages might have enured to the crown by a judicial pro- 
 ceeding as appendant to them on the breaking out of the war. But 
 
 1 [See The Rebecca, 5 C. Eob. 102 ; Nostra Signora, &o., 1 Dod. 299.] 
 
 VOL. I. EDW. 5 
 
62 CASES DETEEMINED IN THE 
 
 Neustra Senora de Los Dolores. Edw. 
 
 there was no such proceeding, and as war extinguishes all rights of 
 this description, the Spanish claimant, at all events, can have no 
 title. 
 * 
 
 Arnold and Swabey, in reply. The distinction which has been 
 attempted to be made between municipal rights and those which 
 arise out of the public law of Europe cannot be sustained. In both 
 cases, the effect of intervening hostilities is, that the parties are no 
 longer able to prosecute their rights either in "the municipal courts, or 
 in those in which the law of nations is administered. As the objec- 
 tion that the party is not restored to the same character, as he is now 
 an ally, if the one case could be more favorable than the other, he 
 would not d fortiori, as an ally lose a right which he had before only 
 as a neutral. It is said, that if those rights survive at all, they sur- 
 vive to the crown ; but that goes no further than the continuance of 
 the war during which the crown might have interposed its claim if it 
 had thought proper. But where that has not been done, where no 
 seizure has been made on the part of the crown, the right of property 
 remains in the same state in which it was before hostilities; it is 
 only jus ad rem, of which the right does not vest of itself. The right 
 to the thing is not extinguished by war ; it is the power of suing for it 
 which is suspended, and the cause of that suspension being removed, 
 the party may now pursue his right in the same form and with the 
 same effect as before. 
 
 [ * 62 ] * Judgment. 
 
 Sir W. Scott. I am clearly of opinion that the objec- 
 tion is not sustainable; it is true that the intervention of hostilities 
 puts the property of the enemy in such a situation that confiscation 
 may ensue, but unless some step is taken for that purpose, unless 
 there is some legal declaration of the forfeiture, the right of the owner 
 revives on the return of peace. This is an acknowledged principle 
 in the courts of common law, borrowed, in all probability, from the 
 general law of nations, and I see no reason for any distinction here. 
 We know that, in captures at sea, the general law is, that the bring- 
 ing iji/ra p/-«sM.a, and even a sentence of condemnation is necessary 
 to convert the property ; and although in some instances, positive in- 
 stitutions have determined that a possession of a certain number of 
 hours is sufficient, yet this proceeds upon the ground that a posses- 
 sion of so many hours is an evidence of firm possession. Here there 
 was no bodily possession, nor, indeed, could there be ; but still, some 
 judicial act might have been done declaratory of the forfeiture to the 
 crown of those rights which vested in the claimant under the decree 
 
HIGH COURT OF ADMIRALTY. 63 
 
 The Bellona. Edw. 
 
 for costs and damages. It appears, however, that no step was taken 
 for this purpose on the part of the crown ; and I am, therefore, of 
 opinion, that the rights of the Spanish proprietor do revive, and I 
 refer it to the registrar and merchants to ascertain the amount of the 
 compensation to which he is entitled under the decree. 
 
 "Bellona, Volte. [ * 63 ] 
 
 Marcli 1, 1809. 
 
 Joint capture. Revenue cutter not entitled to share merely on the ground of being in sight. 
 
 In this case a claim of joint capture was set up by a revenue cut- 
 ter, on the ground of being in sight. There was no act of assistance, 
 and therefore the only question was, whether the revenue cutter, upon 
 the mere fact of sight, must necessarily be presumed to have the ani- 
 mus capiendi so as to entitle her to share. ' 
 
 For the captor, the King's Advocate and Swahey contended — 
 That a revenue cutter was to be considered as a private ship of war, 
 and that the fact of sight, without cooperation, would not entitle 
 her to share with the actual captor, which was in this case a king's 
 ship. 
 
 On the other side, Adams and Jenner. It is true that the mere 
 fact of sight will not entitle a privaljeer to share with a king's ship ; 
 because a privateer may choose whether she will pursue or not, and 
 consequently the animus capiendi is not necessarily to be presumed. 
 But revenue cutters stand upon a different footing, and cannot be 
 classed, in all respects, with private ships of war. In the case of 
 The Active,! -w^hich had been recaptured by an armed revenue cutter, 
 a question arose whether the recapturing vessel was to .take a sal- 
 vage of one sixth, as a private ship of war, or whether she was to be 
 considered as a king's ship. The court, in that case, gave only a 
 salvage of one eighth ; and therefore if vessels of this description are 
 to be considered as king's ships where it operates to their disadvan- 
 
 1 Adm. May 10, 1798. 
 
64 CASES DETERMINED IN THE 
 
 The Bellona. Edw. 
 
 tage, they are clearly entitled td the same character, where it 
 [ * 64 ] may have a beneficial effect. * These vessels are in the 
 
 public service ; they are a description of force relied on for 
 the public security ; and it cannot be said, because the protection of 
 the revenue is superadded to their other duties, that the capture of 
 the enemy is not their imrhediate duty. 
 
 The King's Advocate. The case which has been cited has been 
 long overruled in this court, which gives one sixth to revenue cutters, 
 the same as to privateers, in cases of salvage. 
 
 Judgment. , 
 
 Sir W. Scott. This is a question arising on the admission of 
 an allegation, stating an interest, as joint captor, on the part of The 
 Falcon, revenue cutter, armed with a commission of war. I observe 
 that there is no averment of actual cooperation, or that there was any 
 indication of a design to cooperate in the capture ; all that the alle- 
 gation pleads is, the mere fact of sight, and therefore if this revenue 
 •cutter is entitled to share, it must be upon the ground of construct- 
 ive assistance. It is a known rule of law, that the mere fact of 
 being in sight would be sufficient to entitle a king's ship ; because, 
 in ships fitted out by the state for the express purpose of cruising 
 against the enemy, the animus capiendi is always presumed, but this 
 presumption does not extend to privateers. In the one case, the 
 duty is obligatory ; in the other, where private individuals make cap- 
 tures at their own expense, they are engaged in a mere commercial 
 speculation, to be carried into effect by military means, but depend- 
 ent upon their own will in the particular acts and exercises of their 
 authority. Although they are authorized, they are not commanded 
 to capture ; it is a matter in which they are left to their 
 [ * 65 ] * own discretion. But these vessels, employed in the ser- 
 vice of the revenue, are a class of ships of an anomalous 
 kind, partaking in some degree of both characters. They belong to 
 the government, and are maintained at the public expense ; but it is 
 not for the purpose of making captures from the enemy. On the 
 other hand, they have commissions of war ; but then these are pri- 
 vate commissions, which impose no peculiar duties upon them. 
 They are not bound to attack and pursue the enemy more than 
 other private ships of war ; and they are likewise unfavorably distin- 
 guished in this respect, that the advantages of capture are not held 
 out to them, the interest of all captures made by them being reserved 
 to the crown. Primarily, their duty is to protect the revenue, and 
 the capture of the enemy's vessels ,is ingrafted upon their original 
 
HIGH COURT OF ADMIRALTY. , 66 
 
 The Belle. Edw. 
 
 character. All they derive from these commissions is an authority 
 to attack the enemy, in addition to other authorities that belong to 
 their original and proper employments ; on principle, therefore, they 
 can only be considered as private ships of war. They are under no 
 injunction to cruise against the enemy, and are, employed generally 
 for fiscal purposes. It is true that there is the addition of a military 
 commission in time of war ; but that does not designate them anew ; 
 it merely puts them on a footing with other private ships of war, and 
 I shall therefore reject the allegation. « 
 
 • 
 
 * INSTANCE COURT. [ * 66 ] 
 
 Belle, Betts, master. 
 
 March 8, 1809. 
 
 Salvage not due to a king's ship, for rescuing from the hands of the enemy a hired transport 
 employed in the same expedition.i 
 
 This was an application for the salvage of a hired transport, which 
 had been deserted by the master and crew in the harbor of Corunna, 
 and was brought out by Lieutenant Fisher, of his Majesty's ship, 
 Resolution. The vessel had sailed with many others for Corunna, 
 under the protection of several men-of-war, for the purpose of bring- 
 ing away the British troops under Sir John Moore ; and in executing 
 that service she grounded in the harbor,'where she was abandoned by 
 the persons on board, from an apprehension of falling into the hands 
 of the French, who were at that time investing the place. 
 
 In support of the claim, the King's Advocate and Jenner. This is 
 a proceeding, on the part of Lieutenant Fisher, to obtain some com- 
 pensation for his trouble and risk in bringing off this vessel. It 
 appears that about five o'clock in the afternoon of the 17th January, 
 1809, he was sent into the harbor of Corunna, in the cutter belonging 
 to his Majesty's ship. Resolution, for the purpose of taking out troops 
 from a transport which was on shore ; but he found that the service 
 had been performed by some other boats, and that the ship had been 
 
 1 [See The Wight, 5 C. Kob. 315.] 
 
 5* 
 
67 CASES DETERMINED IN THE 
 
 The Belle. Edw. 
 
 set on fire. He then observed The Belle lying in the harbor, and, 
 upon going to her, discovered that she had been deserted. Lieute- 
 nant Fisher immediately, with his boat's crew, took posses- 
 [ * 67 ] sion, * notwithstanding the shot from the enemy's batteries 
 fell near the ship ; and the wind having shifted sufficiently 
 fair to enable him, tiiough with some difiiculty, to weather the rocks, 
 he caused the cable to be cut, and made sail into the bay, where he 
 anchored near his own ship. The master, in his protest, admits that 
 the vessel would Jiave been lost but for the exertions of Lieutenant 
 Fisher, who is therefore fairly entitled to sonfe recompense for the 
 service he has rendered. 
 
 On the other side, Arnold. This is altogether an unprecedented 
 demand ; it is for th^ salvage of a transport in his Majesty's service, 
 which was sent to Corunna, with other vessels of the same descrip- 
 tion, under the protection of several men-of-war, of which The Reso- 
 tion was one. It was a joint service, in which the men-of-war and 
 transports were associated, and it happened that, in the course of 
 that service, this vessel got into danger and was rescued by Lieute- 
 nant Fisher. But this was no more than his duty, with respect to 
 this or any other of the ships employed in that service, whether the 
 danger arose from the enemy or from any other cause. The trans- 
 ports were to take on board the troops, and the ships of war, and of 
 course the officers belonging to them, were sent /or the express pur- 
 pose of protecting these vessels, and it was their duty to give every 
 assistance in their power. 
 
 In reply, the King's Advocate. Although this vessel was a trans- 
 port in his Majesty's service, and employed for a particular purpose, 
 she was still under the care of the master, who was appointed by the 
 
 owner. This was an act of dereliction on the part of the 
 [ * 68 ] master * and crew, and as the property was recovered for 
 
 the owner by the exertions of this officer, he is entitled to 
 some remuneration. It is true there was an association for the pur- 
 pose of affording protection to these vessels ; and so it is in the case 
 of convoying ships, which are, nevertheless, entitled to a salvage for 
 the recapture of vessels sailing under their protection. 
 
 Judgment. 
 Sir W. Scott. This is a case of rather a novel nature, and, in 
 ■order to estimate the merits of the claim of salvage which is set up, 
 it is necessary, in the first place, to consider under what circum- 
 stances the desertion took place. It is stated that, upon her arrival 
 
HIGH COURT OF ADMIEALTY. 69 
 
 The Belle. Edw. 
 
 at Corunna, the ship was warped in close to the town, and troops were 
 embarked on board, under the orders of Lieutenant Debenham, the 
 agent for transports ; that next day, the wind having been changed 
 to the southward and blowing with great violence, there was reason 
 to believe that the transport, which was on shore in the harbor, could 
 not be removed, and the troops were conveyed on board another 
 vessel. It appears, therefore, that she was brought into this difficulty 
 in the execution of a service in which the men-of-war and transports 
 were associated ; and it was not till the unfavorable state of the 
 wind made it improbable that she could be got off undisturbed by 
 the enemy, whose batteries already commanded the harbor, that the 
 lieutenant thought himself justified in withdrawing his crew. Such 
 an abandonment is no breach of duty ; it was incidental to the 
 service in which the vessel was engaged. The wind afterwards 
 changed, and Lieutenant Fisher, who had gone into the harbor upon 
 another errand, found means to extricate this vessel. No 
 doubt he is entitled to great * credit for the manner in [ * 69 ] 
 which he exerted himself; but if he saw that it was in his 
 power to bring the ship out, it was a part of his duty, and what he 
 was bound to do. The praise of having discharged that duty, in 
 defiance of whatever hazards may have attended the enterprise, will 
 not be denied him ; but it is impossible to mete out particular 
 rewards for every danger and difficulty that is encountered by offi- 
 cers in the course of an arduous service. The withdrawing the 
 vessel from the grasp of the enemy, at such a moment, was undoubt- 
 edly meritorious ; but as to any claim in the nature of salvage, it 
 might as well be contended for wherever one of his Majesty's ships 
 receives assistance from another in battle. The admission of such a 
 principle would have the effect of converting every engagement into 
 a struggle for salvage, and must be attended with incalculable mis- 
 chief to the public service. I shall, therefore, reject the petition for 
 salvage, and content myself with allowing the expenses of bringing 
 the matter before the court. 
 
70 CASES DETERMINED IN THE 
 
 The Principe Athaelante. Edw. 
 
 [ * 70 ] * The Principe Athaelante. 
 
 March 10, 1809. 
 
 Captor's expenses allowed, deducting charges incurred by the ship in consequence of their 
 
 misconduct. 
 
 The question in this case was, whether the captors were entitled 
 to their expenses, which, in the common course of these Portuguese 
 cases, had usually been allowed. The ship and cargo had been pro- 
 nounced to be Portuguese property, reserving the question of captor's 
 expenses ; and it was now objected that the captors were not entitled 
 to that indulgence, as they had misconducted themselves by carrying 
 the vessel into an improper port, in consequence of which she sus- 
 tained damage, and it became necessary to unliver the cargo. 
 
 Judgment. ^ 
 
 Sir W. Scott. This is the case of a Portuguese ship of very 
 large dimensions, which was proceeding, at the time of capture, with 
 a cargo from one of the Portuguese settlements to Lisbon. ' The de- 
 tention of the ship was, at the time, perfectly justifiable, as it was for 
 the purpose of preventing her from falling into the hands of the 
 French, who were then in the possession of Lisbon. The court has 
 always held in these cases that the captors are entitled to full 
 indemnification for any expenses which may have arisen ; and it is 
 with pain that it ever feels itself compelled to deviate from the rule. 
 But it would be carrying this indulgence of the court much too far 
 to say, that upon restitution of the property, the Portuguese owners 
 
 should be answerable for expenses wantonly incurred 
 [ * 71 ] against all reason and judgment. It appears that the * ship 
 
 was first brought into the Channel, under pretence of carrying 
 her to a port in England, but that the prize-master afterwards shaped 
 his course for Guernsey, contrary the representations of the master of 
 the ship, who conceived that it was not a proper place for the reception 
 of so large a vessel. It is no justification to say, that this was the 
 port to which the privateer belonged, and that, therefore, it was the 
 proper port to carry her prize to. That is not necessarily so. The 
 first point to be looked to is the security of the vessel seized, and 
 every one must see that the road of Guernsey was not a fit place for 
 that purpose. The Portuguese master took the alarm, and called the 
 crew together to protest, but still the ca,ptor persists in his intention 
 of carrying this vessel into an open port, in the winter season of the 
 
HIGH COURT OF ADMIRALTY. 79» 
 
 The Prosper and Holstein. Edw. 
 
 year. To say that every attention was paid to her security after- 
 wards, is not sufficient ; if she was put into a state of insecurity, that 
 act cannot be purged away by any subsequent care during her con- 
 tinuance in so hazardous a situation. It was evident she could not 
 remain there till the case was determined ; and if any expense has 
 arisen in consequence, it must fall upon the captors. It has been 
 said, that they offered to convey her to a port in England afterwards, 
 and that the offer was refused by the Portuguese master ; but how 
 was his consent in any degree necessary, when they had the ship in 
 their hands, and under their control? As far as I can collect the 
 fact, it was thus : finding the ship was not in good condition, and 
 that the capture was not likely to end in a condemnation, the captors 
 were desirous of getting rid of the matter, and made an offer to the 
 naaster to proceed to Portsmouth, on his own responsibility. 
 Now, if that was the proposal, if he was to *take the risk [ *72 J 
 upon himself, it was an offer which he was not only not 
 bound to accept, but an offer which it was his duty to reject. I am, 
 therefore, of opinion, that the captors are not exonerated ; and in 
 granting them their expenses generally, I shall disallow the expense 
 of the unlivery of the cargo, which became necessary entirely from 
 their own misconduct, in -carrying this vessel to a place where she 
 could hardly fail to receive some damage, and that, too, in opposition 
 to the representations of the master. 
 
 * The Pkosper, Classen. Holstein,' Jobs. 
 
 April 25, 1809. 
 
 Freight given to the crown as succeeding to the rights of the enemy ship-owners. Though 
 not decreed prior to the breaking out of hostilities. 
 
 These Danish ships had been captured on a voyage from Ton- 
 ningen to Lisbon, with cargoes documented as Portuguese property, 
 and ultimately restored as such. The ships had been restored by 
 consent in the first instance, reserving the adjudication of the cargoes 
 and the question of freight and expenses. It was now submitted to 
 the court, that in consequence of the subsequent intervention of 
 Danish hostilities, these freights should be condemned to the crown. 
 
 September 10, 1807. The King's Advocate and Bwahey, on the part 
 
173 CASES DETERMINED IN THE 
 
 The Prosper and Holstein. Edw. 
 
 of the crown, cited the clause in the order in council, which directs, 
 " That all freight money due or payable to or on behalf of any per- 
 son or persons, being subjects of Denmark, shall be forthwith paid 
 . into the registry of the High Court of Admiralty, (except where 
 
 bail is hereinbefore directed to be taken for the same,) 
 [*73] * there to remain till his Majesty's pleasure should be 
 
 further known, or until other provisions shall be made by 
 law," and contended that, although the decree for freight had not 
 been made in the^present instance, it was clearly due to the Danish 
 owners of these vessels, and as such it must now pass to the crown. ' 
 
 Arnold, Addams, Jenner, contrd. The clause in the order in council 
 is limited to freight due or payable, which presupposes either an 
 actual decree of the court, or a consent given on the part of, the 
 owner of the cargo, which is equivalent to a decree of the court, 
 for, although it vests the right in a different way, the principle is the 
 same. But where a right has not vested in the ship it cannot go to 
 the crown with the ship which was the subject of condemnation. 
 This approaches to the case of capture where a freight is not payable 
 as, of course, to the captors having condemnation of the ship ; but is 
 decreed by the court upon its being shown that the cargo has been 
 brought to the port of destination. The question is reduced to this, 
 whether the crown succeeds to all rights which would have enured to 
 the Danish master if he had continued neutral, or to those only which 
 were vested in him at the tinie hostilities took place. When it is 
 said that the crown succeeds to all the rights of the Danish master, it 
 must be limited to vested rights ; there might be rights against the 
 ship on behalf of third persons ; a right of action, for instance, on a 
 bottomry bond, and it would be impossible to contend that the 
 crown has all the rights of the Danish master, and yet has no part 
 of that onus which he would be obliged to sustain. 
 
 [ * 74 ] * The King's Advocate and Swabep, in reply. The rights 
 did vest in the Danish master till they were divested by 
 the crown ; this is not a proceeding to exact a debt due to a ship of 
 an extrinsic nature, as, for instance, a former freight, or any other 
 right accruing to the Danish master extrinsically, quoad the subject 
 of the present capture. But the question is, how much of the pro- 
 perty, now under the custody of the court, is to be considered as 
 Danish, and how much as Portuguese. The cargoes were in the 
 custody of the court, and there comes an order directing that all 
 Danish property shall be detained. The words are, " Thait no pro- 
 perty appearing to belong to any subject of Denmark, respecting 
 
HIGH COURT OF ADMIRALTY. 75 
 
 The Prosper and Holstein. Edw. 
 
 which proceedings are now depending, or shall hereafter depend, in 
 any of his Majesty's courts of prize shall be decreed to be restored." 
 Now, this is a property under proceeding, It is a demand on the 
 cargo to pay the freight ; it is a right or species of property with ' 
 respect to which the ship has a lien where there is no obstruction to 
 such demand from collateral circumstances. The court would, in 
 this instance, have decreed it to the Dane, and it is, therefore, pro- 
 perty which the crown may attach as well as any other. In this view 
 this is not a question whether the court would proceed to exact an 
 extrinsic debt due to the ship ; it is a mere question as to the appor- 
 tionment of the property waiting the judgment of the court. In the 
 • subsequent clause of the order, the words " all freight money due or 
 payable," are to be taken without limitation to property actually 
 vested by a decree of the court. But in this very clause there is an 
 exception, referring to a former part of the order, where it is 
 directed, that under certain circumstances " goods laden * in [ * 75 ] 
 or consigned to the ports of this country shall be delivered 
 up to the laders or consignees, upon bail being given for the pay- 
 ment of the freight into court," so that the order looks generally to the 
 payment of freight under contract, and not merely under the decree 
 of the court. There could be no reason for such a distinction, be- 
 cause the difficulty of ascertaining whether the freight is due at all 
 is not greater than the difficulty of ascertaining the amount where 
 the decree that it was due had passed ; in either case the claimants 
 of the cargo would equally have the benefit of whatever they might 
 have to offer in the way of objection. The court has not been in the 
 habit of restricting its decrees to freight already pronounced to be 
 due. It has occurred in many recent captures of Danish vessels under 
 the embargo, that where the cargo has been condemned to the captor, 
 as enemy's property, freight has been given to the crown against the 
 captor. It is also to be considered, that this was a preliminary order 
 for the preservation of property then only embargoed, till his Majesty's 
 pleasure should be further known ; if the embargo had gone off, the 
 Dane would have been entitled fo receive the freight. Indeed, the 
 Portuguese claimant will be bound to pay him now, unless he is 
 exonerated by the sequestration of the English government. The 
 Court of Admiralty cannot extinguish the debt by any other means, 
 than by assigning it to the crown as property seized. 
 
 Judgment. 
 Sir William Scott. In objection to this demand for freight on 
 the part of the crown, it is said that it will operate with a 
 considerable degree of hardship "^upon the owners of the [ * 76 ] 
 
77 CASES DETERMINED IN THE 
 
 The Prosper and Holstein. Edw. 
 
 cargoes in these cases, if the demand is acceded to ; on the other 
 side it has been pressed, with equal earnestness, upon the conside- 
 ration of the court, that unless the strict rule is applied, there will 
 not be funds sufficient, in the hands of the crown, to remunerate the 
 captors. These are considerations to which I shall pay very little 
 attention, as they can have no influence in the decision of the ques- 
 tion. The court must proceed upon general rules, and it will some- 
 times happen that general rules press hard in individual cases ; on the 
 other hand, I am not to look to a possible deficiency of the fund for 
 answering other purposes. It is my business to apply the law to the 
 case itself, and I have only to consider upon what principle of adju- 
 dication this question is to be determined. These Danish ships, 
 which had not been brought in upon their own account, were restored 
 by consent, reserving the question of freight and expenses ; and the 
 cargoes which stood over for adjudication, have since been given up 
 to the I^ortuguese claimants, in consequ&nce of the favorable change 
 which has taken place irL the situation of that country. It is clear 
 that these cargoes were not originally destined to this country, and, 
 by the general law-merchant, freight would not be due, because the 
 contract of affreightment has not been completed. But in this court 
 it is held, that where neutral and innocent masters, of vessels are 
 brought into the ports of this country on account of their cargoes, 
 and obliged to unliver them, they shall have their freight upon the 
 principle that the non-execution of the contract, arising from the inca- 
 pacity of the cargo to proceed, ought not to operate to the disadvan- 
 tage of the ship. This rule was introduced for the beneiit 
 [ * 77 ] of the ship-owners, and to * prevent the rights of war from 
 pressing with too much severity upon neutral navigation. 
 Now it happens that, in consequence of Danish hostilities, these 
 freights have become enemy's property ; and the question is whether 
 the right passes, over to the crown. By the order in council, which 
 directs that freight due, or payable to Danish subjects, shall be paid 
 to the crown, it is decided that it does ; but a distinction has been 
 taken in this case, on the ground that there having been no declara- 
 tory sentence, there is no vested interest. It is contejnded that the 
 freight is a chose in action, and can only be recovered by a suit at 
 law : and that here the Danish owner having become an enemy, he 
 cannot pray a sentence, and the right remains extrinsic. Now it is 
 certainly true that the captor, which is the crown, in this case, does 
 not acquire extrinsic right, more than it would become subject to any 
 extrinsic burdens, which might attach to the ship ; and, therefore, if 
 this is an extrinsic right, it will dispose of the question. The first 
 question then is, whether it is to be so considered or not ; now, un- 
 
HIGH COUET OF ADMIRALTY. 78 
 
 The Prosper and Holstein. Edw. 
 
 doubtedly, when a ship is brought in, and arrives at what is legaljy 
 considered as her port of delivery, the right to freight is not extrinsic. 
 The master is not bound to establish his right by a proceeding at 
 law ; he has possession of the cargo, and has a right to retain that 
 possession till his demand is satisfied ; and this forms a material dis- 
 tinction from those other rights, in which the intervention of a court 
 of justice is required. It is just the same with respect to the obliga- 
 tions of the vessel ; if one of these ships had been in a private dock, 
 for the purpose of being repaired, the crown could only have made 
 the seizure, subject to the detainer for repairs. But it is said 
 that here there could be no * corporal apprehension, because [ * 78 ] 
 these cargoes had been separated from the ships ; but in 
 what manner had they been separated ? Why, by substituting bail 
 for the bodily possession of the cargo. This is done merely for the 
 convenience of the parties, and is by no means intended to place the 
 owner of the ship, who has a lien upon the cargo, in a worse situa- 
 tion ; the court merely substitutes one security for another ; it changes 
 the nature of his security, but does not lessen it. Suppose the crown 
 had seized the ship, with the cargo on board, there can be no doubt 
 that it would have been entitled to the freight, for the Danish master 
 was entitled, and might have retained the cargo till he was paid ; and 
 unless it can be said that this practice of taking bail alters the nature 
 of his right, so as to deprive him of his legal remedy, he must be con- 
 sidered, in point of law, though not in point of fact, as still in pos- • 
 session of the cargo. Taking it, therefore, that the Danish master, 
 when here, was entitled to the freight, the crown, which is substituted 
 for him, has the same right ; and I (Jo not see that the mere absence 
 of a declaratory sentence imposes any additional hardship upon the 
 owner of the cargo. It has been said, that he might have shown 
 cause against the Danish master, so he may now ; and with more 
 advantage against the crown, than against the Danish master, who 
 was in possession of more facts to rheet any objections which might 
 have been made to the payment of the freight. And although I wish 
 to press with as light a hand 'as possible on the owners of these Por- 
 tuguese cargoes, yet, considering that there was no necessity for a de- 
 claratory sentence, and that this was a vested interest, of which the 
 Danish master was in possession, and of which he was not deprived 
 by the mere substitution of the bail, I am of opinion that the crown is 
 entitled to the freight. 
 
 EDW. 
 
79 CASES DETERMINED IN THE 
 
 The Lord Nelson. Edw. 
 
 [*79] * INSTANCE COURT. 
 
 The Lord Nelson. 
 
 April 18, 1809. 
 
 Capture by the French, and subsequent voluntary abandonment. Salvage not limited by 
 
 the Prize Act. 
 
 This English ship had been captured by a French privateer, and 
 was afterwards deserted by the enemy, under an impression that it 
 was impossible to carry her into port. The ship was found without 
 any person on board, and brought in by The Cherokee sloop of war ; 
 and the question, therefore, was, whether this should be considered 
 merely as a case of salvage on recapture or as a derelict ? 
 
 On the part of the salvors, Swabey contended — That this was not 
 a recapture within the meaning of the Prize Act, as the ship had not 
 been abandoned from the terror of his Majesty's arms. That the 
 master and crew were taken out, and the vessel deserted by the enemy, 
 on account of her disabled condition, as appeared by an affidavit 
 made by the cornmander of the French privateer, who had been sub- 
 sequently captured. That it was a case of great merit on the part of 
 the salvors, and that the court would give salvage as of a vessel de- 
 serted at sea and in danger of being lost. 
 
 4 
 
 Judgment. 
 Sir William Scott. This is a question of salvage for the reco- 
 very of this vessel, which was a transport in his Majesty's service, and 
 valued at about 4,600Z. The circumstances of the recovery are these : 
 the ship had been pursued for some time by a French lugger, and the 
 
 master, finding it impossible to escape, with the intention 
 .[ * 80 ] that the enemy might not make prize of her, cut away *his 
 
 masts, which were in the act of falling when the lugger came 
 up. On this account the enemy avoided boarding her, but ordered 
 the master to strike his colors, and lower his boat into the water ; they 
 then took out the master and crew, and leaving this vessel to her fate, 
 proceeded in chase of another which was in sight. Here, then, was a 
 total abandonment of their inchoate rights as captors, not under the 
 terror of any British force, but solely, as it appears, in consequence of 
 this act of the master. Suppose, therefore, that after this voluntary 
 abandonment, the ship had been met with by some French cruiser, 
 
HIGH COURT OP ADMIRALTY. 81 
 
 The King v. Wayth. Edw. 
 
 and that by means of jury-masts they had succeeded in carrying her 
 irfto a French port; can there be any doubt that she would have 
 been prize to the second captor ? There was a total extinction of the 
 rights of the first captor, who had quitted the prize upon finding he 
 could not carry her into port, and having, at the same time, another 
 object in view better worth his attention. There was no application of 
 force or terror ; it was a voluntary quitting, and the ship was, therefore, 
 found in the situation of a derelict, abandoned by all who could pre- 
 tend to any right in her. There appears, moreover, to have been 
 great merit in the exertions of the persons by whom she was reco- 
 vered ; it was a work of great labor, and apparently of much skill, 
 not unaccompanied with danger, and, as I am not restricted by the 
 act of parliament, in this case, I shall allow one moiety as the proper 
 salvage. 
 
 The King v. Wayth. [ * 81 ] 
 
 May 2, 1809. 
 Disobedience of signals while under convoy. Proceeding under the statute. 
 
 This was a proceeding on the part of the admiralty, against Fran- 
 cis Wayth, master of the merchant ship Cynthia, for disobedience of 
 signals, and the lawful orders of the commander of the convoy, in 
 breach of the act of parliament,^ which provides, that "if the captain 
 of any merchant ship under convoy shall wilfully disobey signals or 
 instructions, or any other lawful commands of the commander of the 
 convoy, without notice given and leave obtained for that purpose, he 
 shall be liable to be articled against in the High Court of Admiralty, 
 at the suit of the king in his office of admiralty, for disobedience to 
 the officer of the convoy, and, upon conviction thereof, shall be fined 
 at the discretion of the said court, in any sum not exceeding five hun- 
 dred pounds, and shall suffer such imprisonment not exceeding one 
 year, as the court shall adjudge." 
 
 Judgment. 
 Sir William Scott. There is no branch of the service more un- 
 pleasant to naval officers than that of convoying a fleet of merchant 
 vessels ; it is a duty which is painful in its own nature, and extremely 
 
 1 45 Geo. in. c. 72, s. 24. 
 
82 CASES DETERMINED IN THE 
 
 The King v. Wayth. Edw. 
 
 difficult in its execution, even where there is no misconduct on the 
 part of those who are to act under their orders. It must frequently 
 happen, that among the different vessels confided to their care, some 
 are navigated by unskilful masters, or they sail badly from some fault 
 in their own structure, and are not capable of paying prompt obedi- 
 ence to the signals that are made ; and, therefore, officers bringing 
 with them the best disposition to the service, usually find that they 
 have difficulties enough to struggle with. But if these diffi- 
 [ * 82 ] culties are to be aggravated by the disobedience and * con- 
 tumacy of the persons they are to protect, it makes it a duty 
 which hardly any man can take upon himself without a certainty of 
 failure, and carmot terminate otherwise than in a way fatal to the 
 interests of commerce. This has been so frequently a subject of com- 
 plaint, that at length it has been found necessary to arm th6 court 
 with very extensive powers for the prevention of the evil, and as this 
 is the first prosecution under the statute, it imposes an especial obli- 
 gation on the court to mark it in such a manner as shall give effect 
 to the intentions of the legislature. It is a case not merely of dis- 
 obedience, but of active opposition to the orders which were given, 
 aggravated by the most gross and insolent language. In the articles 
 it is charged, "that The Cynthia sailed, with other vessels, on the 26th 
 , September, 1805, from Newfoundland for Portugal, under convey of 
 The Harpy sloop of war, and The Pilchard schooner; that on the 
 8th of October following, The Harpy being ahead, leading the con- 
 voy, and The Pilchard close upon her weather quarter, at the distance 
 of about one hundred fathoms only, so as to render it dangerous for 
 any other vessel to pass between them, it then blowing fresh ; Lieu- 
 tenant Crew, who commanded The Pilchard, seeing The Cynthia 
 coming up astern, in order to pass between The Harpy and that ves- 
 sel, hailed the said Francis "Wayth, the master of The Cynthia, and 
 ordered him to go to leeward of The Harpy, and not to pass between 
 them ; that the said Francis Wayth made no answer, but waived his 
 hand as a direction to Lieutenant Crew to get The Pilchard out of 
 the way of The Cynthia ; that Lieutenant Crew, finding that no 
 attention was paid to his order, directed a musket to be brought on 
 deck for the purpose of enforcing obedience ; on seeing whereof, the 
 said Francis Wayth cried out, I have muskets as well as 
 [ * 83 ] you, * and immediately sent below for one, which he loaded, 
 and soon after he had passed between the convoying ships, 
 he discharged it." It isi^jfurther stated, that "on the afternoon of the 
 same day, in consequence of a signal made by Captain Heywood, of 
 The Harpy, Lieutenant Crew hailed The Cynthia, and desired the 
 master to shorten sail and close, when he again , replied in a very 
 
HIGH COURT OF ADMIEALTY. 84 
 
 The King v. Fergusson. Edw. 
 
 insulting manner, and made more sail than before, in contempt of 
 the orders communicated to him." These are the facts charged, and 
 they are fully established by the evidence ; in answer to them, the 
 party has attempted to defend himself by pleading facts which are 
 not supported, and which he must know could afford no justification 
 of his conduct. He has given in an allegation, in which he states, 
 that he could not comply with Lieutenant Crew's orders to go to lee- 
 ward of The Harpy, without danger of running foul of that vessel ; 
 but there must be an end of all discipline, if masters of vessels under 
 convoy, are to take upon themselves the office of determining whether 
 the orders that are given them are to be obeyed or not, when the very 
 nature of the service is such, that it can only be performed by prompt 
 and willing obedience. Here, on the contrary, was a studied opposi- 
 tion on the part of the master of this vessel, to the orders of the offi- 
 cer of the convoy, and how is it extenuated ? Why, after a lapse of 
 four years, at this late period, at this eleventh hour of the day, he 
 comes forward, and expresses himself in terms of humiliation. But 
 during all this time he has been standing out, although he had nothing 
 to do but throw himself on the mercy of the admiralty. It is proved, 
 however, that upon a former occasion, he conducted himself in a very 
 exemplary manner ; this weighs something, and as the prosecution 
 has been pending a long time, and it is the first under the 
 * statute, I shall content myself with condemning him in the [ * 84 ] 
 full costs of suit, and in the penal sum of 501. to be paid to 
 his Majesty in his office of admiralty. 
 
 King v. Fergusson. 
 
 May 2, 1809. 
 A person appearing for the captain, on granting letters of marque makes himself responsible. 
 
 In this case, the judge decreed a monition against Alexander Fer- 
 gusson, as commander of the private ship of war Lucy, Gregory 
 Geering, who appeared for him, Henry Hobbs and William Ransom, 
 his sureties, on granting him letters of marque, citing them to appear 
 and see proceedings had against them, and to show cause why the 
 bail recognizance shouM not be decreed to be forfeited for a breach of 
 his Majesty's instructions. -The act of parliament requires, that upon 
 granting letters of marque, the captain and two sureties shall appear 
 6* 
 
85 CASES DETERMINED IN THE 
 
 The King v. Fergusson. Edw. 
 
 and give security ; but oh considerations of convenience, where the 
 captain is absent, the practice of the court permits some other person 
 to appear for him. 
 
 ^wabey, on the part of Mr. Geering, .contended — That only the 
 two sureties were bound, and that when Mr. Geering appeared on 
 behalf of the captain, he did not bind himself personally, and that, 
 therefore, he ought to be relieved. 
 
 On the other side, it was urged by the King's Advocate — That the 
 bond must be interpreted by its own tenor, and not by extrinsic evi- 
 dence. That Mr. Geering had personally bound himself by the terms 
 of the bond, and the court would not exonerate him, and lay the bur- 
 den upon the other two. 
 
 [ * 85 ] * Judgment. 
 
 Sir William Scott. The question in this case is, whether 
 the security given, is to bind the captain, or the party who appears on 
 his behalf. Now it is clear that Mr. Geering could not, by any act of 
 his bind the captain, from whom he had no authority ; and there is no 
 intimation in the bond itself that he intended to do so. In the act of 
 parliament it is specified, that the master and two sureties shall give 
 security ; if, therefore, the substitute cannot bind him, and does not 
 bind himself, there is a want of one of the three sureties required,' and 
 the provisions of the act are not complied with. In the description, 
 it is true, Mr. Geering appears on behalf of the captain, but what is 
 the obligatory part of the bond ? " They do all severally consent that 
 execution shall issue forth," against whom ? not against the captain, 
 but "against themselves, their heirs, executors, arid administrators." 
 It is for the parties to consider well beforehand how far they are will- 
 ing to incur that risk, and if any inconvenience arise from the practice, 
 it may be altered ; but I cannot venture to say, that the undertaking 
 by which Mr. Geering submitted to bind himself, does not bind him. 
 ilecognizance forfeited. 
 
HIGH COURT OF ADMIEALTY. 86 
 
 The Baltic Merchant. Edw.- 
 
 *INSTANCE COURT. [ * 86 ] 
 
 The Baltic Merchant, Smith, master. 
 
 May 10, 1810. 
 
 West India voyage not terminated till the arrival of the ship in the West India docks. 
 Wages forfeited for desertion. 
 
 This was a proceeding on the part of Christopher Wheldon, to reco- 
 ver a sum of money due to him for wages earned on a voyage from 
 the port of London to the West Indies, and back. The demand was 
 objected to on the ground that he had quitted the ship before the voy- 
 • aige was completed. 
 
 In support of the demand, the Kingh Advocate. This is the ordi- 
 nary case of a mariner quitting a ship after her arrival in port, with- 
 out a regular discharge in writing. The ship is a West India ship, 
 and had arrived off the Orchard House, within half a mile of the 
 West India Docks, and there Wheldon went on shore. If any penalty 
 be incurred, it is only a forfeiture of one month's pay to Greenwich 
 Hospital, by the 2 Geo. II. c. 36, s. 6. It was so decided in this court 
 in the case of The Hibberts, (November, 1807,) and also in the Court 
 of C. B., in the case of Frontine v. Frost, (3 Bos. & Pul. 302.) The 
 mariner's contract is irregular, because it has not been signed by the 
 master, and as no tender has been made on the part of the owners, 
 they are liable to costs. 
 
 For the owners, Dau^ny. This is clearly a case of desertion dur- 
 • ing the voyage, whereby a forfeiture of the whole wages has been 
 incurred, as well by the general maritime law, as by the statutes 
 2 Geo. II. c. 36, s. 3, and 37 Geo. III. c. 73. A ship has not 
 completed * her voyage until she is moored for the purpose of [ * 87 ] 
 discharging her cargo. It is not material how small a part of 
 the voyage remains to be performed ; no distinction in that respect 
 can be taken. It was so held in the case of The Pearl, Denton, 
 (5 Adm. Rep. 224,) which was a case of peculiar hardship on mari- 
 ners who quitted tl\e ship ; but the court could not relax the rule of 
 law. This ship is engaged in the West India trade, and is bound 
 by the statute (39 Geo. III. c, 69, s. 87) to discharge her cargo in the 
 West Indian Docks. This, therefore, must be considered the termi- 
 nation of the voyage, and the port of destination, for the voyage con- 
 
CASES DETERMINED IN THE 
 
 The Baltic Merchant. Edw. 
 
 tinues till the ship has been safely moored in the docks. The mari- 
 ner's contract, which describes the voyage to be " back again to the 
 West India Docks is decisive of the question ; " with respect to its 
 not being signed by the master, that is not required by 37 Geo. III. 
 c. 73, which regulates the West India trad'e, neither is it customary 
 for him to do so. The act of Geo. II. had two objects in view. By 
 the third section a forfeiture of the whole wages is incurred in case 
 of desertion before the completion of the voyage, and by the sixth 
 section the master is authorized to deduct one month's pay if a ma- 
 riner quits his ship after it is moored, but before the cargo is unladen, 
 and without a discharge in writing. The case of Frontine and Frost 
 ■vyas decided on other grounds. The defendant did not prove a de- 
 sertion without leave, which the court said he was bound to do. The 
 case of The Hibberts was totally different from the present one. The 
 crew were hired on a voyage from Halifax to London; the ship 
 
 arrived in the river, and was safely moored above the West 
 [ * 88 ] India * Docks, when the mariners left it. Four or five days 
 
 afterwards the officer of the customs interfered, and obliged 
 the master to carry his ship to the West India Docks, because he had 
 some West India produce on boa:rd. Under these circumstances it 
 was said by the court not to be a desertion during the voyage, but as 
 the mariners had quitted the ship without a discharge in writing, it 
 was held that they had incurred the forfeiture in that case provided, 
 of one month's pay. But in this case there was an actual desertion 
 during the voyage, and consequently a forfeiture of the whole wages 
 has been incurred. 
 
 Judgment. 
 Sir W. Scott. This is a suit for mariner's wages, instituted by a 
 person who was hired on board this vessel in,;the capacity of carpen- 
 ter. In a summary petition which has been given in on his part, he 
 states " that the ship being in the port of London, and designed on 
 a voyage from thence to the island of St. Vincent, in the West 
 Indies, and back again to the port of London, where her voyage was 
 to end and be complete, he was engaged by the master to serve on 
 board the said ship as carpenter, for and during the aforesaid voyage, 
 and until her return to the port of London." He then states " that 
 he accordingly sailed to St. Vincents, and returned with the vessel to 
 the port of London, where she was safely moored. on the 19th August, 
 1808; and that the voyage was thereby fully completed and ended,, 
 and that on the same day he was discharged from the service of the 
 said ship." He asserts, therefore, these two facts, that the 
 [ * 89 ] ship was safely moored, and that he was discharged * from 
 
HIGH COURT OF ADMIRALTY. 90 
 
 The Baltic Merchant. Edw. 
 
 her service; and in proof of these assertions, two of the mariners 
 have been examined, one of whom, Peterson, the coolc, merely 
 states, " that the ship arrived in the port of London, and was safely 
 moored, whereby the voyage was completed ; " the other witness, 
 Henry, goes somewhat further ; his account is, " that on her return to 
 the port of London, the said ship was safely moored alongside ano- 
 ther ship, and her sails unbent, and that the said Christopher Whel- 
 don left her, and went ashore, and he never afterwards saw him on 
 board the said ship." There the case is left ; they do not attempt to 
 aver that Wheldon had received any discharge, but it turns out on 
 the evidence of two very unexceptionable witnesses, the mate, and 
 Bowie, the river pilot, that this mooring of the vessel, as it is called, 
 was nothing more than lashing her alongside another ship off the 
 Orchard House below Blackwall. Now undoubtedly that is not a 
 mooring in the proper sense of the word, which implies the fixing a 
 vessel by chains or anchors in a permanent manner ; it was merely 
 a temporary suspension of the voyage, by attaching her to an object 
 that was also movable, and depending, not upon the will of these 
 parties, or of anybody with whom they are connected, but upon the 
 will of others, the persons in command of that vessel. In the case of 
 Frost and Frontine ^ which has been alluded to, and which alone has 
 occasioned a suspension of my judgment, it is laid down that it is 
 not necessary for a mariner to prove his own discharge; that is 
 thrown upon the other party, and, therefore, the defect of proof upon 
 that point would not prejudice the present claimant. But here it is 
 directly proved by the mate, not only that he was not dis- 
 charged, * but that leave to go on shore was positively re- [ * 90 ] 
 fused him. The mate says, " that in the afternoon of the 
 said 19th of August, after he was left in command of the said ship 
 by the said Joseph Smith, the master, a woman, whom he under- 
 stood to be the wife of the said Christopher Whelden, came to, and 
 addressed herself to the deponent on deck, though he cannot say 
 whether in the hearing of the said Christopher Wheldon, or not, he 
 he being not far off, and then asked for deponent's leave for the said 
 Christopher Wheldon to go ashore. And deponent then in reply 
 thereto, told her as was the fact, on account of the said ship not lying 
 in a safe place, ti^t he could not give leave to any person, meaning 
 any of the crew W the said ship, to go ashore." And he then states, 
 " that having left the deck of the said ship about four o'clock in the 
 afternoon of the said 19th day of August, to get some tea below, he 
 
 1 [3 Bos. & Pul. 302.] 
 
91 . CASES DETERMINED IN THE , 
 
 The Baltic Merchant. Edw. 
 
 found on his return on deck, that the said Christopher Wheldon had, 
 without giving the least notice in his presence to the master of the 
 said ship, or to any other person, and in particular without giving 
 notice to the deponent, who was left in the command of the said 
 ship, left and deserted the said ship. And he did not see him again 
 till two days after the ship had been carried into the West India 
 Docks, where, by her being moored within the said docks, the voyage 
 was complete and ended." The pilot also says, " that in consequence 
 of the desertion of this man and others, the ship was exposed to consi- 
 derable danger in the situation in which she wals, and particularly 
 from her being without a carpenter ; " so that here is a desertion of 
 
 the ship as complete in point of fact, and as alarming in its 
 [ * 91 } consequences * as can well be imagined. It appears that 
 
 the owners were obliged to get other assistance to work the 
 vessel up to the West India Docks, at which place alone she could 
 deliver her cargo, and which must be considered as the proper ter- 
 mination of the voyage. The question then is as to the penalty ; if 
 the word penalty is that which properly belongs to this act of mis- 
 conduct. That such a demand as this, for entire wages under such 
 conduct on the part of those who claim them, could have been at any 
 time supported, is inconceivable ; if owners are damnified by the mis- 
 conduct of their mariners, they are entitled upon every principle of' 
 reason and justice to a set-off against the demand of wages, on account 
 of the hazards to which their property has been exposed by the non- 
 performance of the contract. By interpretation of law, the voyage is 
 not completed by the mere fact of arrival ; the act of mooring is an 
 act to be done by the crew, and their. duty extends to the time of the 
 unlivery of the cargo. There is no period at which the cargo is more 
 exposed to hazard than when it is in the act of being transferred from 
 the ship to the shore, and, therefore, the law, not only the old law, 
 but particularly the statute by which the West India trade has been 
 in later times regulated, has enjoined in the strictest manner that the 
 mariners shall stay by the vessel until the cargo be actually delivered. 
 I take this to have been always a part of the duty of mariners ; their 
 contract is legally understood to go this length, and there never can have 
 been a time when the owner was not entitled to some consideration 
 
 against the mariners, on account of the Mn-completion of 
 [ * 92 ] the contract. This is a consideration noflfn modum "pana, 
 
 but it is a civil compensation for injury received, existing in 
 all reason and justice antecedently to any statute upon the subject 
 In the case of freight, if a master does not execute any part of the 
 contract, it is in strict principle a forfeiture of the whole freight, and 
 so it would be in these cases of wages, though the law has not 
 
HIGH COURT OF ADMIEALTY. 93 
 
 The Baltic Merchant. Edw. 
 
 usually been carried to its full extent ; but from that indulgence with 
 which it has always contemplate* the interests, and even the errors 
 and failures of this class of men, it has wrought only the forfeiture of 
 a part of the wages by way of compensation to the owner for the 
 trouble and risk of the exposure of his property, and for his additional 
 expense in procuring other assistance to effect that which ought to 
 have been effected by such deserters. Then came the statute of mer- 
 chant seamen, which contained a clause, giving one month's wages 
 to Greenwich Hospital in cases of desertion, and in the argument 
 which has been founded, I presume, upon the case alluded to, it is 
 ur^d as if it was understood to transfer part of the forfeited wages 
 to that institution. But surely it never could be the intention of the 
 legislature to make that a matter of charity to Greenwich Hospital, 
 which was already a matter of justice due to the injured owner. It 
 would be a strange remedy to hold out to the merchant owner, who 
 was defrauded of the service of his mariners by their desertion, and 
 who had his equitable right of deducting from their wages on that 
 account, to inform him that now he should no longer have his right 
 of set'off against these delinquents, but that the wages should go as 
 a forfeiture to Greenwich Hospital. That would be to double his 
 injury. The case of Frontine and Frost ^ produced a great, 
 deal of * deliberation among the judges of the court in [ * 93 ] 
 which it was considered ; and it was there laid down pretty 
 strongly in the argument of counsel, that the delinquent does not for- 
 feit the whole of his wages, which is true. But it was further argued 
 that the master must have debited himself to Greenwich Hospital in 
 order to entitle himself to make the deduction, on the ground that the 
 deduction is for the benefit of that charity, and not for the compen- 
 sation of the owner. 
 
 Now, I take the interpretation of the case to be this, that it will 
 not entitle the owner to set off the forfeiture to Greenwich Hospital 
 as a forfeiture under the statute which he had done in his pleadings, 
 unless he shall have complied with the requisitions of the statute, not 
 that he shall loose his own right of deducting a compensation due 
 to himself personally on account of the imperfect execution of the con- 
 tract. I have had opportunities of conversing with very learned per- 
 sons who were interested in that judgment, and from whom I under- 
 stand that the authority of their opinions concurs in sustaining the 
 proposition that the owner is not debarred by the provisions of the 
 statute, from those rights to which he was entitled under the old law. 
 
 [3 Bos. & Pul. 302.] , 
 
94 CASES DETERMINED IN THE 
 
 The Twee Gebroeders. Edw. 
 
 The legislature never could have intended to deprive the owner of his 
 remedy, when it superadded thi^ forfeiture in favor of the hospital, 
 which was to be obtained in the modes it has prescribed. This case 
 does not, I think, in any manner interfere with the principle which I 
 have laid down, that the owner is at liberty to set off the compensa- 
 tion to which he is entitled against a demand for wages independ- 
 . ently of that statute. But the present case goes a great 
 [ * 94 ] deal further ; it is true the vessel had arrived in the * river, 
 but the voyage was not finished, it was still to be prose- 
 cuted. The acts which have passed having made the West Mia 
 Docks the only place where these cargoes can be discharged, the 
 voyage can only terminate there ; the vessel has not, till then, arrived 
 at her final moorings. Her port' is not the port of London generally, 
 but of that particular portion of it which is expressly and exclusively 
 appropriated for the reception of West India ships. It is, therefore, 
 a desertic^i during the voyage, which, by the old law, as well as by 
 the statute, works a forfeiture of the whole wages, and it is a case of 
 a very flagrant nature. The mate says, that being safely moored in 
 the West India Docks her voyage was complete and ended, and no 
 doubt that is the right interpretation. The mariner's contract has 
 been exhibited, which is drawn up in a very slovenly manner, and it 
 has been suggested that the words West India Docks may have been 
 put in afterwards ; be that as it may, the port of London must, in 
 this case, be taken to mean the West India Docks, because it is there 
 alone that the cargo could be delivered under the statutable regula- 
 tions. Wages forfeited. 
 
 [ * 95 ] * The Twee Gebroeders, Jans. 
 
 i 
 
 May 19, 1809. 
 License vitiated by changing the port of shipments. 
 
 The question in this case was, whether this Dutch ship, and cargo, 
 were protected by a British license found on board, in which the 
 parties had themselves substituted St. Martin's for the port of Bor- 
 deaux. 
 
 Judgment. 
 Sir W. Scott. This ship was taken on" a voyage from St. 
 
HIGH COURT OF ADMIRALTY. 96 
 
 The Twee Gebroeders. Edw. 
 
 Martin's to Dover, with a cargo of salt, under a British license on 
 board, which has evidently been altered. It is admitted that the li- 
 cense was obtained for the avowed purpose of bringing away a cargo 
 from Bordeaux to any port of this country ; but the parties having, for 
 some reason or other, changed their intention, it had been altered so 
 as to accommodate it to the present voyage, and this without any 
 communication with his Majesty's government. It has been said 
 that specific licenses were, at the time, obtained for the purpose of 
 carrying on this trade from St. Martin's, and that the deviation can- 
 not, therefore, be considered as contrary to the policy of government ; 
 but I cannot consider that as a sufficient excuse ; such an alteration 
 can only be made upon a particular representation, leaving govern- 
 ment to judge of the terms on which it may be proper to comply with 
 the request. What is the ground of the policy of granting licenses 
 at all, but /that government may see what communication 
 * is going on with the enemy ? And, therefore, I do not [ * 96 ] 
 think that a case, in which the real port is not disclosed, 
 does come within that latitude of interpretation which the necessities 
 of commeice might tolerate. If there was no difficulty in obtaining 
 licenses for this trade in salt, why was not a disclosure made by the 
 parties of their real intentions ? It is said, that this salt was to be 
 carried on to Holland ; and certainly primd facie the importation of 
 French salt into that country is not a commerce which is entitled to 
 any very favorable consideration. There may, at the same time, be 
 very sufficient commercial reasons, unknown to this court, for such a 
 relaxation ; but it must be done under the immediate eye of the 
 -government. Parties cannot be permitted to take licenses for one 
 purpose, and apply them to another ; in such a case, it would be 
 going beyond the powers of this court to extend. its protection. 
 Ship and cargo condemned. 
 
 EDW. 
 
97 CASES DETERMINED IN THE 
 
 The Victoria, otherwise Alfred the Great. Bdw. 
 
 [*97] * INSTANCE COURT. 
 
 The Victoria, otherwise Alfred the Great.^ 
 May 19, 1809. 
 
 • 
 
 British ship captured by the Trench, and carried to Spain and condemned. Afterwards 
 seized by the Junta as Trench property, and sold — Title of purchaser good againsf 
 former British owners. 
 
 This was a cause of possession at the suit of William Tindall, the 
 former British owner, against Mr. Tavanera, the asserted owner in 
 possession. The ship was formerly British, and had been captured 
 by a French privateer, towards the latter end of the year 1807, and 
 carried to Pontevedra, in Spain, soon after which she was condemned 
 to the captor by a sentence of the Prize Tribunal, at Paris. At the 
 commencement of hostilities between the Spaniards and French, the 
 Junta of the province of Gallicia passed an act, dated th# 7th Sep- 
 tember, 1808, for the sequestration of all French property ; and on the 
 10th of September following appointed Don Joseph Calderon, their 
 commissioner for the sale thereof. This ship being considered as 
 French property, was brought from Pontevedra to Corunna, and 
 there sold by the commissioner of Mr. Tavanera. Upon the approach 
 of the French array to Corunna, Mr. Tavanera, who was a member 
 of the Junta, caused the vessel to be laden with as much of his pro- 
 perty and effects, as he could collect, and embarked with his family 
 for England, where he soon afterwards arrived. The only papers on 
 board were a copy of the act for the sequestration of French property, 
 a paper relating to the appraisement of the ship, and a certificate of 
 the English consul, stating that The Victoria was obliged by the 
 situation of affairs, to quit the port without being able to procure the 
 proper documents. The absence of a bill of sale was 
 [ * 98 ] accounted for by Mr. Tavanera, * who stated that it was in- 
 tended that a formal document of the sale of ship should be 
 made out to him, as soon as the confusion subsided ; but that the 
 subsequent occupation of the place by the French prevented this 
 from being done. 
 
 On the part of the former owner, it was contended, that there was 
 
 [Affirmed on appeal, July 28, 1810.] 
 
HIGH COURT OF ADMIRALTY. 99 
 
 The Victoria, otherwise Alfred the Great. Edw. 
 
 no proof of the condemnation by the Prize Tribunal at Paris ; that 
 Mr. Tavanera, who had an immediate interest in establishing that 
 fact, could only speak to his belief. That the sentence should be 
 produced, in order to enable the court to judge of the legality of the 
 condemnation. That the production of that document was also neces- 
 sary in order to ascertain the date, because, if it should turn out that 
 it took place after the dissolution of amity between France and Spain, 
 they were no longer allies in the war, and in that case the condemna- 
 tion by the French tribunal, at Paris, would not be legal. That, 
 supposing the condemnation to be good, still it should be recollected 
 that when the Junta of Gallicia laid their hands on this ship, they 
 were acting as the allies of this country. That it was in the nature 
 of a recapture, and that Mr. Calderon had gone beyond his duty in 
 proceeding to dispose of the vessel. That it could not be considered 
 as the act of the Junta, by whom nothing had been done or could 
 regularly be done to divest the French proprietor*, if there had been 
 such a condemnation of the property at Paris as really to give him 
 that character. 
 
 For Mr. Tavanera, it was contended — That the former owner was 
 completely divested by th^ sentence of the Prize Court, at 
 Paris ; that although that sentence * could not be produced,"" [ * 99 ] 
 there was an affidavit by Huth, a clerk in the employ of the 
 French captor's agent in Spain, who spoke to the fact, and to his 
 having been in possession of the sentence of condemnation ; that 
 the order directing the sequestration of French property, and the 
 authority given to Calderon to sell, was a sufficient act on the part 
 of the Junta to convert the property, as, by the law of Spain, a sen- 
 tence of condemnation was not necessary for that purpose. 
 • 
 
 Judgment. 
 Sir William Scott. This is a question arising on the claim of 
 a former owner of this ship, which was originally British, but had 
 been captured by a French privateer, in 1807, and carried to Spain. 
 Under the circumstances in which the ship quitted Corunna, the port 
 from which she sailed to come to this country, it is not surprising 
 that there should be a great deal of obscurity respecting her former 
 history. The usual documents and ship papers were not on board ; 
 and there is a certificate of the English vice-consul, at Corunna, stat- 
 ing, that owing to the situation of the place at the time she sailed, it 
 was impossible to procure them. The account given by Mr. Tava- 
 nera, the present owner, is this, " that in consequence of intelligence 
 being brought that the British troops were retreating, he was appre- 
 
100 CASES DETERMINED IN THE 
 
 The Victoria, otherwise Alfred the Great. Edw. 
 
 hensive that the French would take posse.ssion of Corunna, and he 
 therefore purchased this ship of the Junta of Gallicia, with a view of 
 quitting the place ; that, accordingly, on the 17th of January, when 
 the Erfglish troops embarked, he went on board this vessel with his 
 
 family, and in a! few days arrived at Weymouth." In another 
 [ * 100 ] part of * his evideiice, he states, " that the ship was captured 
 
 from the English by a French privateer, called The General 
 Martin, and was carried into Pontavedra, in the latter end of the year 
 1807) as he believes, and that she was condemned by the tribunal at 
 Paris, as being English property." I observe, too, that the sails, and 
 other parts of her equipment, had been warehoused, from which it 
 may fairly be inferred, that the ship had lain for some' time in the 
 Spanish port, and, therefore, it may reasonably be presumed that con- 
 demnation had taken place. Under such circumstances, the court 
 would have allowed the party the opportunity of making further 
 proof ; but there is a very satisfactory affidavit, by a person of the 
 name of Huth, who states, "that he was a clerk in the hduse of Ur- 
 bieta & Co., of Corunna, the agents of the French privateer General 
 Martin, by which this vessel was captured ; and that they took the 
 usual and necessary measures in regard to the care and management 
 of the said prize while the captors were proceeding to obtain con- 
 demnation thereof in the Prize Tribunal at Paris ; that the said ship 
 and cargo were accordingly condemned as lawful prize to the French 
 captors by sentence of the said tribunal, and the said sentence duly 
 legalized by the Spanish resident at the French court, was remitted 
 to Urbieta & Co." And he positively swears, that he has perused 
 the said sentence, which he had in his own possession, and that he 
 attended with the same at the office of the Tribunal of War, at 
 Corunna, for the purpose of expediting the sale both of ship and cargo ; 
 that in consequence thereof the said ship and cargo were put up for* 
 sale, but such sale was afterwards suspended, owing to some disputes 
 
 with the collector of the customs, and during that period the 
 [ * 101 ] revolution * in Spain took place." The condemnation of 
 
 this vessel, in the port of an ally, by the French tribunal, is 
 perfectly legal, and, by that sentence, the former British owner is 
 divested. He could have no interest in her subsequently, unless she 
 had been recaptured from the French by a British cruiser, or by an ally, 
 with whom we have treaties expressly stipulating for restitution on sal- 
 vage. Our law has laid it down, that British recaptures are to restore 
 to British owners on salvage ; and it is possible that some such stipu- 
 lation may be made with the present government of Spain, but until 
 that is done, the British owner can have no right to claim restitution 
 of the vessel from the person who is legally in possession of her. Our 
 
HIGH COURT OF ADMIRALTY. 102 
 
 Thorshaven and its Dependencies. Edw. 
 
 own local regulations are not applicable as rules of authority to the 
 case of recapture, even by allies in the war, wffo gjfoceed by different 
 rules, and it is by no means the disposition of this country to force 
 the. regulations of its own domestic policy upon other countries. Un- 
 less, therefore, it could be shown that the new treaty, which we have 
 not seen, does provide for such cases, and that it has a retrospective 
 effect, the British proprietor has no interest in the question ; he is out 
 of court. It appears that the ship was seized by the Junta of Galli- 
 cia, as French property, and was brought round to Corunna, where 
 it was sold to Mr. Tavanera, under their authority. It would be 
 absurd to say, that the Junta were not competent for this purpose, 
 when they were possessed of the supreme authority of the country, 
 embracing, of course, the admiralty, and every other jurisdiction which 
 can emanate from the sovereignty of the state. I think the instru- 
 ment by which they directed the sequestration and sale of this vessel, 
 is an act sufficiently formal as an admiralty process on 
 their part, ' even if, by the law of Spain, a formal sentence [ * 102 ] 
 of condemnation had been necessary to give validity to the 
 transfer. 
 
 Ship restored to Mr. Tavanera, the Spanish owner. 
 
 Thorshaven,^ and its Dependencies. 
 
 June 29, 1809. 
 
 Public property withheld under a capitulation and afterwards seized, is property of the 
 
 crown. 
 Operations of privateers on land limited by Prize Act. 
 
 In this case the king's proctor intervened for the crown, and prayed 
 to be heard on his petition against the condemnation of certain goods 
 and specie proceeded against as prize to the private ship of war Sala- 
 mine. It appeared that Captain Baugh, of his Majesty's ship Clio, 
 had attacked the castle of Thorshaven, in the island of Stromoe, on 
 the 16th of May, 1808, and obtained possession of the place under a 
 capitulation consisting of three articles, by which it was stipulated, 
 that the castle and batteries should be given up ; thatthe garrison should 
 
 i.[ Affirmed on appeal, January 26, 1811.] 
 
 17 * 
 
103 , CASES DETERMINED IN THE 
 
 Thorshaven and its Dependencies. Edw. 
 
 not serve against his Britannic Majesty during the term of one year; 
 that all private prqperfy should be respected, and that all government 
 property should be at the disposal of the captors. Part of the public 
 property was carried on board The Clio, and Captain Baugh sailed 
 soon afterwards, without leaving any of his own people upon the island, 
 but intrusted the charge of it, together with the custody of the remain- 
 der of the public prbperty, to the Danish municipal officers. About 
 a fortnight after this, Gilpin, the commander of The Salamine, landed 
 with a part of his crew, with the intention of storming the fort, but, 
 upon being informed of the capitulation, he reembarked, and put to 
 
 sea. Having, however, in the course of his cruise, obtained 
 [ * 103 ] intelligence that some merchandise and * moneys, belonging 
 
 to the King of Denmark, had not been delivered up under 
 the capitulation, he returned and took possession of the property in 
 question. 
 
 On behalf of the crown, the King's Advocate and Arnold con- 
 tended — That although there was reason to suppose, that the pro- 
 perty now proceeded against was private property, and so far it would 
 aggravate the wrong, if any had been done, yet, the main question 
 was, whether there had not been a previous capitulation, by which 
 all the property on the island had acquired a new character, or such 
 an appropriation as would protect it from seizure. That as there was 
 nothing to show that this was public property, except the affidavits 
 of the captors themselves, and the court had said that it would not 
 take that fact merely upon their testimony, the discussion of that day 
 must be limited to the articles of capitulation. That under those 
 articles there was a total surrender of all public property ; that there 
 was an entire extinction of all the former rights of property, which 
 vested in the King of Denmark, and a transfer of those jights to the 
 crown of Great Britain ; that by another part of the articles, the pri- 
 vate property of the inhabitants was to be protected, and upon the 
 surrender of the island. Captain Baugh had a right and a power to 
 grant them protection from the arms of the sovereign under whose 
 authority he acted, and in whose riame he acceded to the conditions 
 of the treaty. That when Captain Baugh went away, he did not by 
 any means give back the island, bat he felt that it was necessary that 
 some sort of government should be left there, and he intrusted that 
 duty to the Danish municipal officers. That they were not restored 
 to the exercise of that authority which they had before, but 
 [*104] a new authority was given them, derived from the * sove- 
 reign to whose arms they had sufrendered ; that from the 
 character acquired by this property, and by the island generally, it 
 was no longer open to an attack by his Majesty's arms. -^ 
 
HIGH COURT OF ADMIRALTY. 105 
 
 Thorshaven and its Dependencies. Edw. 
 
 For the privateer, Adams and Jenner referred to that part .of the act 
 on petition in which it was alleged, "that Captain Baugh, whilst 
 cruising otf the Faro Islands, received intelligence that some eneiny's 
 vessels were lying in Thorshaven, in the island of Stromoe ; that the 
 said island being a place of considerable strength as well as of advan- 
 tage to the enemy, he conceived it to be his duty to capture the said 
 island, if possible," and contended, that as Captain Baugh had acted 
 without any authority from his government, the capitulation did not 
 partake of the nature of a treaty, that it could be considered in no 
 other light than merely as a personal agreement between him and 
 the governor of the place, in which Captain Baugh stipulated for that 
 which it was alone in his power to grant, namely, a limitation of his 
 own rights as captor. That it was not intended to bind others, who 
 were no parties to the agreement ; that by this capitulation, govern- 
 ment property was to be at the disposal of the captor, and that they 
 had disposed of it by carrying away what they thought proper, by 
 destroying a part, and by leaving the remainder behind. That the 
 protection granted in the articles, went no further than the persons 
 and property of the garrison ; that the inhabitants were not included, 
 but were left in the condition of persons from whom the hostile cha- 
 racter was not taken off. That Captain Baugh had not left any 
 British force to keep possession of the island, and that the British 
 flag was hoisted only while The Clio was there. That it was only 
 material to ascertain whether this was public or private pro- 
 perty, * with a view to repel the insinuations which had been [ * 105 ] 
 thrown out against the commander of the privateer, who 
 had shown every disposition to respect the capitulation. That The 
 Clio did not intend to return, and could not preserve her rights by an 
 enemy's municipal officer; that the inhabitants still continued Danish 
 subjects, as there had been no transfer of the sovereignty, nor any 
 stipulation respecting them, and, consequently, that their property 
 was open to the attack of any other British cruiser, though Mr. Gil- 
 pin had been anxious to avoid giving them any molestation. That 
 this part of the public property reverted to the Danish government; 
 the Danish municipal officers naturally remained in possession of all 
 , that was not destroyed and could not be carried away by The Clio, 
 and, therefore, that it was impossible to say, that it could, in any 
 manner, be considered as the property of the crown of England. 
 
 In reply, the King^s Advocate and Arnold, contended — That the 
 objection that this capitulation was not to be considered as a treaty, 
 because Captain Baugh acted without authority and solely with a 
 view to his private interest, was not sustainable. That it could not 
 
106 CASES DETERMINED IN THE 
 
 Thorshaven and its Dependencies. Edw. 
 
 be denied that officers in his Majesty's service were competent to 
 make treaties upon the surrender of any place to his Majestyfs arms, 
 though such treaties have only the form of articles of capitulation 
 until their final ratification. That the object of Capt. Baugh was a 
 national object ; it was to reduce this island, in order that his Ma- 
 jesty's government might afterwards take further steps respecting it. 
 That it could not be denied that the inter<psts of the whole island 
 were included in the capitulation, whicTi was made in the names of 
 the two sovereigns. That it was clear, from the stipulation 
 [ * 106 ] respecting private property in the third ' article, that it ex- 
 tended to all the inhabitants of the island. That although 
 there had been no formal transfer of the sovereignty, there was a pos- 
 session which gives all the rights of sovereignty during the war jure 
 belli, and, therefore, if the court should feel it necessary to decide on 
 so extensive a question, it would consider these persons as actually 
 under the protection of Great Britain. That the capitulation was 
 equally effectual for the protection of all property, public and private, 
 for it disposed of all ; private property is protected, and public pro- 
 perty was to be given up, and the privateer, therefore, could do no 
 more than seize for the crown. That it was impossible to say that 
 the capitulation was at an end when The Clio went away, for if so 
 she might have returned the next day, and seized all the private pro- 
 perty in the island. That she had dismantled the fort, and stripped 
 the Danes of their means of defence, which they had surrendered 
 upon the faith of the treaty ; and if the treaty was to expire on her 
 departure, any small privateer which could not have attacked the fort 
 itself, taking advantage of the fact of capitulation, might have come 
 upon them in their defenceless state, and made prize of every thing 
 upon the island. That such an interpretation of the capitulation 
 would be productive of the most serious consequences ; it would be 
 a breach of national faith towards these persons who had surrendered 
 their own means of defence, under a treaty which was to protect 
 them from the operations of his Majesty's arms. 
 
 , Court. I take it that the operations of privateers are confined to 
 the attack of fortified places on land. |^ 
 
 Counsel. That is the restriction ; by the 9th section of the Prize 
 
 Act,^ privateers are not entitled to capture private property 
 
 [ * 107 ] on land ; now this had ceased to be a * fortified place ; it 
 
 ■Cvas completely dismantled, and it is not in the power of 
 
 145 Geo. m. c. 72. 
 
HIGH COURT OF ADMIRALTY. 108 
 
 Tliorshaven and its Dependencies. Edw. 
 
 the Lords of the Admiralty to grant a commission that would give 
 the privateer an interest in this property ; if it is to be ma^e the sub- 
 ject of condemnation as public property, it must go to the crown ; if 
 it should turn out to be private property our prayer is, that it may be 
 restored until a claim is given by the lawful owners. 
 
 Judgment. 
 Sir W. Scott. This is a proceeding of a very singular nature, 
 ariding from the capture of this Danish island by one of his Majesty's 
 ships of war, and a subsequent seizure of certain property found there 
 by a commissioned privateer. The particular circumstances of the 
 transaction are stated in an act on petition. On the part of the 
 crown, it is alleged, " that Thomas Baugh, Esq., commander of his 
 Majesty's ship Clio, whilst cruising with the said ship off the Faro 
 Islands, received intelligence that some enemy's vessels were lying in 
 Thorshaven, in the island of Stromoe, one of the Faro Islands ; that 
 the said island being a place of considerable strength, as well as of 
 advantage to the enemy from its situation, the said Captain Baugh 
 conceived it a duty incumbent on him to capture the said island, if 
 possible ; and accordingly on the 15th of May, 1808, having arrived 
 off the island, he anchored The Clio within half gun-shot of Thors- 
 haven Castle, when the Danish governor -consented to a surrender of 
 the island. That articles of capitulation were entered into by which 
 it was provided, that the castle and batteries, together with all the 
 arms, ammunition, and warlike stores, should be delivered up to the 
 British force ; that the garrison should march out with the honors of 
 war, and engage not to serve in any capacity against -his 
 * Britannic Majesty, during the term of one year ; that all [ * 108 ] 
 private property should be respected ; and that all govern- 
 ment property shc^k be at the disposal of the captors." The right, 
 therefore, of the privateer to capture and proceed against this pro- 
 perty is denied by the crown, on the ground that it was protected 
 under this capitulation ; but it is contended, on the part of the priva® 
 teer, that the capitulation was not a valid proceeding, because it ori- 
 ginated wholly in the mind of the commander of The Clio, and was 
 not the result of any instructions communicated to him from govern- 
 ment. Now there are instances innumerable in which it has been 
 held by this court that an officer, not immediately Tinder the eye of 
 government, may originate such expeditions, subject to a responsi- 
 bility ; and that government in the present instance has approved of 
 what was done, is demonstrated by this circumstance, that the crown 
 is here standing upon the act of Captain Baugh, and claiming an 
 interest under it. It is, therefore, as much an authorized capitulation 
 
109 CASES DETERMINED IN THE 
 
 Tliorshaven and its Dependencies. Edw. 
 
 as if Captaia Baugh had gone out under special directions to make 
 the capture. If the government had disavowed and disclaimed the 
 whole proceeding, and had said, we do not think this remote island . 
 a proper object of the public force, there might have been room for 
 the objection; but looking to what has actually been the conduct of 
 government, it must be considered as -giving its sanction to the whole 
 transaction. The object of Captain Baugh, as it is stated in the act, 
 was not merely to reduce the fortress, but to capture the island, and 
 the capitulation which was entered into between him and the go- 
 vernor, who had the chief command, was not made in their own 
 names, but in those of their respective sovereigns. Now what is this 
 but a public convention ? It is a treaty bearing the stamp 
 [ * 109 ] * and impress of public authority, between persons acting in 
 the names and as the representatives of the governments to 
 which they belong. In the first article it is stipulated, " that the cas- 
 tle, with all the arms and ammunition shall be delivered up;" in 
 other words, that all the means by which the Danish government 
 could keep a forcible possession of the island, shall be put into the 
 hands of the British. The next is, " that the garrison shall not serve 
 against his Majesty for one year;" and the third article, which is the 
 most pertinent to the present inquiry, provides that " all private pro- 
 perty shall be respected." » By which I understand, not merely the 
 property of persons belonging to the garrison, but of all the indi- 
 viduals under its protection; for the surrender of the fortress was 
 in fact, and in all reasonable understanding, the surrender of the 
 island, and it was so acted upon. The same article then goes on to 
 say, that " all public property shall be at the disposal of the captors," 
 referring undoubtedly to the public character in which they profess 
 to treat, and not to the assumption of any right to dispose of it on 
 their own private account. It is merely that iH^all pass into the 
 possession of the captors, for the purposeof being brought to adjudi- 
 cation, subject to the legal considerations applying to such property 
 Jihnder our own internal regulations. It has been argued much at 
 length upon the effect of such a capitulation, that it does not convey 
 the sovereignty; but though it may .not operate to the direct convey- 
 ance of the sovereignty, which is usually left to be determined by 
 treaties of peace, it transfers a present possession to the capturing 
 power, subject to the future events of war and treaties ; it is part of 
 its present possession, and, perhaps, part of its ultimate jurisdiction. 
 It appears, that when possession of the island was taken, 
 [ * 110 ] *the British colors were hoisted on the castle; now can 
 there be a more direct assertion of British jurisdiction, or a 
 more entire divesting of Danish authority than this ? It is not clear 
 whether the English flag was still flying at the time of the second 
 
HIGH COURT OF ADMIRALTY. Ill 
 
 Thorshaven and its Dependencies. Edw. 
 
 capture. When Captain Baugh quitted the island, which was in a 
 few days after the capture, he did not leave any of his own people to 
 keep possession, but intrusted it, together with some public stores 
 and treasure, to the charge of the Danish municipal officers, whom 
 he commissioned to act provisionally ; having accepted that trust, if 
 they removed the British flag, it was a breach of duty on their part, 
 which will not deprive the British government of the rights acquired 
 by the capitulation. Captain Baugh left the island it is true, but 
 how did he leave it ? He did not relinquish it on the part of Great 
 Britain, but, as is not unusual, deputed the former magistracy to 
 maintain the public tranquillity under a new authority. It is said to 
 be hardly credible, that Captain Baugh would have left this treasure 
 behind if it had come to his knowledge, when there could be no diffi- 
 culty in bringing it off. "What may have been his views in suffering 
 it to remain, is not stated, but if it is necessary to suggest a reason 
 founded on public convenience, I think that suggestion might easily 
 be furnished from the obvious policy to be observed in reference to a 
 newly constituted government in a remote and newly acquired pos- 
 session. The act then states, " that since the said surrender or capi- 
 tulation the said property has been illegally taken possession of by 
 Baron Hompesch, and others, concerned in The Salamine, privateer; 
 which treasure and other public property, was and is within the true 
 intent and meaning of government property, as specified in the third 
 article of the capitulation, and that if any part of the pro- 
 perty taken was * private property, it is protected from [ * 111 ] 
 capture and confiscation under the said third article." Now 
 what was the condition of this island under the capitulation ? I 
 conceive that nothing can be more clear than that if the capitula- 
 tion was not disavowed by the British government, it was binding 
 upon the respective parties. It was a stipulation operating on the 
 Danes to give up all public property, and on the British to respect 
 all private property. Suppose that the English government, without 
 disavowing the capitulation, had sent a force the next day to take 
 possession of the private property in the island, could there have 
 been a more outrageous breach of public faith ? On the other hand, 
 what was the obligation on the part of the Danes ? They were 
 bound to give up all public property, and if any was kept back, as it 
 is alleged on the part of the privateer that this was, it was kept back 
 in fraud of the British government, in whom it already vested by 
 compact, and, being fraudulently withheld, it did not become again 
 the property of the Danes. By the capitulation, the English govern- 
 ment became legally entitled to the whole of the public property, and 
 this seems to be admitted in the act on petition ; for it is there stated 
 
112 CASES DETERMINED IN THE- 
 
 Thorshayen and its Dependencies. Edw. 
 
 that " the said ship, Salamine, having arrived at Thorshaven, the 
 said Thomas Gilpin, the captain of the privateer, and part of his 
 crew, immediately landed, in order to storm and take possession of 
 the fort, but found that it had been, about a fortnight before, partly 
 destroyed by his Majesty's ship, Clio ; that The Clio had quitted the 
 said town without having left any part of her crew, after having 
 taken on board such of the public stores and property' as were found 
 in the said town, and delivered up to the said Thomas 
 [ * 112 ] Baugh, as government property, under the articles * of capi- 
 tulation, the purport of which capitulation, was communi- 
 cated to the said Thomas Gilpin ; that in consequence thereof, and 
 in full persuasion that all public property had been given up to the 
 said Thomas Baugh, he, the said Thomas Gilpin, his oificers, and 
 crew, the following day reembarked and went to sea." The act then 
 goes on to state, that " having been afterwards informed that certain 
 goods and moneys belonging to the King, of Denmark had been 
 kept back, the said Thomas Gilpin returned and took possession of 
 the property in question." Here, then, is a distinct admission that 
 the capitulation operated, and was intended to operate, upon the 
 whole of the public property. But, say they, some of the public pro- 
 perty Was not delivered up ! Whether it was fraudulently withheld, 
 or whether it was left there for the purposes of government, or the 
 convenience of the captor, does not appear ; but supposing that it 
 was surreptitiously detained, what was the duty of the privateer ? 
 Certainly, upon making the discovery, the only proper course was to 
 take possession of the property; as salvor for the crown, and to notify 
 the circumstance. To say that, in this short period of time, the 
 capitulation and all its consequences were gone by, while the inha- 
 bitants claimed protection under it, and while this qualified posses- , 
 sion of the island still continued, is contrary to all reason. If pri- 
 vate individuals had, at that period, a right to shelter their property 
 under the capitulation, the British government had also a title to all 
 public praperty, under the same capitulation. It is clear that, if the 
 property was fraudulently withheld, it ought to have been taken pos- 
 sessipn of by the crown of Great Britain, and the private captors 
 ought not to have attempted to appropriate it to themselves, by set- 
 ting up a title of their own. It is hardly necessary for me 
 [ * 113 ] to enter * into the other topics which have been thrown out 
 in the argument ; but, as they have been touched upon, I 
 will just state my opinion upon one point, which is, that the com- 
 missions of privateers do not extend to the capture of private pro- 
 perty upon land ; that is a right which is not granted even to the 
 king's ships. The words of the third section of the Prize Act extend 
 
HIGH COURT OF ADMIRALTY. " 114 
 
 Thorshaven and its Dependencies. Edw. 
 
 only to the capture, by any of his Majesty's ships, " of any fortress 
 upon the land, or any arms, ammunition, stores of war, goods, mer- 
 chandise, and treasure belonging to the state, or to any public trad- 
 ing company, of the enemies of the crown of Great Britain, upon 
 the land." Here, then, the interests of the king's cruisers are ex- 
 pressly limited, with respect to the property in which the captors can 
 acquire any interest of their own, the state still reserving to itself all 
 private property, in order that no temptation might be held out for 
 unauthorized expeditions against the subjects of the enemy on land. 
 With regard to private ships of war, the Lords of the Admiralty are 
 empowered, by the ninth section, to issue letters of marque to the 
 commanders of any such ships or vessels, — for what purpose? Why, 
 " for the attacking and taking any place or fortress upon the land, or 
 any- ship or vessel, arms, ammunition, stores of war, goods, or mer- 
 chandise, belonging to, or possessed by, any of his Majesty's ene- 
 mies ; " — where ? " In any sea, creek, river, or haven.." I perfectly 
 well recollect that it was the intention of those who brought this bill 
 into parliament, that privateers should not be allowed to make depre- 
 dation uppn the coasts of the enemy for the purpos'e of plundering 
 individuals; for which reason they were restricted to fortified places 
 and fortresses, and to property water-borne ; and, therefore, 
 although I am not sufficiently informed * as to the precise [ * 114 ] 
 nature of this property, yet taking it to be private property, 
 and not within the reach of the capitulation, it is that in which the 
 privateer has acquired no legal interest under her commission. I 
 cannot dismiss tfiis subject, without at the same observing, upon the 
 conduct of the persons concerned in this privateer in terms of some 
 disapprobation. When they found this public property, which, under 
 the capitulation, enured to the benefit of the crown of Great Britain, 
 it was their duty to have given notice to the crown officers of the 
 fraud which had been practised, limiting their own expectations to 
 the interest which they would derive as salvors for the crown. The 
 only witness brought forward to speak to the circumstances of the 
 capture and the nature of the property is Baron Hompesch, a releas- 
 ing witness, who was rated on board this privateer as chaplain ; no 
 one person has been produced, who, from his own knowledge,' can 
 speak to the nature of the property. Upon any supposition, I am of 
 opinion that the privateer has no interest ; and I shall, therefore, con- 
 demn the public property to the crown, conformably to the terms of 
 the, capitulation, and reserve the consideration of the private pro- 
 perty till it is claimed. 
 
 EDW, 8 
 
115 ■ CASES DETERMINED IN THE 
 
 Pensamento Feliz. Edw. 
 
 [ * 115 ] * Pensamento Feliz, Megalhaens. 
 
 July 11, 1809. 
 
 Salvage given for bringing off a vessel from a Spanish port, within the power, though not 
 in the actdal occupation, of the ITrench. 
 
 This was a Portuguese ship, with a cargo belonging to British 
 and Portuguese merchants, which had put into the port of Muros, in 
 S'pain, in consequence of having sustained damage on her voyage 
 from Pernambuco to Liverpool. The v6ssel was brought out by the 
 boats of The Endymion, frigate, at which time there were only four 
 persons on board. The ship and cargo were restored ; but it appear- 
 ing that a considerable benefit had been rendered to the parties inte- 
 rested in the property, by this interference of the captors, a question 
 arose as to the nature of the salvage to which they were entitled. 
 
 Judgment. 
 Sir W. Scott. The question principally agitated here has been, 
 whether the rescuing of this ship and cargo is a service of that 
 description which will entitle the party to salvage under the act of 
 parliament. No one can deny that the property has been rescued 
 from considerable peril by Captain Capel, and that he is entitled to 
 a remuneration of some kind or other ; but it is contended that the 
 service rendered was not of a military kind, and that therefore it is a 
 matter not cognizable in the Prize Court. Now supposing it were 
 clear that there really was no salvage, as of war, the effect of this 
 objection would only be, that I should put the parties to the expense 
 of a new proceeding in the Instance Court, by transferring this case 
 from one jurisdiction to the other. , There is no doubt that the Court 
 
 of Admiralty has a general jurisdiction to reward services 
 f * 116 ] of this nature, and that * the party would recover by action 
 
 in the Instance Court ; but then the proceeding there would 
 be attended with fresh expenses. As the question, therefore, has 
 arisen incidentally here, the court would be disposed to lay hold of 
 any circumstances, that might give this service the character, of a war 
 salvage, and to press them with more effect than it might otherwise 
 do, for the purpose of bringing the case within the jurisdiction which 
 has been already exercised upon it; and taking all the circumstanpes 
 together, I think there is enough to justify the court in so doing. 
 This ship was in the port of Muros when the French took possession 
 of the place. It is true they had retired, to proceed on another expe- 
 
HIGH COURT OF ADMIRALTY. 117 
 
 The Tanny and Elmira. Edw. 
 
 dition ; but they were not driven away, their hand was still in effect 
 upon the town, and they had it in their power to return whenever 
 they thought proper. The principal persons of the place were in the 
 French interest, and entirely disposed to second any attack upon 
 British or Portuguese property, and it is highly improbable that they 
 would willingly have suffered this ship and cargo, which they knew 
 to be destined for England, to come away without molestation. 
 The French, too, were near at hand, and not unlikely to return ; and 
 under such circumstances, and to protect the parties from further 
 expense, I think I am not guilty of any violent straining of the prin- 
 ciple in pronouncing this a military service, and, consequently, that 
 the parties under the act are entitled to a salvage of one eighth. 
 
 * Fanny and Elmira, Hicks, master. [ * 117 ] 
 
 July 21, 1809. 
 
 American ship restored on salvage to former owner, but without prejudice to the rights of a 
 party claiming under an asserted purchase from the master, in Ireland. 
 
 This was an American vessel, which had been sold in Ireland by 
 the master, without the authority of his owners. He stated, in an 
 affidavit which was given in, "that in consequence of damage which 
 the vessel had sustained by getting upon the rocks in Sligo Bay, he 
 deemed it right to call a survey, which was accordingly made by 
 competent persons, who reported that it would require 1,500Z. to repair 
 the vessel, a sum far exceeding her value, and that it would be for 
 the interest of the concern to have her sold. That in consequence of 
 this advice, the ship was advertised for sale, when Mr. P. Ormsby, of 
 Louisville, in Kentucky, then at Sligo, became the purchaser for the 
 sura of 305Z. That he accordingly executed a bill of sale for the ship 
 to Mr. Ormsby, who, by his desire, paid 167Z. 3s. "9^ into the hands of 
 Messrs. Hume, of Sligo, the correspondents of his owners, and the 
 remainder was carried to account between him and Ormsby. That 
 Ormsby soon after made an offer to sell him a quarter part of the . 
 said vessel at the price which he had himself given for her, provided 
 the deponent would consent to navigate her again as master, and to 
 which he acceded. That after the vessel was repaired, she proceeded 
 on a voyage to Riga, from whence she was returning to the port of 
 London, when she was captured by the Danes, and recaptured by 
 The Hound sloop of war. 
 
118 CASES DETERMINED IN THE 
 
 ip'anny and Elmira. Edw. 
 
 [ *118 J * Judgment. 
 
 Sir William Scott. This is the case of a vessel which 
 is at present in the possession of the court, having been recaptured 
 from the enemy and brought to this country. The ship is clearly • 
 American property, whoeveif may be the owners ; and the only ques- 
 tion is, to whom it shall be restored. A claim has been given in by~ 
 a Mr. Ormsby, an American, who represents himself as having pur- 
 chased the vessel at a public sale at Sligo, in Ireland ; and there is 
 also a claim on behalf of Messrs. Coit & Edwards, of New York, 
 who are admitted to be the original owners, and whole names appear 
 as such in the registrar and other ship papers. A sale of the vessel , 
 was made in Ireland, by the master, without the authority of his 
 owners ; and it is contended, that such a sale, being made under the 
 pressure of necessity, will convey a valid title to Mr. Ormsby, the 
 purchaser. But, in the first place, it must be shown that there was a 
 necessity, and then it remains to be considered whether it was such 
 as by law would give the master a right to sell. That such a case 
 may arise, I am not prepared to deny. Suppose, for instance, a ship, 
 in a foreign country, where there is no correspondent of the owners, 
 and no money to be had on hypothecation to put her into repair. 
 Under these circumstances, what is be done ? The ship may rot be- 
 fore the master can hear from his owners ; and, therefore, if the neces- 
 sity were clearly shown, with full proof that every thing was done 
 optimd fide, and for the real benefit of the owners, the court might be 
 disposed to sustain a purchase so made. There is a very convenient 
 practice which obtains in the Courts of Vice- Admiralty in 
 .[*119 ] the West Indies, * where the fact of distress being proved, 
 the transaction is not left to the master, but a sale is ordered 
 under the superintendence of the court itself. The legal validity of 
 such transfers has however, been contested in the courts of this coun- 
 try, and they were not held to be good ; though the learned lord who 
 presided in the court where that decision took place, might, perhaps, 
 incline to consider it as a defect in the law of this country that a 
 practice so conducive to the public utility could not legally be main- 
 tained. In a case of that description, I say, strongly put, where there 
 was no ground for suspicion, although I do not know that such a 
 power is given to the master by the general maritime law, yet, feel- 
 ing its expediency, this court would strain hard to support the title of 
 the purchaser. But then there must be the clearest proof of the neces- 
 sity ; it must be shown, not only that the vessel was in want of repair, 
 but likewise that it was impossible to procure the money for that pur- 
 pose. Now, in this case, all that is said in the bill of sale is, that the 
 ship had suffered so extremely in the harbor of Sligo, that, upon a 
 
HIGH COURT OF ADMIRALTY. 120 
 
 Fanny and Elmirx Edw. 
 
 survey of her situation and state, siie was condemned, and a sale for 
 the benefit of the concerned recommended. Mr. Ormsby states that, 
 since the purchase, he has been under the necessity of laying out up- 
 wards of 8001. upon the vessel to put her in repair ; but then, if it was 
 worth his while to do all this, how does it appear that it was not 
 .equally fit to be done for the original owners? There is no constat 
 that the master could not obtain money,for the repair of the vessel ; 
 on the contrary, the correspondents' of the owners, al; Sligo, declare, 
 that they did every thing in their power to prevent the sale, and were 
 ready to ihake any advances that might be found necessary. 
 But the court is *not called upon to determine upon the [*120 ] 
 validity of the title, which may be matter of discussion here- 
 after in the American courts ; it is only required to give possession ; 
 and, undoubtedly, I shall not take upon myself to do any thing which 
 might ha-ve the appearance of affirming this purchase, which has 
 been conducted in a manner that throws a great degree of suspicion 
 upon the whole transaction. The fact that the master afterwards 
 became a subordinate purchaser, under Ormsby, of one fourth part 
 of the vessel, and at the price which himself had given for her, smells 
 rank of coUasion. It is also a very extraordinary circumstance, that 
 the master, who executed the bill of sale annexed -to the claim of Mr. 
 Ormsby, in which he represents himself as having full authority to 
 dispose of this ship, says, in his answer to the tenth interrogatory, 
 that "the ship was sold for the benefit of the underwriters, and, there- 
 fore, no bill of sale was made." The sbip's register, and all the 
 papers, point to Coit & Edwards as the ownprs of the vessel, and I 
 have no hesitation in restoring the possession to them. But it is said 
 that Mr. Ormsby does not object to the restitution of the ship to the 
 former owners, provided he is indemnified for the money which he 
 had laid out ; and the case has been assimilated to some others, in 
 which a neutral, having purchased under a title which was not allowed, 
 the court has given the expenses of amelioration. But those were 
 bond fide purchases, under a title which the neutral thought to be 
 good, and which afterwards was disallowed, upon a principle of law, 
 which was latent to him. Here I do not say there was actual collu- 
 sion between the parties ; but there is that which would, in 
 some degree, warrant the suspicion. How any man * of [ * 121 ] 
 common prudence could have become a fair and disinte- 
 rested purchaser, under such a bill of sale, and where there was such 
 reasons to doubt the regularity of the master's conduct, is not very 
 intelligible; liut, if Mr. Ormsby has so done, he must look to the seller 
 for his remedy. I certainly shall not refer it to the registrar and mer- 
 chants to report upon the money asserted to have been laid out by 
 8* 
 
122 CASES DETERMINED IN THE 
 
 The Lucy. Edw. 
 
 Mr. Ormsby, in the amelioration of the vessel, as owner under this 
 purchase; besides, the proposition is subject to this further inconve- 
 nience, that, supposing him to be disposed to relinquish his claim to 
 the vessel, the master may dissent, and prevent his retiring under such 
 an arrangement. I, therefore, restore the possession of the vessel to 
 the persons appearing by the registrar and ship's papers to be the 
 owners, without prejudice to such rights as Mr. Ormsby, or any other 
 persons, may have acquired by purchase or otherwise, as shall appear 
 to the proper court of justice in America. 
 
 1*122] *Thb Lucy, Taylor. 
 
 July 28, 1809. 
 
 Sale of prize vessel by the enemy not within the restrictions of the order in council, Novem- 
 ber 11, 1807. 
 
 This was the ca'fee of an American ship which had been seized by 
 the French, at Hamburg, on account of her having come from Eng- 
 land. The ship was condemned by the Prize Tribunal at Paris, soon 
 after which she was purchased at a public sale for her former owners ; 
 and the question was as to the validity of the purchase under the 
 order in council, which declares the sale of ships by the enemy to 
 neutrals, to be illegal. 
 
 Judgment. 
 Sir William Scott. I am of opinion, upon the whole, that the 
 parties are, in this case, entitled to restitution. It is a proceeding 
 under the order in council, prohibiting, oh a principle of retaliation, 
 the sale of ships by the enemy, on a supposition that they had de- 
 clared all sales of English vessels to neutrals to be null and void. It 
 is certainly a restriction which is contrary to the general policy of this 
 country, but it was thought necessary to counteract and repel the 
 injurious effects of the rule adopted by the enemy. When the cause 
 came on before, I was inclined to hold, that whatever hardships might 
 arise to neutrals, it was a just application of the principle of retalia- 
 tion, and, as such, the consequence should be laid at the door of the 
 enemy. At the same time, it did appear to me to be extremely 
 necessary not to carry the rule one inch beyond the purpose for which 
 it was adopted; .and that, if it could be shown that thq enemy 
 
HIGH COURT OF ADMIRALTY. 123 
 
 ___ if 
 
 The Lucy. Edw. 
 
 did not follow up their * ordinances to their full extent, the [ * 123 ] 
 policy of this country would suggest a corresponding relax- 
 ation. In this case the ship had been seized at Hamburg by the 
 French, on the ground of coming from this country, and was sold 
 under a sentence of condemnation, when she was repurchased by her 
 former owners. The court felt the hardship of pseventing neutrals 
 from purchasing their own vessels, and, therefore, suspended its de- 
 cree to see what was the exact nature of the restriction imposed by 
 the enemy. On looking into the French Code de Prizes, I have rea- 
 son to think that it was not a part of French policy to restrict the 
 sale of enemy's prize vessels ; for though it is laid down in general 
 terms in the ordinances of 1744 and 1778, that ships constructed by 
 the enemy, or such as have belonged to«an enemy proprietor, cannot 
 be considered as the property of neutrals or of allies, unless it shall 
 be shown that the transfer took place before the commencement of 
 hostilities; yet there is an arrete of the 16th of January, 1780,^ from 
 which it appears that French ships taken and sold as prize 
 by the enemy, are not to be * considered as within the terms [ * 124 ] 
 of these rigorous orders. Now this is a case precisely of 
 that description ; the ship was taken by the French, and repurchased 
 "by the former owner; and, as I think, it would be improper to carry 
 the restriction further than the enemy has done, unless the captors 
 can show that a more rigid rule has been applied by the modern 
 government of France, I shall restore, giving them their expenses.^ 
 
 1 Par I'article 7 de mon reglement du 26 Juillet, 1778, concernant la navigation des 
 sujets des puissances neutres, j'ai ordonne la confiscation des batimens qui auroient ap- 
 partenu h. mes ennemis, moins qu'il ne fut justifie par pieces authentiques qu'ils ont etd 
 achetes avant les hostilities. La ferme rc^solution ou je suis de donner toute protection 
 k la liberte du commerce, m'ayant determine a excepter a cette disposition les batimens 
 de mes sujets qui auroient dtes pris et vendus par mes ennemis ; je vous fais cette lettre, 
 pour vous dire que mon intention est, que les vaisseaux Francois, achetd par les neu- 
 tres depuis le commencement des hostilities, ne puissent etre reputes de bonne prize 
 quoiqu'ils aient appartenu a mes ennemis. Lettre du Koi A. M. L'AMIEAL Code des 
 Prizes, torn. 2, p. 829. ^ 
 
 1 The captor was unable to show that any other rule had been applied Ty the pre- 
 sent French government, and consequently the restitution passed under this deqree. 
 
125 CASES DETERMINED IN THE 
 
 The Forsigheid. Edw. 
 
 FoEsiGHEiD, Willedsen. 
 
 July 28, 1809. 
 
 Breach of blockade. Claim of joint interest on the part of the fleet, admitted, the capture 
 being withip the purposes of the associated service.^ 
 
 In this case an allegation had been given in on behalf of the fleet 
 under the orders of Admiral Dickson, setting forth a claim of joint' 
 capture. The allegation stated, "that Admiral Dickson haying re- 
 ceived orders to proceed with the squudron under his command, for 
 the purpose of forming the fflockade of the Texel ; he judged it neces- 
 sary, for the better execution of the service, that a closer blockade 
 should be effected with the view of intercepting any vessels that 
 might, from their small draught of water, be able to keep close in. 
 shore, and thereby evade the vigilance of his squadron. That by a 
 certain order in writing under his hand, he directed Captain Smith, 
 of his Majesty's ship America, with some other vessels, to cruise be- 
 tween the Hakesand and Camperdown, taking care strictly to watch 
 the motions of the enemy, and to join him occasionally for the pur- 
 pose of communicating intelligence of any movements made 
 [ * 125 ] by *them. That Captain Smith was at the same time ex- 
 pressly ordered carefully to avoid being at such a distance 
 as to prevent his observing signals made from the fleet. That some 
 short time afterwards, Admiral Dickson, by an order in writing of the 
 same tenor, directed Captain Bligh, of his Majesty's ship Director, to 
 take the station of The America, and perform the services above 
 mentioned with the then detached ships. That in consequence of 
 the aforesaid orders, his Majesty's ships Director, Veteran, and La- 
 tona, with The Hazard, cutter, were, in the morning of the fourth 
 day of May, 1799, off the mouth of the Texel, and between the rest 
 of the fleet and the shore, and were acting in concert and cooperating 
 with the rest of the squadron under Admiral Dickson. That from 
 daylighHtill half-past five o'clock in the said morning, they were in 
 sight of the fleet at the distance of about five or six miles, and stand- 
 ing on different tacks towards the enemy's shore, but were soon after 
 lost sight of, until about a quarter past nine o'clock, by reason of an 
 intervening haziness. That between the said hours of half-past five 
 and nine, the said detached ships met with and detained The For- 
 
 • [Note as to joint captors, 1 Acton, 128.] 
 
HIGH COUET OF ADMIRALTY. 126 
 
 The Forsijieid. Edw. 
 
 sigheid, and four other ships, for which the fleet had been watching 
 some days. That at the time of the capture the fleet was not at a 
 greater distance than ten or twelve miles from the inshore squadron, 
 and were sufficiently near to have heard the report of the guns, had 
 any resistance been made, and to have immediately joined in battle. 
 That if at the time of capture, the fleet was not in sight, it was 
 caused by the intervening haziness of the weather, as the detached 
 ships could not have been in any situation between the fleet and the 
 shore, without at the same time being in sight, if the wea- 
 ther had been clear. That between nine * and ten the de- [ * 126 ] 
 tached ships again appeared in sight, vfith the vessels they 
 had brought to, and at eleven joined the rest of the squadron." 
 
 Judgment. 
 StR'W. Scott. This case has been depending a great length of 
 time, in order to receive the benefit of the judgment of the Superior 
 Court in the case of The Nordstern, which has lately been decided.^ 
 In that case the prize was not taken for a breach of the blockade of 
 Cadiz, from which port she was coming out at the fime, the fleet not 
 being stationed there for the purpose of preventing the" egress of mer- 
 chant vessels, but to watch the enemy's fleet, which was then in a 
 state of preparation for sea. The case, therefore, resolved itself into 
 a mere question of property not involving any question of breach of 
 blockade, and- it was held that the rest of the fleet were not entitled 
 to share in the proceeds of the cargo, which was so condemned, as 
 the capture was not within the purposes for which they were asso- 
 ciated ; from which it should seem to follow, that ships captured for 
 a breach of blockade would be the joint prize of the whole fleet em- 
 ployed on that service. On admitting the allegation in this case, I 
 laid it down as a principle, that there was in the nature of such an 
 association a unity and identity of service, that formed a just founda- 
 tion for joint interest in prizes taken for the violation of blockade, 
 because it could not be supported without unity of operation. The 
 association formed the blockade, which could not exist without it. 
 It remains, therefore, for me to consider whether the evidence is such 
 as to bring the case within the principle ; and I am of opinion that it 
 does. It appears that this prize was captured by certain vessels be- 
 longing to the fleet of Admiral Dickson, which he had sent 
 close in shore for *the purpose of executing the duty of the [ * 127 ] 
 blockade in a more eflectual manner, with express orders to 
 
 Lords, July 18, 1809. 
 
128 CASES DETERMINED IN THE 
 
 The Jonge"osias. Edw. 
 
 avoid being at such a distance as to be out of sight of his signals. 
 From daylight till half-past five o'clock on the nnorning of the cap- 
 ture, they were in sight of the fleet, but were soon afterwards ob- 
 scured by an intervening haziness of the weather, and were not seen 
 again till about a quarter past nine, having in the interval made the 
 capture in question. It is admitted in the answers that these ships 
 were associated in the same service of blockade, and that in the exe- 
 cution of that service some were stationed close in shore, and others 
 at a distance, further out, and that this prize was taken not only dur- 
 ing the association of the squadron for this purpose, but for a breach 
 of the blockade ; and, therefore, upon the principle which I laid down 
 upon the admission of the allegation, I am bound to pronounce that 
 the whole fleet must be entitled as joint captors. Admiral Dickson, 
 who gave the orders, appears to think that the capturing ships were 
 detached from the rest of' the squadron ; but they were not sf in the 
 legal sense of the word, which implies not merely a local separation, 
 but that the ships are sent off upon some other service. Here all the 
 ships of the fleet were acting together for the same purpose, and con- 
 sequently all are ^equally entitled. 
 
 [*128] *JoNGE J051AS, Jurgensen.i 
 
 July 29, 1809. 
 
 Danish ship seized in the Tagus by Admiral Berkley. Claim by master for his share in the 
 vessel as protected under the sixteenth article of the convention of Cintra, not admitted. 
 
 This was a Danish ship, which, with several others, had been 
 seized by Admiral Berkley in the Tagus, on the 24th of February, 
 1809, and sent to England for adjudication. In the first instance a 
 claim of territory had been advanced by the Portuguese consulj but 
 that was withdrawn, and the question now arose upon a claim 
 which had *been given in on behalf of the master for three eighth 
 parts of the ship, his property, as protected under the sixteenth article 
 of the convention of Cintra.^ The article provides, "that all subjects of 
 France, or of powers in friendship or alliance with France, domiciliated 
 in Portugal, or accidentally in the country, shall be protected ; their pro- 
 
 > [Affirmed on appeal, Feb. 9, 1811.] 2 August 30, 1808. 
 
HIGH COUET OF ADMIRALTY. 129 
 
 The Jonge Josias. Edw. 
 
 perty of every kind, movable and immovable, shall be respected; and 
 they shall be at liberty either to accompany the French army or to re- 
 main in Portugal. In either case their property is guaranteed to them, 
 with the liberty of retaining or of disposing of it, and of passing the 
 produce of the s^ thereof into France, or any other country where 
 they may fix their residence, the space of one year being allowed 
 them for that purpose. It is fully understood, that shipping is ex- 
 cepted from this arrangement, only, however, in so far as regards 
 leaving the port, and that none of the stipulations above-mentioned 
 can be made the pretext of any commercial speculation." It was 
 stated in the claim ^that the ship entered the port of Lisbon some 
 time in August, 1807, prior to the declaration of hostilities on the 
 part of England against Denmark, and also prior to the 
 occupation of Lisbon * by the French, and that she re- [ * 129 ] 
 mained there unmolested until she was seized by Admiral 
 Berkley. 
 
 On behalf of the claimants, a letter from Admiral Cotton, who 
 commanded off the Tagus, in August, 1808, was relied on to show 
 that he had not acted a§^inst these vessels after, or in consequence- of 
 the convention of Cintra ; and it was contended generally, that as 
 these Danish masters were the subjects of a power in amity with 
 France, and accidentally in the country, they came fairly within the 
 simple construction of the treaty, and were entitled to protection 
 under it, so long as they\-emained in port. That the only exception 
 with respect to shipping related to their quitting the port, and that it 
 was clear, from the exception itself, that property of that description 
 was within the intent and meaning of the 'contracting parties. 
 
 For the captors, it was judged that the proviso as to shipping 
 must be taken with reference to the context, and could have this 
 meaning only ; that if any persons included in the preceding part of 
 the article, happened to be possessed of any property in shipping, the 
 protection should also extend to that description of their property. 
 That the article evidently referred to such persons as were adherents 
 to the French cause in Portugal, and not to pergons going there on 
 other grounds, and with other views. That the permission to dispose 
 of the property, and to pass the proceeds into France, or any other 
 country where they might fix their residence, showed that the article 
 was not intended to apply to this description of persons. That it 
 was an interpretation sufficiently large to admit that it ex- 
 tended to all persons holding connection 'with the French [ *130 ] 
 during the time they were in possession of the country, and 
 
131 CASES DETERMINED IN THE 
 
 Ths Jonge Josias^ Edw. . 
 
 could not be extended to cases not in the contemplation of the con- 
 tracting parties, nor within the sound interpretation bf the words em- 
 ployed in tlte instrument which they had constructed. 
 
 Judgment. . ^ 
 
 Sir William Scott. I am called upon to decide this question, 
 and every consideration of public policy and of tenderness for the 
 parties interested, makes it proper for me not to delay giving the 
 opinion of the court upon the legality of the claim, which has been 
 submitted to its consideration. In the first instance, a claim was 
 given by the Portuguese government for these vessels, as having been 
 taken in violation of the territorial rights of that nation. But it has 
 been withdrawn, and consequently there is an end of any protection 
 
 ' which these Danes can derive from a pretension so introduced, it 
 being an established law that the claim, of territorial right can be 
 advahced only by those to whom the territory belongs ; the subjects 
 of other states can do no more than refer themselves for redress to 
 the neutral power under whose rights they hoped to find protection. 
 The parties, however, have set up a claim under the stipulations of 
 the convention of Cintra, which it is assumj^ are applicable to the 
 property of these Danish masters of vessels. Now I think there is a 
 question preliminary even to this, namely, whether the stipulations of 
 a treaty can be set up by those who are not parties to it;. The 
 French, who were parties to the treaty, might, undoubtedly, though, 
 they are enemies, contend for that construction which they might allege 
 was in the intent and meaning of the contracting parties at 
 [ * 131 ] the time, and they have a * right to demand the application 
 of the treaty so construed, to those persons on whom they 
 meant to confer protection. But whether others who have no rights 
 as parties to that treaty, but who are indirectly benefited by it, are 
 competent to contend for its fulfilment is, I think, more than doubt- 
 ful. Taking it, however, that these Danish masters are competent to 
 
 •claim under the treaty, the question then is, whether the construction 
 here contended for, is that which the court would be warranted. in 
 adopting. For although the court might be disposed to put a favor- 
 able interpretation upon the articles of the treaty, it is bound, to con- 
 strue them according to their natural and fair meaning, and not to 
 impose upon the contracting parties stipulations which were never in 
 their contemplation. The business of the court is to expound and 
 explain, not to frame original treaties. Now, it is a feature of the 
 convention of Cintra, very illustrative of its real character, that it is a 
 treaty for the military evacuation of Portugal by the French army, 
 and that the parties to it are the commanders of the respective arnyes, 
 
HIGH COURT OF ADMIRALTY. 132 
 
 The Jonge Josias. Edw. 
 
 That is a circumstance which impresses a strong conviction that this 
 treaty has no direct reference to maritime interests, and ought not to 
 re'ceive such an application, unless it is distinctly expressed. If there 
 are any articles pointing to the immunity of these vessels, the court 
 would be inclined to give -them full effect, and not to construe them 
 with a punctilious hesitation and scrupulosity, respecting the compe- 
 tence of the authority "under which they were, framed. But, in gene- 
 ral, the fact that it was drawn up by military persons, and for great 
 military purposes, does give the treaty a character which is useful as 
 expository of its true meaning. The maritime department 
 was separate and distinct, and under a distinct * authority ; [ * 132 ] 
 unless, therefore, there are articles that do expressly point to 
 maritime objects, it is reasonable to conclude that they were not in 
 the contemplation of the parties themselves. Taking that as a fair 
 rule of exposition, I am to consider the effect of the 16th article of 
 the treaty, as applied to the claims of the masters of these Danish 
 vessels, which were lying in the Tagus at the time ; and it would 
 certainly be a singular circumstance if the French generals had stipu- 
 lated for the protection of the property of these persons who happened 
 to be upon the spot, amounting only to a small part of the vessels, 
 without making any provision for the remaining parts of those ves- 
 sels, which were equally the property of the allies of France, though 
 not personally in Portugal at that time. The words of the articles 
 are these, '• that the property of persons domiciliated, or accidentally 
 in the country, shall be protected ; " and under this description it is 
 said, that these persons are to be considered as being accidentally in 
 the country, and that therefore they come within the provisions of 
 this article. The words are certainly large, but I must again refer to 
 what I before observed, that this is a treaty applicable to military 
 affairs, to the exclusion of every object of maritime policy. Under 
 the terms "domiciliated," these Danish masters certainly do not 
 come; do they, then, under the other description of persons "acci- 
 dentally in the country ? " If these words stood alone, with the 
 strong disposition I feel to give them the most favorable construc- 
 tion, I should, though not perhaps without doing some violence to 
 their meaning, be inclined to hold thatthese persons, being on board 
 their ships in the port of Lisbon, might be included under the terms 
 " accidentally in the country." I should, under that disposi- 
 tion, be inclined to hold, that the *word " accidentally" ap- [ * 133] 
 plied to all persons in a situation contra-distinguished from 
 domiciliated, though perhaps more immediately to persons attending 
 on the armies, or on visits, or residing there for the purposes of .busi- 
 ness, pleasure, or curiosity. It would require, however, all the indul- 
 
 EDW. 9 
 
134 CASES DETERMINED IN THE 
 
 The Jonge Josias. Edw. 
 
 gence, which I admit the personal circumstances of the case call for, 
 to include under the description, masters of ships coming merely to 
 the port, and not to the country. But when I look to the context,* I 
 think it results in the clearest manner, that the words never were 
 intended to convey such, a meaning ; for how does the article go on ? 
 " That they shall be at liberty to remain in Portugal, or to accom- 
 pany the French army." That is the alternative ; now what kind of" 
 option is this ? what prospect does the permission to accompany the 
 French army, or to remain in Portugal, hold out to these Danish 
 masters ? They could only remain by giving up their vessels and 
 their employment ; and as to following the French army, it is quite" 
 ridiculous, when applied to persons so circumstanced. The article 
 then goes on in the same strain, " that they shall be protected, and 
 may be at liberty to transfer themselves to France, or any other coun- 
 try, in which they may wish to fix a residence." Now these are per- 
 sons who have a fixed residence already in their own country ; they 
 have no wish to remove to France, which is entirely out of all con- 
 templation with them, or to any other country but their own ; they 
 have no intention of disposing of their shares in these vessels, still 
 less of remaining in Portugal. Neither the one nor the other of these 
 alternatives can, without a ludicrous perversion of the terms, be ap- 
 plied to these persons, or to the property of masters of vessels, who come 
 
 to the port only to go back again, and it is evident that they 
 [ * 134 ] were * wholly out of the view of the contracting parties. Then 
 
 follow the words, " shipping is included " in this article, which 
 has very justly been described as clouded in some of that obscurity 
 which hangs over no small portion of this treaty. But I do not un- 
 derstand those words as enlarging the description of persons meant 
 to be benefited. The interpretation which I put upon the words is 
 this : there are a great number of foreign merchants residing at Lis- 
 bon, many of whom are possessed of shipping, and the ships of such 
 persons who are themselves protected by the preceding part of the 
 article to which thesS words must refer, are to be protected also ; it 
 being stipulated, that if they send the ships out to sea, they shall not 
 carry off their property without being under the view of those who 
 have a right to guard against any abuse of the indulgence. Under 
 these considerations, and not without considerable pain, I feel myself, 
 bound to construe the treaty in a manner unfavorable to the claim- 
 ants, and to hold that it does not extend to the protection of their 
 property in these vessels, which I am satisfied ^was not within the 
 view of the persons who framed the convention. There are circum- 
 stances in the case whicii entitle this unfortunate class of men to the 
 utmost indulgence from those who may be ultimately benefited ; 
 
HIGH COURT OF ADMIRALTY. 135 
 
 The Eleanor. Edw. 
 
 but, at present, it is my public duty to pronounce that their property 
 in these vessels is not protected under the treaty. 
 
 * Eleanor, Hall. [ * 135 ] 
 
 November 22, 1809. 
 Appeal from sentence condemning ship for breach of navigation laws. 
 
 Judgment. 
 Sir William Scott. This is an appeal from a sentence pro- 
 nounced by the judge of the Vice- Admiralty Court at Halifax, con- 
 demning this ship and cargo for an alleged breach of the navigation 
 laws. A libel was given in on behalf of the seizor, reciting in the 
 first article the 7 and 8 Will. III. c. 22, s. 2, by which it is provided, 
 "that after the 20th day of March, in the year of our Lord 1698, no 
 goods or merchandises whatsoever shall be imported into, pr exported 
 out of, any colony or plantation in Asia, Africa, or America, belong- 
 ing to his Majesty, or in his possession, or which may hereafter belong 
 unto or be in the possession of his Majesty, his heirs or successors, or 
 sKall be laden in or carried from any one port or place in the said 
 colonies or plantations, to any other port or place in the same, in any 
 other ship or bottom, but what is or shall be of the built of England, 
 or of the built of Ireland, or the said colonies or plantations, and 
 wholly owned by the people thereof, or any of them, and navigated 
 with the masters and three fourths of the mariners of the said places 
 only, under the pain of forfeiture of ship and goods ; " and again, " that 
 all ships coming into«r going out of any of his Majesty's plantations, 
 and lading or unlading any goods or commodities, therein, shall be 
 liable to the same rules, visitations, and forfeitures, as ships are liable 
 to in this kingdom by 13 and 14 Car. II. c. 11;" and also "that 
 when any question shall arise respecting the importation or 
 exportation *of goods ^nto or out of the said plantations, [ * 136 ] 
 the proof shall lie upon the owner, and the clairaer shall be 
 reputed the importer or owner." The libel then refers to the regula- 
 tion contained in the 7 Geo. III. c. 9, " that the master of every ship or 
 vessel coming into or going out of any British colony or plantation, 
 whether such ship or vessel shall be laden or in ballast or otherwise, 
 shall publicly, in the open custom-house, to the best of his know- 
 ledge, answer upon oath to such questions as shall be demanded of 
 
137 CASES DETERMINED IN THE 
 
 , The Eleanor. Edw. 
 
 him by the collector and comptroller, or other principal officer of the 
 customs, for such port or places, concerning such ship or vessel, and 
 the destination of her voyage, and concerning the goods and merchan- 
 dise that shall or may be laden on board, and shall come directly to 
 the custom-house before he proceeds with his vessel to the place of 
 unlading, and make a just and true entry upon oath of the burden, 
 contents, and lading of such ship or vessel, vi^ith the particular marks, 
 numbers, qualities, and contents of every parcel of goods therein 
 laden, to the best of his knowledge ; also where and in what port 
 she took in her lading, of what country built, how manned, who was 
 her master during the voyage, and who are the owners thereof." The . 
 8 Geo. III. c. 22, is next referred to, which provides, " that all forfeit- 
 iires and penalties relating to the trade or revenues of the British 
 colonies or plantations in America, may be sued for and recovered in 
 any Court of Vice- Admiralty which shall have jurisdiction within the 
 plantation where the cause of such prosecution or suit shall have 
 arisen." Then follows the 26 Geo. III. c. 60, generally denominated the 
 
 Register Act, by which it is provided that " in case of any 
 [ * 137 ] alteration of the property in any ship or vessel * registered 
 
 as a British ship, there shall be indorsed on the certificate 
 of the registry, before two witnesses, the town, place, parish, or fac- 
 tory, where all and every, person or persons to whom the property in 
 any ship or vessel, or any part thereof, shall be transferred, shall re-„ 
 side or be a member of; and the person to whom the property in 
 such ship or vessel shall be transferred, shall deliver a copy of such 
 indorsement to the person or persons authorized to-make registry of 
 ships." " That no registry of British ships or vessels shall be made 
 in any port or place other than the port or place to which such ship 
 or vessel shall properly belong, and every registry and certificate 
 gra-nted in any port or place to which such ship or vessel does not 
 properly belong, shall be utterly null and void ; ^nd the port to which 
 any ship or vessel shall be deemed and taken to belong, is declared 
 to be the port from and -to which such ships or vessels shall usually 
 trade, and at or near which the managing owner or owners usually 
 resides or reside, and no ship or vessel shalLbe anywise entitled to 
 the privileges of a British ship, unless the owner or owmers shall have 
 obtained a certificate of the registry of such ship or vessel, in the 
 form described in the said last mentioned statute." " That -v^hen and 
 so often as the master or other person having or taking the charge or 
 command of any ship or vessel registered in manner hereinbefore 
 directed shall be changed, the master or owner of such ship or vessel 
 shall deliver to the person or persons hereinbefore authorized to make 
 such registry at the port where such change shall take place, the car- 
 
HIGH COURT OF ADMIRALTY. 138 
 
 The Eleanor. Eclw. 
 
 tificate of registry belonging to such ship or vessel, who shall there- 
 upon indorse and subscribe a memorandum of such change, 
 and shall forthwith give * notice of the same to the proper [ * 138 ] 
 officer of the port or place where such ship or \jpssel was 
 last registered pursuant to said statute, who shall likewise make a 
 memorandum'of the same in the book of registers;." and also, "that 
 from and after 'the 1st day of August, 1786, no ship or vessel shall be 
 deemed or taken to be British built, or enjoy the privileges thereunto 
 belonging, which shall from thenceforth be rebuilt or repaired in any 
 foreign port or place, if such repairs shall exceed the sum of fifteen 
 shillings for every ton of the said ship or vessel, according to the ad- 
 measurement thereof, unless such repairs shall be necessary, by reason 
 of extraordinary damage sustained by such ship or vessel." The 
 next statute recited is the 28 Geo. III. c. 6, where it is said, " that no 
 goods or commodities whatever shall be imported from any of the 
 territories belonging to the United States of America into the pro- 
 vince of Nova Scotia, under the penalty of the forfeiture thereof, 
 together with the ship or vessel importing the same, with all her guns, 
 furniture, ammunition, tackle, and apparel ; " and it concludes with 
 this general provision, " that every forfeiture shall be recovered in 
 such courts and by such ways, and the produce thereof applied in 
 such manner, and to such uses, as any forfeiture respecting the customs 
 may now be sued for, either in this kingdom, or in any of his Ma- 
 jesty's dominions in North America or the West Indies." Then 
 follows the statute 34 Geo. III. c. 68, s. 22, which provides " that 
 after the expiration of six months from the conclusion of the war, to 
 be notified in the manner in the said act specified, no ship or vessel 
 which is or shall be registered, or which is by law required to be 
 registered, as a British ship or vessel, in any of the ports 
 *of Great Britain, Guernsey, Jersey, the Isle of Man, or[*139] 
 any of the colonies, plantations, or territories belonging to, 
 or which may hereafter belong to his Majesiy, shall be navigated but 
 by a master, and three fourths, at least, of the mariners, British sub- 
 jects ; and also, that if any goods, wares, or merchandise shall be im- 
 ported or brought, exported, or carried coastwise, contrary to the pro- 
 visions of this act, or any of them, or if any ship or vessel shall sail 
 in ballast, or shall sail to be employed in fishing, or, being required to 
 be manned or navigated with a master and certain proportion of 
 British mariners, shall not be manned and navigated according to 
 the provisions of this act, such ship or vessel, with her guns, furni- 
 ture, ammunition, tackle, and apparel, and all the goods, wares, and 
 merchandise on board the same, shall be forfeited." And further, 
 " that from and after the 1st day of March, 1795, when any transfer 
 q * 
 
140 CASES DETERMINED IN THE 
 
 The Eleanor. Edw. 
 
 of property shall be made in any British ship or vessel, while she is 
 upon the sea, on a voyage to a foreign port or ports, the master, if 
 privy to such transfer, shall proceed 'directly to the port for which the 
 cargo on board is ^estined, and shall proceed from such port to the 
 port of his Majesty's dominions to which she belongs, or in which she 
 may be legally registered, and such ship may take on board, in the 
 port for which her original cargo was destined, or in'any other port 
 being in the course of her voyage to the port where she may be 
 registered de novo, such cargo, and no other, as shall be- destined and 
 may be legally carried to the port in his Majesty's dominions to which 
 she belongs, or in which she may be legally registered de novo ; on 
 failure whereof, such ship or vessel shall, to all intents and purposes, 
 
 be from thenceforth considered and deemed and taken to 
 [ * 140 ] * be a foreign ship or vessel, and shall not be again registered 
 
 and be entitled to the privileges of a British ship." And it 
 is also provided, " that every forfeiture incurred by said act may be 
 sued for, prosecuted, and recovered in the same way that any forfeit- 
 ure, incurred by any law respecting the revenue of customs, may 
 now be sued for, prosecuted, and recovered." 
 
 These are the statutes relied on in the libel by the seizor, and the 
 alleged grounds of seizure, are, " That this ship imported a cargo of 
 tobacco, and other articles, into Halifax, from Baltimore, or some 
 other port or place in the Uriited States, under pretence that the ship 
 Was proceeding on a voyage from Baltimore to the island of Antigua, 
 in the West Indies, but was obliged to put into the port of Halifax 
 in distress, when, in point of fact, the said schooner was not obliged to 
 put into the said port. That Charles Hall, the claimant, who de- 
 scribes himself as a British subject and merchant, belonging to Para- 
 maribo, in the British colony of Surinam, was not a British subject 
 residing at Paramaribo, nor was he the master or owner of the vessel; 
 that the vessel was not qualified, according to law, to trade to or from 
 a British colony, with all the privileges of a British ship ; and that Hall, 
 when he reported his vessel, refused to answer upon oath, such questions 
 as the collector and comptroller of the custonis were bound to demand 
 of him concerning the vessel and the goods laden on board ; that nei- 
 ther Hall, nor any other person, as the master of the schooner, from the 
 time of her arrival, on the 18th of June, until the seizure thereof, on 
 the 22d of June following, made any entry or report on oath concern- 
 ing the said vessel and her cargo. That Hall did not appear, 
 [ * 141 ] by *the certificate of the registry of the schooner, to be either 
 the master or owner, neither did it appear, by indorsement or 
 otherwise, who the true owners or master were ; that by the certificate 
 of the registry, which was granted at the custom-house at Halifax, May 
 
HIGH COURT OF ADMIRALTY. 142 
 
 The Eleanor. Edw. 
 
 21st, 1806, it appeared that Henry Taylor, of Halifax, was the sole 
 owner, and that James Elmslie was the master. That the said Henry 
 Taylor and James Elmslie, in the month of May preceding the seizure, 
 required the original registry of the vessd to be cancelled at the cus- 
 tom-house in Halifax, the said Henry Taylor being no longer owner 
 of the said vessel : that, to obtain the discharge of the said Henry 
 Taylor's bond, upon which the registry was made, the said James 
 Elmslie did deliver in a copy of a bill of sale, certified by William 
 Wood, Esq., his Majesty's vise-consul for the state of Maryland, 
 whereby it appeared that the said schooner Eleanor had been sold at 
 Baltimore, in the United States of America, for the sum of 600/. ster- 
 ling, to Charles Hall, then of Baltimore, since which time the schooner 
 Eleanor was no longer considered as a British vessel, on the registry 
 of the port of Halifax, but was a British vessel sold in a foreign port. 
 That, nevertheless, the said Charles Hall was trading from a foreign 
 poft to a British colony with the said vessel, and navigating her as' 
 a British ship, in the name of her former British owner and master, 
 thereby concealing the true ownership of the said vessel. That the 
 said vessel, at the time of seizure, was not pursuing a direct course, 
 as a British ship should do, to the port to which she belonged, or to 
 any other port in which she might be registered cle novo as a British 
 ship ; that the cargo laden on board was not destined to 
 such port, nor could it legally be carried on board *the said [ * 142 ] 
 vessel to any port in his Majesty's dominions, in which the 
 said vessel could be legally registered. That the said vessel was 
 engaged in trading from a foreign port to a British colony, as a Bri- 
 tish built vessel, entitled to all the privileges thereto belonging, when, , 
 in fact, she was not entitled to the privileges of a British ship, she 
 having received repairs in a foreign port, exceeding, in value, the sum 
 of fifteen shillings for every ton which t^e said schooner admeasures, 
 which repairs were so given and made to the said schooner, without 
 her having sustained any extraordinary damage, which made such 
 repairs necessary. That the cargo, being the growth, manufacture, 
 and produce of some foreign country, were imported on board the 
 said schooner into the port of Halifax, from Baltimore, or some other 
 port or place in the United States, the said schooner not being a Bri- 
 tish ship, and navigated according to law. That the conclusion of 
 the war in which his Majesty was engaged in the year 1794, having 
 been duly notified in the London Gazette, by order of his Majesty, 
 more than six months last past, yet the said schooner, at'the time of 
 the seizure thereof, was trading to a British colony, from a foreign 
 country, as a British ship, duly registered and entitled to the privi-_ 
 leges of a British built ship, when, in fact, she was not navigated by 
 
143 CASES DETERMINED .IN THE 
 
 The Eleanor, Edw. 
 
 a master, and three fourths, at least, of her mariners British subjects. 
 A claim was given by Mr. Hall for the ship and cargo, in which he 
 states, " that the schooner was engaged in a voyage from Baltimore 
 to the island of Antigtia, an'd put into* the port of Halifax in distress, 
 solely for the purpose of repair, and to procure a supply of water for 
 
 the crew, and not for any purposes of trade. That he is a 
 [ * 143 ] British subject, *and resides and carries on trade as a British 
 
 merchant, at Paramaribo, in Surinam. That in the month 
 of January last past, the schooner Eleanor was lying in the port of 
 Paramaribo, when this respondent made an agreement with the mas- 
 ter for the purchase of her for the sum of 6001. sterling. That the 
 respondent loaded the schooner on his own account, and proceeded 
 in her (the said James Blmslie still continuing master) to Baltimore, 
 in the United States, and on his arrival there he waited on the British 
 vice-consul, and informed him of the agreement for the sale of the 
 said schooner, and asked his advice as to perfecting the transfer ; that 
 the vice-consul informed them that he thought the certificate of regis- 
 try could not be indorsed there, as there was no British collector jof 
 the customs at that port, but advised the respondent to take a bill of 
 sale there, and that he would grant a certificate of the transfer from 
 one British subject to another, which might be attached to the copy 
 of the bill of sale, and that there would be no difficulty in procuring 
 an indorsement at the first British port to which the vessel should 
 proceed ; that respondent followed the said advice, and procured a 
 bill of sale from the said James Elmsfie, and obtained the said vice- 
 consul's certificate of the sale and transfer, and also his cettificate 
 that he was the master of the vessel, in the room of the said James 
 Emslie, the. vice-consul being of opinion, that the indorsement could 
 not be made on the certificate of registry in a foreign port. That on 
 the voyage made by the said schooner to Baltimore, in the months of 
 February and March last, she experienced very violent gales of wind, 
 
 which shattered and straii^ed the vessel, very much injured 
 r * ]^44 j her sails and rigging, * and rendered the boat quite useless ; 
 
 that the respondent was, therefore, obliged to expend a con- 
 siderable sum of money, in Baltimore, to repair the said vessel, and 
 render her seaworthy in her hull, sails, and rigging, and to purchase a 
 boat, the whole of which expense was caused by extraordinary damage 
 received in the storms the vessel had met with on her voyage to Bal- 
 timore. That at Baltimore he loaded the ship with the present cargo, 
 and cleared the said ship and cargo for the island of Antigua, and 
 procured the insurances thereon for his own account at Baltimore, 
 ^or the voyage from that port direct to Antigua. That in consequence 
 of the desertions of several of the crew of the said schooner, he was 
 
HIGH COURT OF ADMIEALTY. . 145 
 
 The Eleanor. Ec1\t. 
 
 obliged to hire five seamen at Baltimore, two of whom were Britis,h, 
 and the other three Americans, no more British seamen being to be 
 had at that port; that he sailed with the schooner, laden as aforesaid, 
 on the 15th dajrof May last, her crew then consisting of eight per- 
 sons, including himself as master, five of whom were British subjects. 
 That they proceeded towards Antigua as directly as the winds would 
 permit, but the wind being almost continually to the southward and 
 south-west, and often blowing violent, gales, they were kept from their 
 due course, and on the 4th of June they had proceeded no farther 
 south than to latitude 32 degrees ; that the wind still continuing to 
 blow from the south, and appearing to be fixed in that quarter, their 
 jib being shattered, the rigging a good deal injured, and their stock of 
 water being reduced to one hundred and forty gallons, and being in 
 the longitude of Halifax, the respondent consulted with the first and 
 second mate, and resolved to bear away for Halifax, to repair 
 and * procure a supply of water, and also to take advantage [ *145 ] 
 of a convoy, if any it should offer, for the West Indies. That ^ 
 
 they accordingly bore away for Halifax, and arrived in this port early 
 in the morning of the 18th of June last ; that having met the collector 
 of the customs iri the street, before the opening of the custom-house, 
 the respondent informed him of his arrival in distress, and afterwards, 
 on the same day, he reported his vessel and cargo at the custom- 
 house, and stated that his destination was to Antigua, whither he 
 should proceed as soon as his sails were repaired and his water casks 
 filled, and that he had no intention to land any part of his cargo in 
 this province. That he, at the same time delivered into the custom- 
 house the certificate of the vessel's registry, and the clearance from 
 Baltimore to Antigua. That having filled his water casks, and com- 
 pleted the repair of the sails and rigging, he, this respondent, on the 
 20th of June, ajpplied at the custom-house for his papers, that he 
 might proceed on his'voyage to Antigua, but was surprised by a 
 refusal of the collector to deliver them up, and who subsequently 
 informed him that he meant to detain the schooner. That the re- 
 spondent, by advice of council, applied at the custom-house on the 
 23d of June for the certificate of registry, for the purpose of making 
 a new bill of sale, and perfecting the transfer from Mr. Taylor to the 
 respondent, and on the same day he completed the bill of sale, and 
 indorsed the same on the certificate, and returned it to the custom- 
 house the following day, together with a manifest of the cargo of the 
 schooner. That the schooner was purchased by him for his 
 own account ; that he applied to the * British vice-consul at [ * 146 ] 
 Baltimore, for the purpose of making the transfer in due 
 
147 . CASES DETERMINED IN THE 
 
 The Eleanor. Edw. 
 
 form of law, and that he intended to apply for a register de novo of 
 the schooner at Antigua, in consequence of the information of the 
 said consul, and his own belief, that a register could be legally granted 
 there. That the voyage was hona fide from Baltimore to Antigua, 
 and that he should have gone directly thither had he not been pre- 
 vented by adverse winds and boisterous weather, and the want of 
 repairs and water. That he was never requested by the collector of 
 the customs to make oath as to his destination or cargo ; and that 
 he did not import the same into the said port of Halifax within the 
 true intent and meaning of the acts of parliament." To this answer 
 there is a replication by the seizor, iii which he charges, " that, as col- 
 lector of his Majesty's customs, when any British ship, owned and 
 registered in the port of Halifax, shall cease to belong to the person 
 in whose name it was originally registered, he is bound by law to 
 compel the parties to cancel the registry thereof, and to prevent such 
 vessel from trading any longer with the privileges of a British built 
 ship, until it is registered de novo ;" he then goes on to charge, "that 
 Hall refused to report his vessel according to law, and to answer any 
 question upon oath concerning his destination and cargo. That Hall 
 has not such a residence in or near Paramaribo, in Surinam, as would 
 have entitled him, as a British subject, to have registered the schooner 
 at Paramaribo. That the schooner, after being purchased by Hall at 
 Paramaribo, ought to have been registered by him de novo, if he had 
 a place of residence at or near the said port ; " he then denies 
 [ * 147 ] the necessity of the repairs done at Baltimore, * and avers, 
 "that the schooner was not driven into the port of Halifax 
 in distress ; and that, if the ship had arrived at Antigua, she could 
 not have been there registered as a British ship, and that the schooner 
 was engaged in a trade which it was not lawful for her to put- 
 sue." 
 
 The seizor then admits " that he did not detain the schooner for 
 some days, as he was unwilling to do so, until he had tried every 
 means in his power to induce the said Charles Hall to make a true 
 report on oath respecting the ship and cargo, and the destination." 
 
 The cause came on before the judge in the court below, who con- 
 demned the ship and cargo, and directed the proceeds to be distri- 
 buted according to the statute ; an appeal was made to this court, 
 and the seizor stands before the court to defend the sentence, the 
 crown having waived its interest. But nothing is to be inferred from 
 this act of the crown, so as in any degree to affect the real and 
 equitable merits of the case, when it comes to be judicially con- 
 .sidered ; because it is notorious that the crown is in the habit of prac- 
 
HIGH COURT OF ADMIEALTY. 148 
 
 The Eleanor. Edw. 
 
 tising great liberality, and if it errs at all it ought to err on that side 
 in cases of this nature. Any presumption which might be thought 
 to arise from such a circumstance, is, at least, balanced by the oVdi- 
 nary presumptions in favor of a sentence already obtained in a court 
 of justice. 
 
 The statutes upon which the proceedings in this case are founded, 
 compose in a great degree the navigation law of this country. Their 
 utility has been universally felt and acknowledged, and 
 courts of justice, * in the sentences they have given, have [ * 148 ] 
 shown a disposition to support them with great exactness. 
 I will not say that the court would not step in for the protection of 
 persons erring innocently, and in point of immaterial form only ; but 
 it is not to be said that many of the provisionPof these statutes are 
 mere forms, though formal in their own requisitions. The forms they 
 enjoin to be observed are necessary for the protection of the principles 
 of law intended to be maintained ; they are in this case the substan- 
 tial securities of the rights of the country in matters of navigation, 
 and it is, therefore, the duty of all courts to see that these forms are 
 properly observed. I will just notice some of the general provisions 
 of one or two of these statutes, before I enter further into the con- 
 sideration of the case itself. By 26 Geo. III. c. 60, s. 8, " fio sub- 
 ject of his Majesty, his heirs and successors, whose usual residence is 
 in any country not under the dominion of his Majesty, his heirs and 
 successors, shall be deemed or entitled during the time he shall so 
 continue to reside, to be the owner in whole or in part of any British 
 ship or vessel, required and authorized to be registered by virtue of 
 this act, unless he be a member of some British factory, or agent or 
 partner in any house or copartnership actually carrying on trade in 
 Great Britain or Ireland." No person, therefore, is entitled to the 
 exclusive benefit, who has not his usual residence in Great Britain or 
 in the dominions belonging to the crovi^n ; if he goes to another 
 country, and there has a more usual residence than in this, he is no 
 longer entitled to the same privilege. A person who is continually 
 shifting his residence, so as not to have what under any ex- 
 tension, can be deemed an usual residence here, does not [ * 149 ] 
 come within this description of the statute. He must be, 
 unless in the cases which are specified, usually resident in this 
 country ; and the same statute not only requires that the owner shall 
 be usually resident in this country, but that the ship shall be of the 
 manufacture of British artificers, and that all repairs shall be done in 
 British ports, except to a very limited extent, and under very peculiar 
 circumstances. Another object of the statute is, that there shall be 
 a clear constat of the real ownership, and, therefore, if any transfer of 
 
150 CASES DETEKMINED IN THE 
 
 The Eleanor. Edw. 
 
 the property takes place, it must be declared, and the transfer in- 
 dorsed on the ' register. The three great provisions of this act are, 
 therefore, first, that the party should have such a residence in the 
 British dominions, as would entitle him to a British register; he 
 must not be a person coming occasionally, and for the purpose of 
 obtaining a colorable qualification. Secondly, that the ship shall be 
 not only constructed but repaired in the British 'dominions ; and, 
 thirdly, that upon any change of the property taking place, it shall 
 be made to appear who is the present owner. The first qualification, 
 therefore, is, that it shall be shown that the party has such a resi- 
 dence in the British dominions as would entitle him to a register. 
 This is one of the fundamental facts of the case, and accordingly we 
 find that it is put diirotly in issue between the parties in the pleas 
 which have been given in on both sides. On the part of the seizor 
 it is asserted that, " the said Charles Hall is not a British born sub- 
 ject, entitled to trade with the privileges of a British merchant and 
 owner of a British ship ; for, that the said Charles Hall hath no fixed 
 domicil, or place of abode, in any parts of the British dominions, 
 but is an itinerant merchant sojourning in different parts 
 [ *150 ] *of the United States." On the other hand, it is stated in 
 , the claim, " that Hall is a British born subject, and that he 
 resides and carries on trade as a British merchant at Paramaribo, 
 in Surinam, where two persons are now employed by him to conduct 
 his business during his absence." Now, as the burden of proof is 
 thrown upon the claimant by the statute, what is the. evidence fur- 
 nished by Mr. Hall upon this point ? The first person examined is 
 Elmslie, who sold him the vessel at Paramaribo ; all that he states is, 
 " that he has known Hall only from the time he saw him in Surinam, 
 (that is from the time of sale,) he is a merchant, deponent believes 
 his fixed place of abode is Surinam; he is a single man, and depo- 
 nent does not know of his teing connected as a partner in any house 
 of trade whatever." All, therefore, that this person knows of him is 
 limited to the short period of his own residence at Surinam, and he 
 knows nothing of his antecedejit history. There is another witness 
 of the name of Black, who says that " he has known Hall since 
 November or December, 1805 ; (this witness being examined in 
 1807) he understood that he resided at Surinam, and has reason to 
 believe him to be a British subject from his having had transactions 
 in Canada, and being recommended by their correspondents, Lester 
 and Monough, merchants. in Quebec, and from his communications 
 with him, he has no doubt, in his own mind, that he is a British sub- 
 ject." Davis, the mate, says, " that he has known Hall since the 
 21st day of last November ; that he then lived in Surinam, he con- 
 
HIGH COURT OF ADMIRALTY. 151 
 
 The Eleanor. Edw. 
 
 ' • ■ 
 
 sidered that place to be his home, it is the first place he knew him in : 
 deponent believes him to be a British subject." The next wit- 
 ness is Caleb Smith, who says, " that he has known 
 * Charles Hall from the day he shipped under his com- [ * 151 ] 
 mand in Baltimore, which he states to have been on the 
 13th of May ; that he has heard that he resides at Surinam, and 
 deponent believes him to be a British subject." This man's know- 
 ledge goes a very little way towards establishing the fact. The 
 last witnest is Watts, who " entered on board the vessel at Balti- 
 more, on the 1st of May, since which time he says he has known 
 Hall ; he does not know his place of residence, but has heard and 
 believes him to be a British subject." This is the whole substance 
 of the evidence which is furnished hy Mr. Hall, to show that he had 
 a fixed residence at Paramaribo ; no part of which carries the 
 account of this residence further back than to the short date of the 
 time of purchasing this vessel. How long he had been at Parama- 
 ribo or in what manner settled, or whether there accidentally or occa- 
 sionally, none of these witnesses profess to have any knowledge. 
 It is true that there might be a difficulty in finding persons at Hali- 
 fax, who could explain more particularly what the nature of his resi- 
 dence at Surinam was ; though from what Elmslie says in his depo- 
 sitions, "that Hall, being disgusted with the officers of the customs 
 at Surinam, said to him that he would let the vessel stand as the 
 property oT Mr. Taylor, and trust to his honor to ratify the bargain, 
 as he would not take any advantage of him," it looks as if there had 
 been a previous acquaintance with Mr. Taylor, and, as he was upon 
 the spot, he might have been examined in support of the statement. 
 The facts of the case, connected with the history of the transfer of 
 the vessel, are these. The ship was purchased at Surinam, by Hall, 
 who entered into a written agreement with Elmslie, the 
 master, for the * sale of the vessel for 600^., the payment to[ * 152 ] 
 be made in sugars, which Elmslie actually received and 
 sent to London, on account of his owner, Taylor. Hall states in his 
 claim " that, having entered into this agreement, he loaded the 
 schooner on his own account, and proceeded in her (the said James 
 Elmslie still continuing master) to Baltimore." I find this a little 
 difficult to reconcile, in point of fact, with what is stated by Davis, 
 the mate, who says " that Hall loaded the ship, and sent her under 
 the command of Elmslie, with a consignment to a Mr. Thompson, 
 in Baltimore, and that Hall himself arrived at that port in another 
 vessel." Hall's account, therefore, cannot be true, if what is sworn 
 by Davis, the mate, is worthy of credit. The ship gets, however, to 
 Baltimore, and we find Mr. Hall soon after at Norfolk, in Virginia. 
 
 EDW. lb 
 
153 CASES DETERMINED IN THE 
 
 The Eleanor. Edw. 
 
 ■ _ — . , 
 
 It is to be observed,, also, that the crew were shipped at Baltimore, 
 according to Davis, who says that " there were articles signed by all 
 hands, for a voyage from thence to Antigud. and back again to any 
 port in America." Nothing, therefore, can be less satisfactory than 
 this evidence, as tending in any manner to show Mr. Hall's connec- 
 tion with Surinam. Immediately on the purchase he goes away to 
 Baltimore, he is found at Norfolk, and he is to proceed, according to 
 his own account, to Antigua, without an intention, as far as appears, of 
 returning to Surinam, but to some port in America ; aipi this fact 
 becomes the more material, as it bears upon another circumstance to 
 which I am going to advert, namely, the transfer of this vessel at 
 Paramaribo. As soon as the transfer was made, it was the duty 
 of Mr. Hall to have the vessel registered at that place, where, 
 according to his own account, he has a fixed place of abode. 
 
 This is one of the great objects of the statute, because 
 [ * 153 ] * at the place where the party is resident it can be most 
 
 easily ascertained whether he is entitled to a register or not. 
 To say that a register might be as well obtained at a distant port, 
 would be to enervate and set at nought the obvious provisions of the 
 legislature for the proper registration of vessels ; for how are persons 
 at the custom-house at Antigua to know whether the averment of a 
 residence at Surinam is true or not ? But if it should, from any 
 peculiar circumstances, happen that that duty is not complied with, 
 there is a second, which becomes indispensable, namely, that the 
 party should account in a satisfactory manner for the omission. 
 Now I have looked into the claim of Mr. Hall throughout, for some 
 explanation upon this point, but it is a subject on which he observes 
 a total silence ; he does not seem to feel the necessity of accounting 
 for it ia any manner. Different solutions have, however, been 
 attempted. There is only one by Elmslie, who says that Mr. Hall 
 was disgusted with the custom-house officers at Paramaribo, and 
 therefore determined to let the vessel stand as the property of her 
 former owner, Taylor, till he got to America. ^What ! is a party to 
 be heard to say that, because he does not like the persons who are 
 appointed to adniinister the law, he is at liberty to violate it, and to 
 carry his ship away without a register, not merely to another port, 
 but to a port of another country ? This is an excuse which cannot 
 be reasonably alleged, and the gentlemen in argument have found it 
 necessary to desert it. Another suggestion is, that the persons at the 
 custom-house at Surinam might not be acquainted with the neces- 
 sary forms of the English law. But when everybody knows what 
 
 the extent of commercial business is at Surinam, and parti- 
 [ * 154 ] cularly what the number is of British proprietors, * how can 
 
R^ 
 
 HIGH COUR^ OF ADMIRALTY. 155 
 
 -^ 
 
 The Eleanor. Edw. 
 
 we suppose that proper persons are not appointed to the func- 
 tions of the custom-house ? These solutions, therefore, entirely 
 fail ; but there is another connected with the policy of the statutes, 
 tending to clear up the mystery, which is," that probably Mr. Hall 
 was conscious that his claim to th% character of a British merchant 
 could not be received at the custom-house at Surinam, where he was 
 known. In this solution one sees, indeed, a very sufficient reason 
 why he should make his application anywhere but at that port, and 
 why he had recourse to a foreign port. It is said, however, that the 
 purchase was not made in Surinam, but in America. Now that is 
 not very consistent with the averment in the claim, that Hall pur- 
 chased the vessel at Paramaribo, and it is clear that he had paid for 
 the vessel there in sugars. Whether there was a formal bill of sale 
 does not directly appear, as the instrument passed at Surinam has 
 not been exhibited ; yet I cannot but think that there was, when I 
 look at the evidence of Davis, the mate — for what is the manner in 
 which he speaks of it ? He says, that " he does know of orders and 
 instructions being given by Mr. Taylor, the former owner, to Elmslie, 
 for the sale of the vessel, in the voyage on which he sailed from 
 Halifax, as he saw and read them in Surinam harbor, and that the 
 ship was accordingly sold at Surinam, on the 25th of November last, 
 and he saw a written agreement, or deed of sale, between Elmslie 
 and Hall, the purport of which was, that Elmslie sold the vessel for 
 600/., to be paid in sugars, and which were actually delivered to 
 Elmslie, and Mr. Hall there took possession of the vessel, but conti- 
 nued Elmslie in the command ; that he has looked at the paper writ- 
 ing marked A, now shown to him; he cannot undertake to 
 * swear positively that it is a true copy of the original bill [*155 ] 
 of sale of the vessel, as it appears more full and particular, 
 but he, is clear and positive that it is the, same in substance and 
 meaning, in every respect." Elmslie's account considerably tends to 
 confirm this statement. He says, "that Mr. Taylor gave him written 
 instructions to dispose of the vessel in Surinam, and, in consequence 
 of the said instructions, he sold the vessel to Mr. Hall ; the bargain 
 was made in Surinam ; the terms of the bargain were, that he sold 
 the said vessel to Hall, on condition that he was to pay 600/. sterling 
 for her in sugars, which sugars said Hall actually delivered, and he 
 remitted them to London, on account of Mr. Taylor. There was a 
 bill of sale of the vessel, which deponent signed and executed before 
 the British consul, at Baltimore, of which he believes the paper 
 marked A to be a true copy ; that he managed the concerns of the 
 vessel until the time he sold her to Mr. Hall, in Surinam ; and from 
 that time until he quitted her at Baltimore he acted as ship's hus- 
 
156 CASES DETERMINED IN THE 
 
 The Eleanor. Edw. 
 
 band, or master, and Mr. Hall was the owner, and deponent followed 
 his directions and orders, with regard to her concerns, as long as he 
 remained in her." In his answer to the second interrogatory, he also 
 says, " that the agreement, specifying the bargain, was in writing ; 
 Mr. Hall had one copy of it, anfl the deponent the other. That Mr. 
 Hall had a right to do what he pleased with the vessel after paying 
 for her, and that Taylor was bound to ratify the bargain, if neces- 
 sary ; that Mr. Hall became the fair owner from the day he paid for 
 her, in Surinam ; and deponent is clear whatever profits the vessel 
 may have made since the time Mr. Hall bought her must 
 [ * 156 ] be his." *Why, then, here was a complete transfer, a com- 
 plete possession and delivery ; and yet Mr, Hall would not 
 comply with the regulations of the statute, by getting a register at 
 the place where he was known, but sails to America, to get a certifi- 
 cate of the transfer from the British vice-consul. I say that this fact 
 can leave little doubt that Mr. Hall is a person not so domiciled as 
 to be entitled to a British register at Paramaribo, upon any evidence 
 which it was in his power to produce ; and that he was himself con- 
 scious that, if he had made his application at the custom-house at' 
 that place, it must have been rejected. It is not consistent "with Mr. 
 Hall's own description of himself, as a British merchant and ship- 
 owner, to suppose that he was so entirely unacquainted with the 
 laws of the country to which he lays claims, as not to Ijnow that the 
 registry was to be made at the port to which the ship belongs ; and, 
 therefore, if he has not complied with the provisions of the statute, 
 it is not too much to presume that it was for reasons which he has 
 not thought proper to assign. Here, indeed, every thing necessary to 
 constitute a transfer was actually done. But supposing the agree- 
 ment to have been merely prospective, is it not clear that |t was put 
 into that form for the very purpose of evading the statute, .and to 
 furnish a colorable ground for the transactions in America ? Mr. 
 Hall, however, goes to Baltimore in this vessel, as he swears, but, as 
 the mate swears, in another vessel ; and it is worthy of remark that, 
 according to the evidence of this same person, Davis, the mate, the 
 ship is consigned, not to himself, but to a Mr. Thompson, at Balti- 
 more, who, upon her arrival there, furnishes the necessary 
 [ * 157 ] stores and repairs, as owner and ship's husband. * When 
 the ship gets to Baltimore, the next provision of the act is 
 set at nojight, which limits the repairs perinitted to be done in a 
 foreign port to fifteen shillings per ton. It is said that the repairs 
 were inconsiderable ; but that is contradicted by Hall himself, who 
 states that " he was. obliged to expend a considerable sum at Balti- 
 more, to repair the vessel, in order to render her seaworthy." Elms- 
 
HIGH COURT OF ADMIRALTY. 158 
 
 The Eleanor. Edw. 
 
 lie says that, "at the time of his leaving Baltimore, the Vessel was 
 hauled into a place to get repairs, which she much wanted ; and 
 Davis says, he supposes the repairs would not altogether exceed the 
 sum of 150Z." Now this is a vessel of only seventy tons, so that 
 here is a considerable excess of the sum allowed by the statute ; and 
 the consequence is, that the ship must be considered as an alien 
 ship. Any excess in the amount of the repairs is a matter which 
 the statute watches with the utmost anxiety ; it prescribes a very 
 long process of inquiry in the foreign port, to be executed in a parti- 
 cular manner, and regularly certified ; and if these regulations were 
 not observed, the obvious practice would be, to purchase ships and 
 * carry them to foreign countries, where they might be repaired at a 
 cheaper rate, to the disadvantage of the manufacturers and ship- 
 wrights of this country, whom it is one principal object of the statute 
 to protect. Not one of these requisites obtain the least attention on 
 the part of Mr. Hall. He repairs his vessel to any extent he thinks 
 fit, without the least regard to the modes prescribed by the statute. 
 Great credit seems to be taken by Hall, on account of his applica- 
 tion to the British vice-consul at Baltimore. He says that, " on his 
 arrival there, the respondent and the said James Elmslie waited on 
 the British vice-consul, and informed him of the agreement 
 for the sale of *the schooner, and asked his advice as to [*158 ] 
 perfecting the sale and conveyancing thereof ; that the said 
 vice-consul informed them that he thought the certificate of registry 
 could not be indorsed at Baltimore, there being no British collector 
 of the customs at that port, but advised the respondent to take a bill 
 of sale there, and that he would grant a certificate of the transfer 
 from one British subject to another, which might be attached to the 
 copy of the bill of sale, and that there would be no difficulty to get 
 the register indorsed at the first British port to which the vessel 
 should proceed." Now it does not appear that the vice-consul was 
 made acquainted with all the preliminary steps of this transaction ; 
 because I think it quite impossible if he had been told that Mr. Hall 
 was a settler at Paramaribo, and that the sale had been transacted 
 there, that he would have given this advice. He would have said — 
 Do you get back to Paramaribo as fast as you can ; you have not 
 complied with the requisitions of the statute. But supposing the 
 vice-consul to be unacquainted with the law, and to have given this 
 advice ignorantly, would that have the effect of justifying Mr. Hall ? 
 Who is a British vice-consul in a foreign port? He is usually a 
 merchant of the country in which he resides ; and is a British ship- 
 owner, who is bound to know the law under which he purchases in 
 his own country, to apply to a consul in another country for the 
 10* 
 
159 CASES DETERMINED IN THE 
 
 The Eleanor. Edw. 
 
 exposition ^of that law with which he ought himself to be acquainted? 
 I say, supposing he had given this advice, which is scarcely credible 
 if all the circumstances of the transaction had been stated to him, 
 it would in no degree have sanctioned the conduct of Mr. Hall. I 
 
 must observe that I do not accede to the remark which 
 [ * 159 ] * was made in the argument, that this is matter of mere 
 
 pecuniary penalty; because, by the express directions of the 
 statute, the ship under such irregularities is to be considered as an 
 alien ship, unprotected by a British register. 
 
 Now these facts become extremely important, as they go to develop 
 the real nature of this transaction ; if you find a man complying 
 with the regulations of his country in the first commencement, it " 
 leads to a very natural presumption that the same fair and honorable 
 conduct has accompanied the transaction throughout, and that if he 
 has erred in any subsequent part, he has erred from honest ignorance 
 and inadvertency. But if the fact be that in the very outset he has 
 departed from the obligations imposed on him by the laws of his 
 country, it goes far towards determining the interpretation which is 
 to be put upon his conduct, as it appears in other parts of the trans- 
 action ; in such a case the rule of qiialis ab incepto is not unreason- 
 ably applied. I come now to consider that which is the actual, 
 though by no means the only ground upon which this sentence is 
 directly to be sustained, and which has been softly described by the 
 counsel for the claimant as a matter of great imprudence : I mean 
 the entrance of the vessel into the port of Halifax. It has been said, 
 that even upon the supposition that this is to be taken as an alien 
 ship, yet whatever may have been the imprudences of conduct on 
 the part of the owner, she would be entitled to the rights of hospi- 
 tality if driven into a British port in distress ; and certainly if the 
 distress were real, whether Hall is a British subject or not, and what- 
 ever maybe the character attaching to the ship, she would be entitled 
 
 to that benefit. Real and irresistible distress must be at 
 [ * 160 ] all times a sufficient passport for human * beings under any 
 
 such application of human laws. But if a party is a false 
 mendicant, if he brings into a port a ship or cargo under a pretence 
 which does not exist, the holding out of such a false cause fixes him 
 with a fraudulent purpose. If he did not come, in for the only pur- 
 pose which the law tolerates, he has really come in for one which it 
 prohibits, that of carrying on an interdicted commerce in whole or in 
 part. It is, I presume, an universal rule, that the mere act of coming 
 into port, though without breaking bulk, is primd fade evidence of 
 an importation. At the same time, this presumption may be re- 
 butted ; but it lies on the party to assign the other cause, and if the 
 
HIGH COURT OF ADMIRALTY. 161 
 
 The Eleanor. Edw. 
 
 cause assigned turns out to be false, the first presumption necessarily 
 takes place, and the fraudulent importation is fastened down upon 
 him. The court put the question to the counsel, whether it was 
 meant to be argued that the bringing a cargo into an interdicted port, 
 under a false pretence, was not a fraudulent importation, and it has 
 not been denied that it is so to be considered. Then there is another 
 excuse which has not indeed been pressed upon the consideration of 
 the court, yet it has been glanced at, which is, that the vessel did not 
 come actually into the port, but only into the anchorage stream. 
 But this very description shows that it is a place where vessels 
 coming to the port cast anchor ; and it has been decided over and 
 over again, that in order to constitute an importation it is not neces- 
 sary that vessels should come to a wharf. Besides, Mr. Hall alleges 
 in his claim " that he arrived in the port of Halifax on the J8th June 
 last, and having met the collector of the customs, he informed him 
 of his having arrived in distress, and on the same day he 
 reported his vessel and cargo at the custom-house." * Upon [ * 161 ] 
 the fact of importation, therefore, there can be no doubt; 
 and consequently the great point to which the case is reduced, is the 
 distress which is alleged to have occasioned it. Now it must be an 
 urgent distress ; it must be something of grave necessity ; such as is 
 spoken of in our books, where a ship is said to be driven in by stress 
 of weather. It is not sufficient to say it was done to avoid a little 
 bad weather, or in consequence of foul winds ; the danger must be 
 such asVto cause apprehension in the mind of an honest and firm 
 man. I do not mean to say that there must be an actual physical 
 necessity existing at the moment; a moral necessity would justify 
 the act, where, for instance, the ship had sustained previous damage, 
 so as to render it dangerous to the lives of the persons on board to 
 prosecute the voyage. Such a case, though there might be no exist- 
 ing storm, would be viewed with tenderness ; but there must be at 
 least a moral necessity. Then, again, where the party justifies the 
 act upon the plea of distress, it must not be a distress which he has 
 created himself, by putting on board an insufficient quantity of water 
 or of provisions for such a voyage, for there the distress is only a part 
 of the mechanism of the fraud, and cannot be set up in excuse for it ; 
 and in the, next place the distress must be proved by the claimant in 
 a clear and satisfactory manner. It is evidence which comes from 
 himself, and from persons subject to his power, and probably involved 
 in the fraud, if any fraud there be, and, therefore, it is liable to be 
 rigidly examined. Having premised these rules and observations, 
 let us see how the case stands upon the showing of Mr. Hall. 
 He says "that he sailed in the schooner from Baltimore, on the 
 
162 CASES DETERMINED IN THE 
 
 The Eleanor. Edw. 
 
 • — 
 
 [ * 162 ] 15th day of May last ; that'they proceeded * towards Anti- 
 gua as directly as the winds would permit, but the wind 
 being almost continually to the southward and south-west, and often 
 blowing violent gales, they were kept from their due course, and on 
 the 4th day of June they had proceeded no further south than lati- 
 tude 32 degrees ; that the wind still continuing to blow from the 
 south, and appearing to be fixed in that quarter, their jib being shat- 
 tered, the rigging a good deal injured, and their stock of water being 
 reduced to 140 gallons, and being in the longitude of Halifax, he 
 consulted with the first and second mate, and resolved to bear away 
 for Halifax to repair and procure a supply of water, and also to take 
 advantage of a convoy, if any should offer, for the West Indies." In 
 the first place, in the very setting off", there is not that hpna fides 
 which might have been expected; he says that the voyage began on 
 the 15th of May, the fact being, that Hall himself did not come on 
 board until the 20th. Watts says, that " she had been making 
 the best of her way for Antigua, according as wind and weather 
 would permit, from the time they left the capes of Virginia, (which 
 it appears was on the 21st,) until they bore away for Halifax ; " he 
 does not say from the time she left Baltimore, and it is clear that she 
 had merely dropped down into the Chesapeake, and that Mr. Hall 
 was in the iriean time up at Norfolk transacting business, for so the 
 log-book exactly expresses. The first entry is dated the 20th of May, 
 1807. It says, "these twenty -four hours begin with light breezes 
 from the N. W. and clear weather, middle and latter part of ditto ; 
 at three, P. M., Mr. Hall returned on board from Norfolk, weighed 
 anchor, and stood down for the capes ; people employed on 
 
 [ * 163 ] bending cables and stowing anchors ' and boats, and sundry 
 jobs of ship's duty; so end these twenty-four hours. — 
 Thursday, 21st May. These twenty-four hours with light winds and 
 clear weather ; Cape Henry light-house bearing N. W. by W. four 
 miles, lying in the latitude 36° 57' long. 76° 4' W., from which I 
 take my departure for Antigua, lying in the lat. 17° 3' and long. 
 61° 45' W., so God send the good schooner to her destined port in 
 safety. Amen." A clearer account of the commencement of a voy- 
 age could not have been given, and therefore Mr. Hall has not repre- 
 sented the matter very ingenuously, when he antedated his voyage 
 from the 15th May. It could not have been that the ship was pre- 
 viously struggling with bad weather, because if that had been, the 
 case he would have got her repaired before he left the Chesapeake, 
 and therefore it is impossible to take his representation as a fair 
 account of the duration of the voyage and of the danger. I must 
 observe, that the evidence of the log-book is to be received with jea- 
 
HIGH COURT OF ADMIRALTY. 164 
 
 The Eleanor. Edw. 
 
 lousy, where it makes for the parties, as it may have beeli maimfac- 
 tured for the purpose ; but it is evidence of the most authentic kind 
 against the parties, because they cannot be supposed to have given a 
 false representation with a view to prejudice themselves. The wit- 
 nesses, when they speak to a fact, may perhaps be aware, that it has 
 become a poinx of consequence, and may qualify their account of 
 past events so as to give a colorable effect to it. But the journal is 
 written beforehand, and by persons unacquainted, perhaps, with any 
 intention of fraud, and may therefore be securely relied on wherever 
 it speaks to the prejudice of its authors. In this case the importance 
 of the journal is the more striking, because the witnesses refer to it 
 in support of their own opinions, and in default of their own memory, 
 as that from which the court is to collect the facts in a more 
 accurate and authentic manner. * But what say these wit- [ * 164 ] 
 nesses ? The first of them is Watts. His account is, " that 
 he believes Mr. Hall to be the owner of her present cargo, which 
 camei out of different stores at Baltimore, but whose he does not 
 know, as he remained on board to receive it into the vessel. That 
 the fifth or sixth day after they were at sea, they experienced heavy 
 gales of head wind, which split her jibs and carried away all her 
 braces, fore and aft, and falling short of water, and the vessel's stores 
 falling short. Captain Hall told the crew he thought it best to make 
 some port to get repairs, sails, rigging, water, and some stores ; at 
 this time the crew and the deponent being worn down with fatigue, 
 so that scarcely a man was able to do his duty, they all cheerfully 
 assented to, and approved of the measure. That Captain Hall then 
 said he would bear away for Halifax, which he did, and arrived there 
 about the 24th of last month ; and on the second day after her arrival 
 at this port, she took in a fresh supply of water, but did not take on 
 board any other article besides the water while he was on board her, 
 which was till the 25th of June. That Davis kept Mr. Hall's watch, 
 and the log-book is headed in his name, and he is there described as 
 Captain Davis. That the ship's articles were for a voyage to Antigua 
 and back to the states, or if discharged in any other port they were 
 to be paid a month's wages and sent home ; " he also says, " that he 
 thinks they might have pursued the voyage instead of bearing up for 
 Halifax, but he declares by the oath he has taken, it would have been 
 at the risk of the lives of the crew, as, the rigging being carried away 
 in the gale, and the jib-slay gone, the vessel lay at the mercy of the 
 sea." But when this same witness is examined again upon the plea 
 given by Hall, " he refers to the log-book for the winds and 
 weather the vessel experienced *on the voyage from Balti- [ *165 ] 
 more, where he has truly noted them down, and his memory 
 
166 CASES DETERMINED IN THE 
 
 The Eleanor. Edw. 
 
 does not sefve him ; " as if after having described all these particulars 
 in his former evidence, his memory would not serve him a few days 
 after. The next witness is Caleb Smith, who was taken up at Balti- 
 more, and gives the same description of the voyage. 
 
 Davis, the mate, says, "that the reason why the vessel did not 
 proceed on her voyage to Antigua was, meeting witn heavy gales of 
 wind, sails much torn, running rigging and jib-stay gone, and water 
 running short. She experienced a good deal of bad weather and 
 head winds continually. She was in the latitude 32° 32' when she 
 shaped her course for Nova Scotia, the wind at that time right 
 ahead, blowing pretty fresh from the southward ; the jib split, jib-stay, 
 and he thinks a shroud gone. The log-book will state the circum- 
 stances, as he does not exactly remember whether it was before or 
 after they bore away, that they carried away her jib." This person 
 then ascribes the deviation, principally, to an accident, of which he 
 does not know whether it took place before or after that event. Now 
 I come to refer to the log-book itself; it consists of not many arti- 
 cles, and I put it to any man to say, upon the fair consideration of 
 its contents, whether it does not prove it to be quite impossible that 
 this ship carae into Halifax under any thing like stress of weather. 
 The entry on the 21st May, which I have before noticed, concludes 
 in these terms, " middle part light brfeezes from the east ; at three A. 
 M. tacked ship, took in the top-sails ; at five tacked ship, saw a forty- 
 four gun ship to leeward standing to the westward, took her to be 
 English; latter part, light winds from the S. S. W. ; all hands em- 
 ployed in ship's duty ; so end these twenty-four hours. 
 [ * 166 ] Friday, 22d of May. * These twenty-four hours begin with 
 strong bjeezes from the S. W. and clear weather ; middle 
 art ditto ; at four A. M. in main top-sail, reefed the fore top-sail, and 
 e main top-sail ; at six P. M. handed to fore top-sail in the second 
 reef in main-sail ; latter part, heavy gales from S. S. W., stood the 
 jib and mainsail, hove to under a double reefed fore-sail, people em- 
 ployed in making nettings ; so end these twenty-four hours. Satur- 
 day, 23d of May. These twenty-four hours begin with _heavy gales 
 from the S. S. W. and thick weather, with light showers of rain, 
 lying to under a double-reefed fore-sail, a heavy sea running from the 
 S. W. ; at six A. M. made sail-jib, main-sail and reft fore top-sail ; 
 ktter part more moderate ; out of reef, out of top-sail and main-sail ; 
 people employed in fitting new slings to the main yard ; so end these 
 twenty-four hours. Sunday, 24. These twenty-four hours begin 
 with stiff gales from the S. W. and hazy weather ; middle part ditto ; 
 at twelve, in main top-sail ; at six, P. M. saw a large ship to leeward, 
 standing to the N. N. W. ; at eight took in the fore top-sail ; latter 
 
 S 
 
HIGH COURT OF ADMIRALTY. 167 
 
 The Eleanor. Edw. 
 
 part hard gales and cloudy weather ; it being Sunday, no work done ; 
 so end these twenty-four hours. Monday, 25. These twenty-four 
 hours begin with hard gales from S. S. W. and thick weather, with 
 showers of rain ; middle part, heavy gales ; handed the main-sail and 
 jib, reefed the fore-sail ; latter part, moderate and clear weather ; at 
 six P. M. all sails set, with a pleasant breeze ; people employed in 
 sundry jobs of ship's duty ; so end these twenty-four hours. Tues- 
 day, 26. These twenty-four hours begin with light winds and clear 
 weather from the N. W., all sail set ; at four, A. M. saw a schooner 
 standing to the S. W. with American colors flying ; middle part, 
 fresh breezes and clear weather ; latter part, more moderate, 
 hands employed on sundry jobs of ship's * duty ; so end [ * 167 ] 
 these twenty-four hours. Wednesday, May 27. These 
 twenty-four hours begin with light winds and variable ; middle part 
 ditto ; latter part, stiff breezes from the S. W. and cloudy weather ; 
 at two, A. M. caught a shark ; at six saw a small schooner to lee- 
 ward, standing upon a wind to S. S. E., took her for a privateer ; 
 people employed in scraping the quarter deck ; so end these twenty- 
 four hours. Thursday, May 28. These twenty-four hours begin 
 with hard gales from the S. S. W., all sail set to the best advantage ; 
 at four, A. M., in main top-sail, reefed main-sail and fore top-sail ; 
 middle part ditto ; at ten, in fore top-sail and flying jib ; latter .part 
 ditto, with thick foggy weather ; people employed as usual; so end 
 these twenty-four hours. Friday, May 29. These twenty-four hours 
 begin with stiff gales and smoky weather from the S. S. W. ; mid- 
 dle part ditto ; latter part, heavy squalls of rain and thick cloudy 
 weather, wind from the S. S. W. to W. ; people employed in plait- 
 ing sennit ; so end these twenty-four hours. Saturday, 30. These 
 twenty -four hours begin with hard gales and heavy squalls from W. 
 S. W., with rain ; middle part moderate, with constant fall of rain ; 
 latter part, light winds from the S. S. W., with thick rainy weather ; 
 at six, A. M., saw a schooner standing to the S. W. ; at twelve, spoke 
 with her ; from Philadelphia, bound to Porto Rico, out nine days ; 
 all hands employed in sundry jobs of ship's duty. Sunday, 31, 
 These twenty-four hours begin with light airs, almost^lm ; tacked 
 ship lying up, E. S. E. ; these twenty-four hours em with light 
 winds and hazy weather; this day being Sabbath, no work done. 
 Monday, June 1. These twenty-four hours begin with light winds and 
 smoky weather; middIepartditto,with stiff" breezes and cloudy weather; 
 at six, P. M., handed the main top-sail ; latter part ditto, with 
 * thick smoky weather; at eight, A. M., saw a fore top-sail [*168] 
 ■schooner to leeward, standing to the E. S. E. ; these twenty- 
 four hours light winds and smoky weather ; hands employed on 
 
169 CASES DETERMINED IN THE 
 
 The Eleanor. Edw. 
 
 ship's duty. Tuesday, June 2. These twenty-four hours light winds 
 with thick hazy weather ; at six, P. M., saw a schooner to windward, 
 standing to the N. N. W. ; middle part ditto ; latter part, light winds 
 and thick weather ; so end these twenty-four hours ; people employed 
 in plaiting sennat and sundry jobs of- ship's duty. Wednesday, 
 June 3. These twenty-four hours begin with light winds and thick 
 smoky weather ; at six, P. M., tacked ship, lying up S. W. by W. ; mid- 
 dle and latter part, strong breezes and smoky weather ; the hands em- 
 ployed in scraping the quarter deck ; these twenty-four hours end 
 with- strong breezes and smoaky weather. Tuesday, June 4. These 
 twenty-four hours begin with fresh breezes and clear weather ; at 
 four, P. M. split the jib, reefed it, and set it again, reefed fore-top- 
 sail ; middle part ditto, and cloudy weather ; latter part ditto, with 
 light showers of rain ; these twenty-four hours end with fresh breezes ; 
 hands employed in plaiting robins. Friday, June 5. These twenty^ 
 four hours begin with strong breezes and thick weather, with rain ; 
 middle part ditto, the wind being so constant ahead, and the owner, 
 being on board, thought proper to order us to Halifax ; latter part 
 ditto ; at ten, A. M., saw a large ship to the N. W., took her to be a 
 line of battle ship ; these twenty-four hours end with strong breezes ; 
 hands employed on ship's duty." 
 
 N#w is it possible to read this, and extract the conclusion, that the 
 weather was the cause of Hall's determination to go to Halifax ; all 
 the latter days of the voyage in no degree menacing ; and no one 
 reason assigned in this journal for the change of course but the 
 wind being ahead and the owner on board. What does 
 [ * 169 ] * the ship do when she gets to Halifax ? What must have 
 been her condition, if there were any truth in this account 
 of distress, certainly a condition requiring long and considerable re- 
 pairs. Mr. Hall says, that he arrived at Halifax on the 18th of June, 
 and on the 20th he applied at the custom-house for his papers, that 
 he might proceed on his voyage. Is this agreeable to the distress set 
 up ? Were there any repairs ? Nothing is done beyond some little re- 
 pairs to the sails, and taking in a supply of water. Then it is said that 
 there was a ^ircity of water, but it is to be remarked that the vessel 
 only left the rand on the 21st of May ; and on the 4th of June there 
 is a deficiency of water. If this were so, it is a criminal improvir 
 dence on the part of the claimant, who was bound to provide for the 
 chances of a much more protracted voyage ; it was his duty to put 
 on board such a supply as was requisite for the intended voyage. If 
 the water failed within the space of these few days, could it be that ' 
 a reasonable quantity had been put on board ? But the truth is, 
 there was no alarming deficiency ; for there were 140 gallons of 
 
HIGH COURT OF ADMIRALTY. 170 
 
 The Eleanor. Edw. 
 
 water on board, besides rain-water which had been caught, and which 
 was proper for coarser purposes. There is, therefore, as great a fail- 
 ure in this part of the case set up as in every other. There is a pas- 
 sage in the evidence of Davis, the mate, which carries with it a very 
 strong confirmation of the suspicion of an antecedent destination to 
 this port of Halifax. He is asked where the voyage is to end, and 
 his answer is, " that he cannot undertake to swear where it was to 
 have ended, because the ship's articles say back to any port in Ame- 
 rica. Deponent thought it was meant to be Halifax, but could not 
 tell ; his reason for thinking so was from hearing Hall talk about 
 Halifax a good many times," and he goes on to state, " that 
 he cannot undertake to say *the vessel was in any real dis- [ 170 ^^ 
 tress when she arrived in the port, but her standing jib was 
 entirely gone, and her flying jib much torn, water growing short ; he 
 thinks she might have pursued her voyage to Antigua in safety, but 
 they all thought it would make no difference coming into a British 
 port." Here then is a strong ground for supposing the existence of 
 an antecedent purpose of going to Halifax, and that it did not arise 
 from the accidents of the voyage. The vessel came in on the 18th 
 of June ; and it was not till the custom-house oQicers were in pos- 
 session that Hall intimated his wish to get the register indorsed, and 
 to complete the bill of sale. But that could not rehabilitate the ves- 
 sel ; she had already committed a breach of the law, and was in pos- 
 session of the officers of the customs. It has been argued that these 
 goods could not have been intended for ijnportation at Halifax as 
 they are not adapted for that market ; of the weight of that argu- 
 ment the court below was, from local knowledge, much better quali- 
 fied to judge. I may, however, observe, that these same goods are 
 amongst those enumerated in the statute which gives the governor of 
 Nova Scotia an authority to permit their importation, and it is clear, 
 therefore, that there is an occasional demand for them. 
 
 I have entered into these facts more minutely, because I am not 
 ignorant that this case has been made the subject of an outcry, in 
 which the judge of the court below, and the officers of the crown, 
 have been treated with sufficient freedom. I must advertise parties, 
 that if they feel themselves aggrieved by the sentence of a court of 
 justice, this is not the species of remedy -to-hich the law has provided 
 for them. The true remedy is to be pursued by a regular cause of 
 appeal in the tribunals appointed to correct errors, and not by partial 
 and inflamed complaints against persons in judicial situa- 
 tions, preferred behind * their backs, and in quarters where [ *171 ] 
 such complaints cannot be judicially examined. What 
 would be unfair towards individuals is not less so w|ien directed 
 
 EDW. 11 
 
172 CASES DETEEMINED IN THE 
 
 The BoUetta. Edw. 
 
 against courts of justice. I do not, however, sit here to decide upon 
 the character and conduct of the judge and officers of the crown at 
 Halifax, but to determine the legal merits of this case. From the 
 conclusions I have drawn from the evidence it will be inferred, that 
 I approve the sentence which has been given ; Mr. Hall's intentions 
 may be honest, for they are known only to himself ; I can judge of 
 them only from facts, and such facts as appear in the evidence which 
 is furnished, and judging from that evidence, I do, without hesitation, 
 affirm the sentence appealed from.^ 
 
 BoLLE^TTA, Trumpey. 
 
 May 2, 1809. 
 
 Occupation of territory in time of peace, with the concurrence of the sovereign — presump- 
 tive evidence that it is the result of cession by treaty. 
 
 This was the case of a Danish ship, bound on a voyage from 
 Zante to Copenhagen, with a cargo documented as the property of 
 merchants resident in the Seven Islands, and captured on the 31st 
 of August, 1807, by The Snap Dragon, privateer. Proceedings were 
 commenced against the ship and cargo by the captor, when the 
 King's Proctor intervened for the crown, on the ground that the cap- 
 ture was made prior to the declaration of hostilities against Russia. 
 
 On the part of the captor it was argued — That these islands had 
 been ceded to France, prior to the capture ; that they had become 
 part of France, and consequently that the cargo was the property of 
 French subjects, and, as such, must be condemned to the captor. 
 
 For the crown, it was contended — That the cession of those 
 islands to France was only matter of conjecture, founded 
 [ * 172 ] upon vague rumors circulated in 'some of the foreign jour- 
 nals ; that if the captors relied upon the fact of cession, it 
 was incumbent on them to show that it had taken place. 
 
 The court interfered, and observed that although regularly it was 
 
 ' See Appendix, E. 
 
HIGH COURT OF ADMIEALTY. 173 
 
 The BoUetta. Edw. 
 
 the business of the party making the assertion to adduce evidence of 
 the fact upon which he relied, yet in this case he should direct the 
 proctor for the crown to apply to government for information ; as ill 
 his official situation he could make the application with more facility 
 than the proctor for the privateer. 
 
 On a subsequent day the cause came again before the court, when 
 the King's Proctor brought ip the following answer, which had been 
 received from the office of the secretary of state : — " Foreign Office, 
 February 20th, 1809. Mr. Bagot presents his compliments to Mr. 
 Bishop, and, in answer to the question contained in the inclosed 
 paper, he has the honor to inform him that the cession to France of 
 the Ionian Eepublic was only made known to the British govern- 
 ment by the fact of its occupation by the French troops some months 
 after the signature of the peace of Tilsit. It is not in the patent 
 articles of that peace." At the same time further evidence was fur- 
 nished on the part of the captor, consisting of an extract from the log- 
 book of The Weazle, sloop of war, which was cruising off the Seven 
 Islands at that period, together with an affidavit of Captain Clavell, 
 her commander. 
 
 Judgment. 
 Sir W. Scott. The question in this case is, whether the capture 
 took place subsequent to the cession of these islands to France by 
 the Emperor of Russia ; for if the fact was so, upon the principle 
 laid down by the court in the Kniphausen cases, the captors 
 will be entitled to the benefit of the condemnation. * The [ * 173 ] 
 capture took place on the 31st of August, and it can hardly 
 be denied that the Seven Islands were in the possession of the 
 French at that time ; but, when the case came on before^ it was 
 objected that there was no evidence to show that this was any thing 
 more than a mere temporary possession, except some loose sugges- 
 tions in the foreign newspapers, which required to be supported by 
 proofs of a more authentic nature. With this view, the court 
 directed an application to be made to the secretary of state for the 
 foreign department, for information respecting the time when the 
 cession of those islands to France took place. The answer which 
 has been received is not very satisfactory as to the point at issue. 
 But in order to supply this deficiency of information, the captors 
 have brought in an extract from the log-book of The Weazle, sloop 
 of war, which was cruising in that neighborhood at that time, with 
 an affidavit of Captain Clavell, her commander. On the part of the 
 crown it has been contended, that the possession taken by the 
 
174 CASES DETERMINED IN THE 
 
 The BoUetta. Edw. 
 
 — 5 . 
 
 French was of a forcible and temporary nature, and that such a pos- 
 session does not change the national character of the country, until 
 it is confirmed ]jy a formal cession or by long lapse of time. That 
 may be true, where possession has been taken by force of arms and 
 by violence ; but this is not an occupation of that nature. France 
 and Russia had settled their diflferences by the treaty of Tilsit, and 
 the two countries being at peace with each other, it must be under- 
 stood to have been a voluntary surrender of the territory on the part 
 of Russia. This is the light in which it is viewed in his Majesty's 
 declaration ; and although in the answer received from the secretary 
 of state's office the time when it may have taken place is not men- 
 tioned, yet there is a distinct admission of the fact. But 
 [ * 174 ] the affidavit of Captain Clavell, and the extract * from his 
 log-book, furnish evidence of a more decisive nature. He 
 states, that "he proceeded with The "Weazle towards the harbor of 
 Corfu, on the 23d of August, 1807, and upon going ashore there, for 
 the purpose of waiting on the British minister, he found that he had 
 been obliged to fly, and that Corfu was actually in possession of 
 French troops; that, on his return on board The Weazle, he found 
 an Englishman, who had been sent on board by Mr. Kirkfe, the Bri- 
 tish vice-consul at Corfu, with information that the said place was 
 in possession of the French, and had been for several days ; that the 
 deponent went to sea immediately, and on the following morning 
 captured some vessels, with French troop^ on board, bound to Corfu 
 and other places in the Seven Islands ; that the deponent was then 
 informed that Corfu, Zante, Cephalonia, and other islands belonging 
 to Russia, commonly called the Seven Islands, had been ceded to 
 the French, who took possession thereof on the 12th of August, and 
 that part of the French troops had been conveyed thither on board 
 of and under the protection of Russian ships." Now this is a fact 
 which proves that it was a voluntary surrender on the part of Russia, 
 in consequence of a previous cession, and that it was not a hostile 
 occupation by force of arms, liable to be lost again the next day. It 
 was a cession made by Russia, at a time when she was linked with 
 France in the closest ties of amity. No other evidence is to be pro- 
 cured, and I am of opinion that there is sufficient to satisfy the court 
 that, at the time of the capture, these islands had been transferred to 
 France ; and, consequently, that this property is subject to the com- 
 mission of war held by this privateer. 
 
HIGH COURT OF ADMIRALTY. 175 
 
 The Maria. Edw. 
 
 * INSTANCE COURT. [*175] 
 
 Maria, Kilstrom. 
 November 27, 1809. 
 
 Salvage. Interference of a third party not justifiable where the salvage is already in the 
 act of performance, and under means sufficient for the purpose.^ 
 
 This was a question arising upon the salvage of a Swedish ship, 
 which had been abandoned at sea by her crew, under circumstances 
 of great distress, and was taken possession of by two fishing smacks, 
 The Perseverance and The Ceres, with the intention of carrying her 
 into the port of Harwich. After they had taken the wreck in tow, 
 his Majesty's gun-brig, Mariner, came up, and, having sent ropes and 
 people on board, continued towing her, jointly with the fishing 
 smacks, for some time ; but the commander of The Mariner after- 
 wards directed the fishing smacks to be cast off, as the gun-brig 
 alone was sufficient for the purpose, and the wind having the next 
 morning shifted to the northwest, he resolved to proceed with the 
 wreck to the first port he coiild fetch to the westward. The Perse- 
 verance and The Ceres continued in company until they arrived oflF 
 Dover, and actually assisted in warping the vessel into that 
 harbor, although, after they were cast off", they had * been [ * 176 ] 
 prevented bv^ the people belonging to The Mariner from 
 interfering any further in the service of towing her. On the part of 
 The Mariner it was alleged, that when Lieutenant Griffiths intimated 
 his intention of taking the wreck in tow, no objection was made by 
 the people belonging to the fishing smacks ; that they would have 
 been much longer in performing the service ; and that if The Mariner 
 had not been present, they would either have been captured or obliged 
 to quit the wreck, in consequence of the near approach of a French 
 privateer on the second day. 
 
 ' [For decisions as to salvors interfering with prior salvors, see The Eugene, 3 Hagg» 
 Ad. R. 156; The Effort, Ibid. 165; The Dantzic Packet, Ibid. 383 ; The Blenden- 
 HaU, 1 Dod. 414 ; The Fleece, 3 W. Bob. 278 ; The Charlotta, 2 Hagg. Ad. K. 361 ; 
 The Glasgow Packet, 2 W. Kob. 306 ; The India, 1 W. Eob. 406 ; The Henry Ew- 
 bank, 1 Sumn. 400; The Elvira, Gilp. 60; The Amethyst, Davies's E. 20; The 
 Glory, 2 Law & Eq. R. 551 ; The Samuel, 4 Ibid. 581.] 
 11* 
 
177 CASES DETERMINED IN THE 
 
 The Maria. Edw. 
 
 Judgment. • 
 
 Sir W. Scott. This is clearly a case of salvage and of derelict, 
 as it appears that the ship had been totally abandoned, and was res- 
 cued from danger by some of the parties appearing in this cause. 
 At the same time, it is not a salvage service of any very transcend- 
 ent merit, arising from considerations of special danger or difficulty 
 attendant upon its execution ; and therefore the salvors will not be 
 entitled to the highest recompense which, in some of these cases, 
 the court is inclined to allow. There was no immediate peril ; the 
 weather was moderate, and it appears that little actual exertion was 
 necessary, beyond the mere labor of towing the vessel, which is of no 
 great bulk, only forty-eight tons, and having on board a cargo of a 
 very buoyant nature. The principal question, therefore, is, to which 
 of these parties the court shall decree the salvage ? It appears that 
 these two fishing smacks. The Perseverance and The Ceres, being at 
 sea for the purpose of fishing, something which had the appearance 
 of a wreck was discovered at a distance ; The Perseverance 
 I * 177 ] immediately stood towards the object, * which proved to be 
 this vessel, and, having got possession, proceeded to take 
 her in tow. The Ceres came up about an hour afterwards, and 
 proffered her assistance, which was accepted ; and, from that time, 
 both the smacks were employed in one- common service of towing 
 the wreck. Two hours after this, up comes The Mariner gun-brig, 
 dispossesses the fishing smacks, and now claims to be considered not 
 only as salvor, but as principal salvor, by the court. The question 
 of merit or of demerit on her part, must depend upon a preliminary 
 question, which is, whether her assistance was wanted or not ; because 
 the character of the act must be determined by the nec^sity of this 
 interference. If there was no such necessity, it will be a case rather 
 of demerit than of merit; a salvor, who is in possession, has a lien, a 
 qualified property, in the thing saved ; and it may be extremely inju- 
 rious, not only to his interests, but to those of the owners themselves, 
 that he should be put out of possession, and his reward disputed or 
 interfered with by others, until the matter can be adjusted in a court 
 of justice. If these two smacks, which had the vessel in tow, were 
 sufficient for the purpose, in what way can the gun-brig be considered 
 as a salvor ? The salvage was already in the act of performance, and 
 under means apparently sufficient. That a party should lie by as 
 an indifferent spectator, without offering any assistance to a vessel in 
 distress, and then, when others are in the very act of executing the 
 service, should be permitted to come in and say, I am a salvor in this 
 case, is not to be endured ; not only does it introduce new and vexa- 
 tious claims against the owners, but it may prevent those who are 
 
HIGH COURT OF ADMIEALTY. 178 
 
 The Maria. Kdw. 
 
 justly entitled to reward from receiving an adequate share. 
 In the present case *it is expressly denied, on the part of [ *178 ] 
 the fishing smacks, that they were in any want of assistance 
 from the gun-brig ; and, therefore, it remains for me to consider what 
 is the evidence produced on the other side in support of that aver- 
 ment. Now I must own that it appears to me very inadequate to 
 sustain the claim which is advanced by this king's ship. It is said 
 by Annis, the pilot of The Mariner, " that the master of The Perse- 
 verance intimated that he had been a fortnight at sea, fishing out of 
 sight of land, and, in consequence, was unable to tell correctly where 
 he then was, and inquired of the deponent the bearings and distance 
 from the land." That, certainly, is not enough to entitle the inform- 
 ants to a salvage ; they were bound to communicate such informa- 
 tion ; it was not more an act of humanity than of duty, and what the 
 master of the fishing smack had a right to expect from any vessel 
 that he might have fallen in with. Lieutenant Griffiths then goes on 
 to state, "that considering the ship to be ninety miles from Harwich, 
 the nearest British port, and conceiving The Perseverance and her 
 crew in possession, to be insufficient to conduct her into a port of 
 safety, he intimated to the master of the fishing smack that he should 
 take her in tow." But, in point of fact, the other smack was also 
 contributing her assistance, and there is nothing to show that they 
 were not together sufficient for the purpose to be effected. Mr. Grif- 
 fiths, indeed, say that they were not sufficient ; but he has not stated 
 the grounds upon which he formed that opinion ; and when it is ex- 
 pressly averred, on the other side, that no such assistance was required, 
 I cannot take his opinion absolutely ; he should have put the court in 
 possession of his reasons for so thinking, in order that it 
 might judge * of their sufficiency. Because, it is not enough [ * 179 ] 
 that this gentleman himself entertained a sincere persuasion 
 that the fishing vessels were unequal to the task they had undertaken ; 
 the court, also, must be satisfied that he entertained that opinion 
 upon sufficient grounds. Another ground for the claim set up by 
 the gun-brig is founded upon a sort of military service ; it is said that 
 a cruiser of the enemy made her appearance, and would have cap- 
 tured the vessel had she not been deterred by the presence of The 
 Mariner ; but this happened on the second day, and in a place to 
 which the vessel might not have been brought, if she had been left in 
 the hands, of the people belonging to the fishing, smacks, as it was : 
 their intention to carry her direct into Harwich ; so that if the enemy's 
 cruiser was driven off by the gun-brig, it is to be recollected that the 
 danger itself would, probably, not have arisen if the vessel had not 
 been brought into that situation by the determination of Lieutenant 
 
180 CASES DETERMINED IN THE 
 
 The Santa Anna. Edw. 
 
 Griffiths to pursue another course. Upon the whole of the circum- 
 stances, I am under the necessity of. considering the claim of The 
 Mariner as of the weakest kind ; her commander may, at the same 
 time, have acted under an impression that his interference was neces- 
 sary ; and, therefore, I shall allow two fifths of the whole value to be 
 divided between the two fishing smacks, after deducting the expenses, 
 and fifty guineas to the crew of the gun-brig. 
 
 [ * 180 ] * Santa Anna, Larrinago. 
 
 November 25, 1809. 
 
 Spanish property, the owners being resident in a part of Spain subject to the control of the 
 French, restored under the order in council, 4th Julj-, 1808. 
 
 This was the case of a Spanish ship and cargo, which was cap- 
 tured 21st August, 1809, by the private ship of war John Bull, on a 
 voyage from Montrico to Cadiz ; with an ostensible destination to 
 St. Andero. 
 
 On the part of the captors it was contended — That the parties on 
 whose behalf the claim was given, were resident in that part of Spain 
 which was under the dominion of the French, and, consequently, that 
 they had not a persona standi in the British Court of Admiralty. 
 That supposing them to be entitled to restitution as Spanish subjects, 
 under the order of the 4th of July, yet they were Spanish subjects, 
 who, in this instance, were carrying on a traitorous intercourse with 
 the enemy, for whose use these stores must be presumed to be going, 
 as the French army was in possession of St. Andero. That it was 
 to be expected that the witnesses examined in preparatory should 
 wish to dissemble that destination, and, therefore, little reliance could 
 be placed on their testimony. That, as to the documentary evidence, 
 it was inconsistent with itself; for, although the bills of lading and 
 letters of consignment pointed to Cadiz, yet there was a certificate on 
 board from the municipal office at Montrico, declaring the actual des- 
 tination to be St. Andero ; and as the master had sworn that all his 
 papers were true and genuine, they were all equally entitled to belief, ■ 
 The court, therefore, would rather infer a destination to St. 
 [ *181 ] Andero, from the smallness of the vessel, and the * improba- 
 bility that she should have been permitted to put to sea with 
 
HIGH COURT OF ADMIRALTY. 182 
 
 The Santa Anna. Edw. 
 
 a cargo adapted to military purposes, unless the French had been 
 well assured that it was with the intention of proceeding to some 
 Spanish port in their possession, in which case the ship and cargo 
 would also be subject to confiscation, under the order in council^ pro- 
 hibiting vessels to trade between ports from both of which the British 
 flag is excluded. 
 
 On the part of the claimants it was argued — That the vessel actu- 
 ally stood towards the privateer for protection the moment she dis- 
 covered her to be a British cruiser. That the witnesses in preparatory 
 all declared that their destination was to Cadiz, and that their repre- 
 sentation of the fact was corroborated by every document on board, 
 except the certificate from the municipal officer of Montrico, which it 
 was necessary to obtain in order to enable the ship to clear out : and 
 that as to the smallness of the vessel, it was notorious that the greater 
 part of the coasting trade of Spain was carried on from one extremity 
 of the country to the other in vessels of precisely that description. 
 
 Judgment. 
 Sir William Scott. I think it is clearly the intention of the 
 government of this country, publicly expressed, that all Spanish pro- 
 perty should be treated with the utmost possible tenderness. The 
 order in council of the 4th July, 1808,^ declares that " all hostilities 
 against Spain, on the part of his Majesty, shall immediately cease ;" 
 here, then, is a total extinction of hostilities proclaimed, without any 
 exception or limitation whatever. In the third and fourth articles of 
 the same order it is provided, " that all ships and vessels be- 
 longing to * Spain shall have free admission into the ports [ * 182 ] 
 of his Majesty's dominions, as before the present hostilities ; 
 and that all ships and vessels belonging to Spain, which shall be met 
 with by any of his Majesty's ships and cruisers, shall be treated in 
 the same manner as the ships of states in amity with his Majesty." 
 Here, again, is no restrictive distinction of particular parts of Spain, 
 but peace and amity are proclaimed generally with that country, in 
 exactly the same terms as would have been employed in a definitive 
 treaty. Under these public declarations of the state, establishing this 
 general peace and amity, I do not know that it would be in the power 
 of this court to condemn Spanish property, though belonging to per- 
 sons resident in those parts of Spain which are, at the present moment, 
 under French control, except under such circumstances as would jus- 
 
 1 January 7, 1807. 2 Appendix F. 
 
183 CASES DETERMINED TN THE 
 
 The Santa Anna. Edw. 
 
 tify the confiscation of neutral property. The order in council appears 
 to be framed under the impression, that the general dispdsition of the 
 inhabitants is friendly to this country, and that this disposition is 
 only overruled by the effect of French force in particular districts. In 
 the cases of the property of such persons taken, the court would, I 
 think, be at most inclined to suspend its judgment for the present, 
 under the authority of this general declaration, and wait till some 
 more precise rule was framed by proper authority, or till length of 
 time and duration of French possession furnished a rule that might 
 apply to such cases, though not specifically distinguished in the terms 
 of the order. In the present case, I see no sufiicient reason for an 
 unfaTorable hesitation of judgment. The vessel is, I think, proved to 
 
 be going to Cadiz, the port of our allies, with a useful cargo 
 [*183 ] on board, a * cargo of military stores ; there is nothing to 
 
 contradict this destination, excepting a single document, a 
 paper of mere form, granted by the constituted authorities, as they 
 are called, at Montrico, in which a destination to St. Andero, then in 
 French possession, is held out. It is impossible to attach much weight 
 to that, because such a paper must have been accepted on board any 
 vessel sailing from the port which this ship had quitted, as a cargo of 
 such a description would not have been licensed to depart for Cadiz 
 by those who alone had the authority to grant passports. All the 
 witnesses depose to the destination to Cadiz; the letters on board 
 are addressed to persons there, and the fact that this vessel stood to- 
 wards the British privateer for protection, the moment her character 
 was ascertained, strengthens the presumption. The evidence, there- 
 fore, of a destination to Cadiz, strongly preponderates ; and, taking 
 the fact to be so, what is this case, but that of subjects of a country 
 with which a general amity had been proclaimed, serving the com- 
 mon cause of the allied countries, by carrying military stores to one 
 of the strongholds occupied on behalf of that cause, from a port hap- 
 pening to be subject to the prevalence of French arms in its immedi- 
 ate neighborhood. Be the residence of the parties what it may, (for 
 it does not very distinctly appear,) I can have no hesitation in restor- 
 ing property so employed to persons manifesting such dispositions. 
 
HIGH COURT OF ADMIRALTY. 184 
 
 The Speculation. Edw. 
 
 * Speculation, Koht. [ * 184 ] 
 
 April 12, 1810. 
 Trade between Prussian ports illegal under the order in council, 7th January, 1807. 
 
 Judgment. 
 
 Sir W. Scott. This is the case of a Prussian ship and cargo, 
 captured on a voyage from Stettin to Koningsburg, both Prussian 
 ports ; and I am of opinion that, under the order in council prohibit- 
 ing vessels to trade between ports from which the British flag is ex- 
 cluded, this voyage is illegal. It is true that, by a subsequent order 
 in council,! of the 25th November, 1807, Prussian ships are permitted 
 to trade between neutral port and neutral port ; but I think thiS order 
 is controlled as well by its own import as by the former order of the 
 7th of January, so far as respects the trade from one Prussian port to 
 another, from both of which the British flag is now excluded. Be- 
 cause ports so interdicted to the commerce of this country, in com- 
 pliance with the wishes and policy of the enemy, cannot be brought 
 within the description of ports strictly neutral, though the country 
 of which they form a part may not be at war with this country, and 
 may have a general character of neutrality. The ports themselves 
 are in effect hostile ; they derive a character of hostility from the ex- 
 clusion of the British flag, in the same manner, and under the same 
 penalties of prohibition, as would be applied in ports directly hostile. 
 A part of this cargo, it has been suggested, is entitled to peculiar 
 consideration, as it is represented to be the property of the King of 
 Prussia himself; and certainly, if it could be shown that these were 
 articles going for the private accommodation of the sove- 
 reign, *it would be proper, (conformably to that comity [* 185] 
 which is observed in such cases by the courts of prize,) to 
 restore it ; but in this instance, the property in question consists of a 
 considerable quantity of salt, evidently not intended for the private 
 consumption of the sovereign, but for the purposes of trade or re- 
 venue, and, therefore, it cannot be so favorably distinguished. 
 
 Ship and cargo condemned. 
 
 1 Appendix G. 
 
186 CASES DETERMINED IN THE 
 
 L'Actif. Edw. 
 
 L'AcTiF, Lorrial. 
 
 January 23, 1810. 
 
 British prize vessel having been fitted out as a privateer by the enemy, although navigating 
 as a merchant vessel at the time of recapture, not restored to the former British owner.^ 
 
 This was a British prize vessel, which had been recaptured from 
 the French, and the question was, whether the former British owners 
 were entitled to restitution on salvage under the circumstances of the 
 case. It appeared that at the time when the recapture took place 
 the shif^ was sailing under French colors, as a merchant vessel, on 
 a voyage from L' Orient to Nantes, with a cargo of sugar, cotton, 
 and other goods. She had no commission of war, nor any arms ex- 
 cept a few muskets for self-defence ; but an affidavit was made by 
 the mate, who deposed that she had cruised as a French privateer 
 for two months against the commerce of this country ; and there was 
 also a register of this ship as a French merchant vessel on board, in 
 which it was recited that she had formerly been fitted out as a priva- 
 teer at Rochelle. On these grounds it was submitted, that the Bri- 
 tish claimants were barred from restitution under the exceptive clause 
 of the Prize Act. 
 
 [ * 186 ] "Judgment. 
 
 Sir W. Scott. The question in this case turns upon 
 the interpretation of a clause in the Prize Act;^ the words of 
 which are undoubtedly very large, for it provides that "if such 
 ship or vessel so taken shall appear to have been, after the taking 
 by his Majesty's enemies, by them set forth as a ship or vessel 
 of war, the said ship or vessel shall not be restored to the for- 
 mer owners or proprietors, but shall in all cases, whether retaken by 
 any of his Majesty's ships or by any privateer, be adjudged lawful 
 prize for the benefit of the captors." Here, then, is a rule as broad 
 and universal as can well be laid down, and the terms in which it is 
 expressed are such, that if this court were disposed to escape from its 
 conditions, it would find it very difficult to furnish any sufficient apo- 
 logy for so doing. In the act itself no policy is pointed out for the 
 
 1 [The Nostra Signora del Kosarlo, 3 C. Rob. 10 ; The Horatio, 6 C. Rob. 320 ; The 
 Ceylon, 1 Dod. 114 ; The Georgiana, 1 Dod. 401 ; The Renard, Hay & Mar. 222.] 
 
 2 44GeQ. in. c. 72. 
 
HIGH COURT OF ADMIRALTY. 187 
 
 L'Actif. Edw. 
 
 foundation of the rule, but it is laid down in general terms, and in the 
 past tense. It is, however, agreed on all hands, that this particular 
 clause was intended by the legislature as a stimulus to exertion pro- 
 portioned to the danger of the undertaking, and, therefore^ it has been 
 argued that it is confined to vessels which are actually under com"- 
 mission when retaken. Now it is not without its use, in the inter- 
 pretation of this statute, to consider what was the original state of 
 the existing law upon this subject. The rule of that law was, that 
 where a ship was taken and carried infra prcesidia, and especially 
 after a sentence of condemnation, the ship became the property of 
 the captor, and, if retaken, the former owner had no jus poslliminii ; 
 and this continued to be the general law of Europe down to a very 
 late period. This country, as a commercial country, has 
 departed from it, and has made a new and peculiar * law [ * 187 ] 
 for itself, in favor of merchant property recaptured,, intro- 
 ducing a policy not then adopted by other countries, and differing 
 from its own more ancient practice. A rule of policy so intro- 
 duced must still be considered as an exception from the general 
 law, and is to be interpreted, where any doubt arises, with a leaning 
 to that general law which is no farther to be departed from than is 
 expressed. By the terms of this clause, vessels are excepted which 
 "shall appear to have been set forth for war." The policy of this ex- 
 ception is not expressed, but it amounts, I think, to a declaration, 
 that the more lenient rule adopted by this country does not apply to 
 a case attended with the present circumstances ; and unless it can be 
 proved that, in enacting this clause, the legislature had nothing else 
 in view, but to encourage the attack of armed vessels, it cannot be 
 allowable for this court to assume that such was the sole policy of 
 the act, to the eifect of confining its operation to that single case. I 
 think it more probable, that where the former character of a vessel 
 had been once obliterated by her conversion into a ship of war, the 
 legislature meant to look no further. From, that moment the title of 
 the former owner, and his claim to restitution, were entirely extin- 
 guished, and could not be revived again by any subsequent variation 
 of the character of the vessel. His title being once gone is gone for- 
 ever; the words of the act of parliament are broad and general, and 
 in a retrospective form, and I feel it difficult to retreat from the obli- 
 gations they impose upon me. At the same time, as this is a new 
 case, I shall allow the claimants their expenses. 
 
 EDW. 12 
 
1S8 CASES DETERMINED IN THE 
 
 The Byfield. Edw. . 
 
 ;[*188] * Byfield, Foster. 
 
 ! December 9, 1809. 
 
 i Breach of blockade. Sale of cargo in the blockaded port by compulsion- 
 
 This Amereican ship was captured on a voyage from Copenhagen 
 to'IjLverpoolj and proceeded against for a breach of the blockade.^ 
 It appeared from the evidence of the master, that the ship had sailed 
 onijher former voyage from Boston,, destined toGottenburg,, for in- 
 formation and in pursuit of a market; but on her arrival off the Naze 
 of J Norway, she had been captured by a Danish privateer, and on the 
 14th of July -was carried into Christiansand. After two months de- 
 lay the ftiaster obtained his liberation, and sailed for St. Petersburg; 
 bu!t com'ing''to an anchor off Copenhagen, he was there detained, and 
 cornpelled by the government to land and sell his cargo; aft6r which 
 he Jobtained permission to take on board the present cargo, on ac- 
 copnt of his owners, for Liverpool. A claim was given for the ship 
 and cargo, as protected by his Majesty's license, which was not ex- 
 hibited; but among the ship's papers there was an order in council 
 dal^ed August 24th, authorizing the grant of a license to certain Bri- 
 tish merchants, permitting a vessel bearing any flag, except the 
 French, to proceed with a cargo of permitted goods, from any port in 
 the Baltic to any port in the United Kingdom. 
 
 i' Judgment. 
 
 Sir "William Scott. The evidence which is furnished in this 
 cage shows that the conduct of the master, in going with his ship 
 
 ;! to Copenhagen, was perfectly voluntary. The account 
 
 [ *'189 ] which he gives, is, " that the ship *was captured on her 
 voyage from Boston to Gottenburg, and carried into Chris- 
 tiansand; after a delay of two months he obtained restitution, and 
 sailed fol'' Petersburg, bat that, having come to an anchor at Copen- 
 hagen, he was there compelled to sell his cargo." I must observe, in 
 the. first place, that having gone voluntarily, and without necessity, to 
 Copenhagen, he had already violated the blockade; the act was en- 
 tirely his own ; =Jand the subsequent force, if applied at all, was only 
 to .-compel him to dispose of his cargo. Now clearly this subsequent 
 
 Appendix f. 
 
HIGH COURT OF ADMIRALTY. 190 
 
 The Luna. Edw. 
 
 compulsion, if proved, cannot be taken as exempting him from the 
 penalties of the offence already committed by him ; because sucli a 
 doctrine would put it in the power of the enemy to take off in part, at 
 least, the effect of a blockade, and, by a pretended exercise of au- 
 thority, to rehabilitate the vessel, and enable her to sail out again in 
 ballast in the very face of the blockading force, after she had deposited 
 her cargo. Here, however, the blockade was violated by a secopd 
 act, which is also admitted to have been voluntary. , The mate says, 
 "that after the former cargo was discharged, the master went bn^ 
 shore, and petitioned the government for permission to take in another 
 cargo in the blockaded port." It is no excuse to say that this cargo 
 was intended to be brought to this country ; the ship was no more;at 
 liberty to break the blockade for such a purpose than for any other. 
 Then it has been thrown out, that here is an order of council for a 
 license to import from the Baltic ; but the license itself is not forth- 
 coming, neither would it have furnished any protection to the case, 
 because, at the time the order bears date, the ship was lying at 
 Christiansand, when, according to the representation of the r , 
 * claimants, there was no intention of disposing of the [ * 190 ] 
 former cargo at Copenhagen ; and therefore it could not be 
 of a nature to protect the purchase of a fresh cargo in that port, a 
 transaction which was not in contemplation when the application rto 
 the council office was made. A license, expressed in general terms, 
 to authorize a ship to sail from any port with a cargo, will not 
 authorize her to sail from a blockaded port with a cargo taken in 
 there. To exempt a blockaded port from the restrictions incic^ent to a, 
 state of blockade, it must be specially designated with" such an ex- 
 emption in the license; otherwise a blockaded port shall be taken ^aS 
 an exception to the general description in the license. Ship and 
 cargo condemned. , ; 'i 
 
 Luna, Southworth. i; 
 
 January 29, 1810. 
 
 Order in council, 26th April, 1809, not held to extend to places temporarily under the doini-^ 
 nion of the enemy. Appendix H. ■ y! 
 
 This ship, under American colors, was captured on a voyage from 
 New York to St. Sebastian's : there was no question as to the pro- 
 perty ; but upon the fact of destination it was urged, on behalf of the 
 
191 CASES DETERMINED IN THE 
 
 The Luna. Edw. 
 
 captors, that the order of the 26th April, 1809, imposing a blockade 
 on all ports and places under -the goverment of France, together with 
 the colonies, plantations, and settlements in the possession of that 
 government, must be construed to extend to the port of St. Sebas- 
 tian's, as it was notorious that the French had been in complete 
 possession of the place for nearly two years. That upon any other 
 construction of the order in council, the blockade would be rendered 
 
 wholly abortive, as it was nugatory to prohibit vessels from 
 [ * 191 ] * carrying their cargoes into the ports of France, if they 
 
 were permitted to have free access to ports situated im- 
 mediately upon the French boundary, and in the actual poss.ession of 
 the French armies. 
 
 Judgment. 
 Sir William Scott. I can have no doubt that this ship and 
 cargo ought to be restored, for certainly it is not within the power of 
 this court to extend the operation of the blockade beyond the limits 
 which the public authority has assigned to it. I cannot admit that 
 because the port of St. Sebastian's borders on portswhich are block- 
 aded, that therefore it is less accessible than any other open port; the 
 introduction of such a principle would have the effect of stretching 
 out the limits of every blockade to an indefinite extent. "When the 
 order of the 26th of April was limited to the ports of France and 
 Holland, and their colonies, and to certain parts of the newly constii 
 tuted kingdom of Italy, it was intended to operate on those places, 
 and no other ; certainly not upon those which might be thrown tem- 
 porarily under the fluctuating dominion of France. The ship and 
 cargo must be restored ; but the question is, upon the expenses which 
 have been incurred in consequence of the detention. It is impossible 
 for the court to throw out of its consideration that when these orders 
 in council are issued, it is the duty of the officers of his Majesty's 
 navy to carry them into efiect ; and although they may be of a nature 
 to require a great deal of attentive consideration, gentlemen of the 
 navy are called upon to act with promptitude, and to construe them 
 as well as they can under the circumstances of cases suddenly arising. 
 
 With every wish, therefore, to make the greiatest allowance 
 [ * 192 ] * for the difficulties which are at present imposed on the 
 
 commerce of the world, I cannot, in this instance, refuse the 
 captors their expenses ; but in no future case, arising on the same 
 state of facts, will the court grant that indulgence. 
 
HIGH COURT OF ADMIRALTY. 193 
 
 The Henry. Edw. 
 
 Henry, Hannay. 
 
 February 17, 1810. 
 
 Salvage on vessel purchased at sea from the enemy for the purpose of restoring her to the 
 owners.! 
 
 This was the case of a British vessel which had been captured, 
 and was afterwards sold by the commander of the French privateer 
 to the master of an American vessel which he had taken on the pre- 
 ceding day. After the purchase -was effected, all the Americans, 
 except two, were removed into the Henry, together with her own 
 master and crew, and the American master then took the command 
 upon himself, with the intention of carrying the ship into Milfoid 
 Haven ; but the weather proving unfavorable, she was driven into the 
 port of Crookhaven, in Ireland, and was there seized as prize by 
 Lieutenant Keenan, the commander of his Majesty's schooner Cecilia. 
 
 An action was entered in a cause of salvage on behalf of the 
 American master, who stated, in an affidavit, " that the captain of 
 the French privateer having informed him that he intended to burn 
 the Henry, as she was in ballast, and it would not be worth his while 
 to carry her to a French port, made an offer to sell the ship to him 
 for 900^.; and being anxious to save the property for the owners, and 
 to prevent the crews of both vessels from being carried to France, 
 and being also strongly urged to accede to the proposal 
 *by the supercargo of the Henry, who offered at the same [ * 193 ] 
 time to secure to him the repayment of 200/., being his 
 proportion o£j;he purchase-money, (as part-owner,) he was induced 
 to draw a bill for the sum of 900/. upon his agents in London, in 
 favor of the owners of the privateer; in consequence of which 
 he was put in possession of the vessel, and shaped his course for 
 England." 
 
 Judgment. 
 Sir William Scott. The evidence upon which these claims of 
 salvage are founded, consists of a number of affidavits, and the depo- 
 sitions of three witnesses, who are examined, and who, I think, do 
 not give any very different representation of the facts of the cage. 
 The master's account is, that " the ship was taken by the Decide, 
 
 1 [The London, 2 Dod. 74.] 
 
 *12 
 
194 CASES DETERMINED IN THE 
 
 The Henry. Edw. 
 
 French privateer, on the 28th October last ; that at the time his 
 vessel was taken, the privateer had an American vessel in her posses- 
 sion called the John and Edward, of New York; and that some 
 hours after, the deponent and the supercargo, who had been carried 
 on board the privateer, were sent back to the Henry, together with 
 the master of the American ship, his crew, and passengers. That 
 the American master brought with him the papers belonging to the 
 deponent's vessel, and told him that he had purchased~the Hannah 
 from the captain of the French privateer for nine hundred pounds. 
 That it was intended the vessel should proceed for Milford Haven, 
 but having met with contrary winds, she was forced into Crookhaven, 
 in Ireland, where, after having been six days, she was seized by 
 
 Lieutenant Keenan, commander of the Cecilia tender." So 
 [ * 194 ] that here is * nothing upon the face of the depositions to 
 
 support the suggestion that the American master, after he 
 had purchased the vessel, did not intend to carry her to a British port. 
 He then proceeds to state that " Lieutenant Keenan came on board, 
 and made inquiry for the master of the vessel ; when the deponent 
 related to him all the circumstances which had attended the vessel, 
 and informed him that he had been the master, but he did not then 
 know what he was." Now, although this person was at a loss how 
 to describe himself, after the purchase of the vessel by the American 
 master, the legal relation will be the same. He says, further, " that 
 the American master happening to return on board soon after. Lieu- 
 tenant Keenan demanded from him the ship's papers, which he 
 accordingly delivered up ; and on the following day Lieutenant Kee- 
 nan took out the American crew, and possessed himself of the vessel." 
 The same account is given by the other witnesses, and I think it 
 results, from this evidence, that there was nothing thafawas otherwise 
 than meritorious in Lieutenant Keenan's taking the eow/jfbl of the ves- 
 sel under the peculiar circumstances of the case. That merit, however, 
 will not make him a recaptor ; the ship is clearly not taken out of 
 the hands of the enemy, though the measure he adopted might in 
 some degree contribute to the security of the vessel. 
 
 The account of the manner in which The Henry was purchased 
 by the American master, is contained more particularly in the affida- 
 vits of three gentlemen, who were passengers in The John and 
 Edward. They state that, " in the month of October last, they 
 agreed with John Byers Burger, the master of the ' ship .Joh^ and 
 Edward, for their passage from London to New York ; and 
 [ * 195 ] * having embarked with several other passengers, all British 
 subjects, they continued to prosecute their voyage until the 
 26th day of the same month, when they were captured by the 
 
HIGH COURT OF ADMIRALTY. 196 
 
 The Henry. Edw. 
 
 French privateer, La Decide ; that they were taken on board the pri- 
 vateer, and remained there about forty hours, when the privateer fell 
 in with and captured the brig Henry ; that, shortly after the brig was 
 talsen, the captain of the privateer offered to sell her to Burger for 
 eleven thousand dollars, which he refused to give, upon which the 
 captain of the privateer said he would burn the brig ; and after a 
 treaty, which was carried on for some time between Burger and the 
 captain of the privateer, and Mr. Kerr, the supercargo of The Henry^ 
 Burger, with the approbation of Kerr, agreed to give nine hundred 
 pounds for the brig, and to secure the same by his bills on London, 
 of which sum Kerr then agreed to secure two hundred pounds to 
 Burger, on his arrival in London ; that, on the bills for that sum 
 being so given, the captain of the privateer put Burger into posses- 
 sion of the Henry and her papers, and inimediately sent Burger, 
 together with the appearers, and Hannay and Kerr, on board the 
 brig, with permission to Burger to proceed in her to such port as he 
 should think proper." Now this has been represented as if it were 
 an illegal transaction ; and certainly, if the American master had 
 purchased the vessel on his own account, it would be so, as he could 
 derive no title from the captors without a fjrevious sentence of con- 
 demnation. But if it was merely a transaction by which, under the 
 form and color of a sale, he was to recover the property for the 
 owners, he has rendered them a very meritorious service, 
 and *is justly entitled to a salvage. It is not necessary [*19G ] 
 that the recovery of the property should be attended with 
 personal risk to the salvor. In cases where the enemy makes a pre- 
 sent of a captured vessel to a stranger, who has encountered no 
 hazard, who has not endangered a hair of his head, or laid out a six- 
 pence of his money, the court has always held the party entitled to 
 a salvage, if he has been the instrument of bringing the vessel back 
 to the possession of its owner. Now if by this pretended sale the 
 ship, which was otherwise consigned to destruction, has been reco- 
 vered, it is surely not for the owner to quarrel with the transaction, 
 and, at the same time, to take the benefit of it. Risk is not neces- 
 sary to found a claim of salvage. If it were so, it cannot be denied 
 that the vessel has been brought in safety to an English port, and 
 restored to the hands of its owners, at the risk of this person's purse, 
 and, perhaps, at the risk of his personal liberty ; because, for any 
 thing that I know to the#contrary, these bills might be put in suit 
 against him on his return to America, and he might finally become 
 answerable for them. Well, but it is said here was no intention to 
 give the vessel up to her owners, or to bring her into a British port. 
 Now every particle of the ^^vidence, which I shall presently notice, 
 
197 CA^ES DETERMINED IN THE 
 
 The Henry. Edw. 
 
 except the affidavits of Tooke, a passenger, and two 'seamen of The 
 Henry, points to the inteation, on the part of the American master,, 
 of coming to this country. The original purpose of the American 
 master was to run the ship into Milford Haven, which is certainty a 
 very proper port, and from whence he could with great facility have 
 had communication; .with,) the owners; but it happened that, 'the 
 weather proving, unfavorable, the ship was driven itito Crookhaven, 
 
 and, on the sixth day after her arrival there, she was seized 
 [ * 197 ] by Lieutenant * Keenan. Here, then, is the overt act, which 
 
 is sufficient evidence of the intention of the American 
 master to bring her to a British port ; and it affords no presumption 
 ■against the fairness of his intentions, that he did not throw up the 
 ship, which was his only security, immediately on his arrival" at 
 Crookhaven; In the short interval that elapsed, between his arrival 
 there and the seizure of the vessel, he might have had no sufficient 
 opportunity of opening a communication with her owners, or of 
 obtaining proper advice with respect to the mode in which he was to 
 proceed ; for he had' clearly a right to make his own indemnification 
 a matter of negotiation^ The averment which is contained in the 
 affidavits of Tooke, and of the two seamen, that " Burger threatened 
 to carry them into a French port, unless they would consent to give 
 him two hundred pounds," I take it to be perfectly fabulous. It is so 
 repugnant to all rational belief, that I think the sooner that affidavit 
 retires from observation the better. If such had been the fact, it 
 ■would certainly have come out in the depositions and the affidavits 
 of the three other passengers, who, however, appear to know nothing 
 of it. Then what is there to diminish the merit of this salvage, 
 which has been effected under the color of a sale, though no real sale 
 took place. The property has been rescued from destruction, and 
 , brought to a British port; which certainly would not have been done 
 if this American master had intended to run away with the ship. ' It 
 is a clear case of salvage ; and the American master must be pro- 
 tected against the bills drawn by him for the payment of the French 
 captor. I shall, therefore, give him three hundred pounds over and 
 above the amount of these bills, which, reckoning the property at 
 
 three thousand pounds, will be one seventh of the remain- 
 ,[ *198 ] der. * To the king's ship I shall allow thirty pounds, with 
 
 the expenses ; as it must be admitted that the vessel came 
 into the port in Ireland under very anomaldas and suspicious circum- 
 stances. 
 
HIGH COURT OF ADMIRALTY. 199 
 
 The Elizabeth. TS.iw. 
 
 Elizabeth, Nowell. 
 
 February 14, 1810. 
 
 Blockade, breach of; excuse insufficient. 
 
 This was the ease of an American vessel, bound on a voyage from 
 Baltimore, ostensibly to Tonningen, and captured for a breach of the 
 blockade of the Ems. The excuse set up by the master was, that 
 he had been informed by a British cruiser that be should not be able 
 to get a pilot at Heligoland to carry him on to Tonningen ; that the 
 anchorage in that roadstead was insecure at that season of the year ; 
 that his crew were exhausted with fatigue ; and that the vessel was 
 in distress, as he had lost his mate, and the binnacle compass had 
 been washed overboard. 
 
 On the part of the captors it was contended — That the determi- 
 nation of the master to proceed to the Ems was evidently not the 
 result of the causes alleged by him ; and that, supposing the fact to 
 be so, they did not constitute such a case of necessity as would jus- 
 tify him in proceeding to a blockaded port. 
 
 Judgment. 
 Sir W. Scott. This ship and cargo are claimed as the property 
 of the same owner, who is resident in America. The master is the 
 consignee of the owner, and certainly has a large discretion ' 
 as to the port which *he is to select for the disposal of his [ * 199 ] 
 cargo; although in the instructions Tonningen is pointed 
 out «f)rimarily as the port of his destination. The fact, however, is, 
 that the ship is captured in the river Ems, and, as I understand the 
 journal, with a pilot on board for Embden. Now Embden was 
 clearly an interdicted port, under the order of the 26th of April, 1809,^ 
 the date of which excludes all pretence of ignorance, when compared 
 with the date of this adventure. It is said that the late order of 
 the 17th of May,2 explanatory of the blockade of the Ems, renders 
 the former equivocal ; but in what manner it applies to the present 
 case is not attempted to be shown. The master himself pleads igno- 
 rance of the blockade ; but he pleads ignorance generally, not at all 
 
 Appendix I. 2 Appendix K. 
 
200 CASES DETERMINED IN THE 
 
 The Elizabeth. Edw. 
 
 founding it upon any misapprehension of the order of the 17th of 
 May. He seenis to have been unacquainted with the latter order, 
 and, consequently, could not have been misled by it; the argument, 
 therefore, which has been raised upon this circumstance, may safely 
 be laid aside. The difficulty, then, which the master has to explain 
 is, by what -means it has come to pass that, with a destinatioft to 
 Tonningen, he is found to be not only not going there, but actually 
 in an interdicted place. This is a strong fact, and requires to be 
 accompanied by a strong explanation. The account he gives is 
 this : : — " That on the 22d day of December the ship's course was 
 altered to the river Ems, by reason of this deponent having been 
 informed on that day, by an officer belonging to his Britannic Ma- 
 jesty'^ sloop of war, Mosquito, that several American vessels were 
 riding at anchor at Heligoland, without being able to procure pilots 
 for Tonningen, as the Danes rhade prisoners of all pilots 
 
 [ *200 ] going with ships *to that port; and that an American ship, 
 calle4 The ' Edward Preble, of New York, had been lost in 
 going in without a pilot. That this deponent was also induced to 
 alter the ship's course, as above stated, by reason of his mate having 
 been washed overboard, and his ship's crew being fatigued and worn 
 out by bad weather ; which rendered it imprudent to proceed with 
 his vessel to Heligoland, where the anchorage in the winter season is 
 very bad." Now the fact is, that he is not informed that the Ame- 
 rican ship was lost m going into Tonningen, which was the port of 
 his destination ; because his entry in his log is, thteit the ship was 
 lost going into the Elbe. Here is, therefore, an important variation 
 in his own account; of an occurrence which he' expects the court to 
 receive as a reason for his going to the Ems. The principal poipt, 
 however, upon which he relies is, " that a number of American ships 
 were riding at anchor at Heligoland, for want of pilots to go to Ton- 
 ningen." But it does not appear that any representation was m,ade 
 by him to the officer of The Mosquito, that he should be under the 
 necessity, on that account, of shaping his course for the Ems. If he 
 had, I presume the 0,nswer would have been : — " You must go to 
 Heligoland, as the other Americans have done. What is there to 
 privilege your vessel; more than any other ? If you do not choose to 
 go to Heligoland, there are other ports in the neighborhood ; but you 
 cannot make your inability to get a. pilot an excuse for going into a 
 blockaded port, Which would be an excuse quite as valid for all ;the 
 other American vessels, as they are waiting to get pilots." 
 
 Another fsict on which he relies to distinguish his case from 
 
 [ *201 ] others is, that the binnacle * and compass had been washed 
 overboard. ; The entry in the log, on the 24th, is this : " Saw 
 
HIGH COURT OP ADMIRALTY. 202 
 
 The Elizabeth. Edw. 
 
 two sail, which proved to be two.galliots, bound into Embden, which 
 we spoke, and got a man out of one of them to pilot the brig into harr 
 bor; she is in distress for a harbor, having lost the mate, and binnacle, 
 and compass overboard, and the people much fatigued, and not able to 
 do duty." Now it appears that for two days he continued steering per- 
 fectly well without the binnacle compass; and, if it was lost, the proba- 
 bility is, that he had another on board : at all events, being so near the 
 land, he could have been under no difficulty in getting to Heligoland, 
 which is a straight course, and where he certainly Vnight have obtained 
 another. Well, but then it is said, he had lost his mate : that, how- 
 ever, had happened some days before, and I must suppose that the 
 master was himself qualified to navigate the vessel intrusted to his 
 care. Then, again, it is said that the crew were exhausted : now this 
 is a fact which must have been equally well known to every witness 
 on board ; it was as obvious to the lowest man in the ship as to 
 the master himself, and yet none of them speak of it. One of the 
 witnesses says, "the only reason for the said chip's course being so 
 altered was, that the master was informed by the officer of The Mos- 
 quito, "that there were no pilots to be had at Heligoland.'' I have 
 looked back into the log for four or five days preceding this period, and 
 find that the course of the vessel was as uniirterrupted and as placid 
 as possible ; there is nothing that could have put .the men in the condi- 
 tion here represented, and I must, therefore, take this to be a false repre- 
 sentation in loto. All the reasons, then, which the American 
 master has given *for not putting his ship in the^same situ- [ *202 ] 
 ation as others, fail. Then it is said, that at Heligoland 
 there was only a roadstead ; but the anchorage ground at Heligoland 
 was not worse for him than for the other ships which were lying 
 there ; it is not pretended that his anchors and cables were in any 
 manner defective ; and even if such hadljeen the fact, still he would 
 have. to account for his going to an interdicted port, when others were 
 open to him. The presumption that there was an original intention 
 to violate the blockade of the Ems, is not at all repelled by the mere 
 : circumstance of there being letters for Tonniiigen on board the ves- 
 ' sel : they would easily find their way to that place from Embden. 
 Besides, as the, ostensible destination would of course be held out in 
 the American port of shipment as the real destination, persons resi- 
 dent in America might very naturally be induced to send their letters , 
 to Tonningen by this ship. Upon any view which I am enabled to 
 take of the circumstances of this case, I am fully satiisfied that the 
 reasons offered by the master for carrying his vessel into the Ems are-' 
 not founded in truth ; and if they had been so, I could not have con- 
 sidered them as amounting to a justification of his conduct. 
 
 Ship and cargo condemned. . • 
 
203 CASES DETERMINED IN THE 
 
 The Arthur. Edw. 
 
 The Arthur, Rathburn.' 
 
 February 23, 1810. 
 
 Blockade, breach of; excuse, that the ship went in to procure a pilot for another port, inSuf- 
 
 ficient.2 
 
 This was the case of an American ship bound from Providence, 
 ostensibly to Happens, and captured near the King's Buoy in the 
 Ems, which river the master stated himself to have entered for the 
 purpose of procuring a pilot for the Yadhe. 
 
 [*203] * Judgment. 
 
 Sir William Scott. This American ship, with a valuable 
 cargo on board, was seized on the ground of a breach of the blockade 
 of the Ems. I need not say that it is at all times an unpleasant part 
 of the duty of this court to enforce the rules of blockade, which, though 
 founded in strict justice, are necessarily harsh in their operation. At 
 the same time the court feels it to be a part of its dutj'^, which it must 
 conscientiously and strictly discharge, without departing from those 
 rules which have been already laid down as necessary for the support 
 of this belligerent right. In this case the fact is not denied that the 
 ship was taken in a port which is blockaded, and, therefore, the whole 
 burden of exonerating himself from the penal consequences, lies upon 
 the party. He must showthat he was led there by some accident which 
 he could not control, or by some want of information which he could 
 not obtain. In doing this, he must prove his whole case, and, how- 
 ever innocent his intentions piay have been, he must explain his con- 
 duct in a way consistent not only with the innocence of himself and of 
 his owner, but he must bring it within those principles which the court 
 has found it necessary to lay down for the protection of this bellige- 
 rent right of this country, and without which no blockade can ever be j 
 maintained. The facts in this case are contained in the evidence in^ 
 preparatory, and in the letters found on board. By the letters it 
 appears that there was a very strong inclination on the part of the 
 owners that the cargo should be delivered at Embden, if it should 
 turn out to be an open and permitted port ; and the same inclina- 
 tion is very/ strongly expressed in the instructions which are given to 
 
 1 [Affirmed on appeal, January 26, 1811.] 
 
 2 [See The Charlotte Christine, 6 C. Eob. 101.] ' 
 
HIGH COURT OF ADMIRALTY. 204 
 
 The Arthur. Edw. 
 
 the master, as the *laws of his conduct. The instructions [ *204 ] 
 are in these words : " Should you hear on your passage that 
 the British orders are rescinded, and the ports of Holland open to our 
 trade, you may go to the Texel ; otherwise, instead of going to the 
 port of clearance, you are to proceed to the Eras ; a passage into 
 which river, to the eastward of the island of Juist, is left open by the 
 British order in council of 17th May. Should the whole of the Ems 
 be blockaded specially, you are to proceed to the Yadhe, which river 
 will undoubtedly be left free. Whether you arrive in the river Yadhe, 
 or at either of the other places, we request you to make immediate 
 inquiry for Mr. Samuel Greene, who went in our ship Robert Hale, 
 and was to remain in Europe to transact the business of one or two 
 vessels for our account. By our last accounts he was at Rusterziel, 
 on the Yadhe; but on your arrival we think he may be at Embden 
 or Amsterdam." This being the case, it should by all means have 
 been expressed in the open papers, that the intention was, that the 
 ship should proceed to the Texel or to the Ems, if permitted to do so. 
 These were primarily her ports of destination, and ought not to be 
 dissembled, otherwise the belligerent may be deceived, and his rights 
 eluded. I must observe, also, that a preference so distinctly expressed, 
 is not very consistent with the account given by the master, that his 
 destination was to the Yadhe ; on this, however, I shall not lay much 
 stress, because it is open to the answer which has been suggested by 
 counsel, that upon receiving information of the blockade of the Ems, 
 that which was before only a contingent destination became defini- 
 tive. However, in point of fact, he is found in an interdicted 
 place, and * he must account for his being in such a situa- [ * 205 ] 
 tion most satisfactory. In answer to the third interrogatory, 
 the master admits that he met his Majesty's ship Desiree off the Texel, 
 and was then informed that the Ems was blockaded, except one pas- 
 sage, through which it was physically impossible for him to pass ; so 
 that, if he was in any doubt of the fact before, that doubt was entirely 
 removed. How he got so near to the Texel does not clearly appear ; 
 but, however, there," he. says, "he was informed by the commander 
 of The Desiree, that if he would go to the island of Borkura he would 
 be sure to get a pilot for the Yadhe." He says, "that he lay at 
 anchor off Borkum during the night, where he did not succeed in get- 
 ting a pilot, but was informed by a boat (of what description is not 
 stated) that if he went up the Ems he would there get a pilot for the 
 Yadhe ; and that he accordingly weighed anchor and proceeded up 
 the Ems." On this I must observe, that the small craft of the enemy 
 was the very worst source to which he could refer himself for inform- 
 ation ; any intelligence received from such a quarter, on such a sub- 
 EDW. 13 
 
206 CASES DETERMINED IN THE 
 
 The Arthur. Edw. 
 
 ject, is liable to great suspicion, and could afford no ground of justifi- 
 tion. In his answer to the twenty-ninth interrogatory, he speaks in 
 pretty much the same language ; he says, "that failing in his endea- 
 vors to procure a pilot at Borkum, he went up the eastern Ems for 
 that purpose." Now, in the first place, the fact that such was his 
 real errand to the Ems, is justly liable to great doubt, because it is 
 surely not in the usual course of things that a pilot of one river should 
 station himself in the navigation of another. Still less is it to be 
 
 expected that a pilot, whose bread depends upon employ- 
 [ * 206 ] ment, should be found plying in an interdicted * river, where 
 
 little or no trade was carrying on, and especially when it is 
 to be expected that there would be a constant concourse of vessels 
 elsewhere. If, however, the American master had received such in- 
 formation from the Dutch boat, it is strange he should not perceive 
 the probable fallacy of it ; but supposing this information to have 
 been not improbable, was he at liberty to act upon it in the manner 
 which he did ? I am of opinion he was not. If he had any such 
 expectation, it was not his business to run his ship so many leagues 
 up the river ; he might have sent his boat to the man of war to inquire 
 whether a pilot for the Yadhe could be obtained there ; and if the fact 
 turned out to be so, there certainly could be no necessity for the ship 
 to go up for the pilot, who might without difficulty have been brought 
 down in the boat. He was not at liberty, for any such purpose, to 
 place his ship on a forbidden spot, whither, he had been told, he was 
 not to go ; and, therefore, I think he did not proceed to act upon the 
 information given by the Dutch boat in a lawful manner, if any such 
 was given. I do not see how it can be more permissible to go up to 
 a blockading squadron to inquire for a pilot, than to procure inform- 
 ation relative to the blockade itself. Of the two, it seems less venial, 
 because, in that case, the fact of an actual knowledge of the blockade 
 is admitted ; in the latter, there is, at least, a possibility of ignorance. 
 I am clearly of opinion that, upon the principles already laid down 
 by this court, and from which, however harshly they may operate in 
 individual cases, it cannot recede without a total abandonment of 
 belligerent rights respecting blockade, this ship and cargo must be 
 condemned. 
 
HIGH COURT OF ADMIRALTY. 207 
 
 The Mentor. Edw. 
 
 * Mentor, Williams.^ [ * 207 ] 
 
 March 6, 1810. 
 
 St. Sebastian's — breach of blockade. 
 
 This was the case of an American ship from New York, bound 
 ostensibly to St. Sebastian's, in Spain, or to some other permitted 
 port in that country. On the part of the captors it was suggested, 
 that she was captured in a situation inconsistent with such a destina- 
 tion, and the question was referred to Trinity masters for their 
 opinion. It was admitted by the master that he had deviated from 
 his true course ; but he stated in excuse, that his course was altered 
 on the appearance of the frigate by which he was pursued and taken, 
 as he had received orders from his employers not to speak any vessel 
 during the voyage. 
 
 Judgment. 
 Sir William Scott. Gentlemen, I will not trouble you with 
 many observations upon this case, as it is so entirely involved in 
 nautical considerations, that I must hope rather to derive information 
 from your experience, than to communicate any in return. The ques- 
 tion for you to decide is, whether this ship was really going to St. 
 Sebastian's ; because, if you should be of opinion that such was not 
 her real destination, I am afraid the legal conclusion will be, that the 
 port of her real destination which is dissembled in her papers, is so 
 dissembled because it is one which could not safely be disclosed. All 
 the papers, with the exception of one, certainly hold out a destination 
 to St. Sebastian's ; but still, as it is possible that such documents 
 may be fabricated, the fact of navigation must overpower the 
 result that would arise from the mere consideration of *the [*208 ] 
 papers themselves. The objections which have in this case 
 been made to the sincerity of the destination, are founded not so 
 much upon the conduct of the ship after she had seen the English 
 frigate, which she purposely avoided, as upon her conduct during th& 
 whole course of her voyage. I am very well aware that tlie Atlantic 
 is a wide sea, and that in crossing it a ship may be carried widely out 
 of her due course; in such a voyage variations may easily occur, and 
 such as are perfectly consistent with a fair case. In ordinary times, 
 
 1 [Affinned on appeal, January 26, 1811.] 
 
209 CASES DETERMINED IN THE 
 
 The Mentor. Edw. 
 
 I presume, a ship proceeding on such a voyage would make Cape 
 Ortegal, and even in these disturbed tigjes Cape Ortegal is a very- 
 desirable point to make, particularly with the wind to the southward, 
 as it would bring the ship to a situation where she would be likely to 
 meet with protection from the English cruisers ; it does turn out, how- 
 ever, that this ship is found very much to the northward of that 
 point of land. On these observations, gentlemen, I must submit 
 the nautical question to your judgment ; but I wish also to say a few 
 words upon the instructions which were given to the master by his 
 employers, directing him not to speak to any British cruiser. If these 
 directions are to be taken in their full extent, as authorizing the mas- 
 ters of American ships to fly from British cruisers, it is a practice 
 which, I venture to say, will be attended with very great inconve- 
 nience to American navigation. It must %e understood that every 
 commissioned cruiser has an undoubted right of inquiry, and it is not 
 the arbitrary decrees of the other belligerent that can abrogate it. 
 On strict principle, to defeat that right by evasion might be as 
 
 penal as to resist it by force, though it has not been so held 
 [*209 ] in practice; but certainly it is conduct which is always *to 
 
 be viewed with jealousy, and cannot be set up as an excuse 
 advantageous to the parties, in any matter requiring explanation of 
 their conduct. It has, however, been argued, that the owners were 
 justified in giving these instructions, on the ground that this was 
 necessary, in order to avoid the consequences of the French decrees, 
 imposing the penalty of confiscation on neutral vessels which have 
 submitted to search by British cruisers. But if neutrals are to relieve 
 themselves from the injustice of one belligerent nation by committing 
 a fraud upon the other, they are virtually countenancing and giving 
 effect to those decrees which have been set up in opposition to the 
 right of search. And, therefore, wherever a deviation has been pro- • 
 duced by circunistances of that kind, I do not say it will subject the 
 vessel to condemnation, but it certainly cannot be admitted as an 
 excuse for any such irregularity ; such instructions ought not to be 
 given; not only do they operate most injuriously to the interests of 
 this country, by defeating the right of search, but they afford also a 
 color for a vessel to be found out of her proper course. If the act 
 of submitting to search is to subject neutral vessels to confiscation by 
 the enemy, the parties must look to that enemy, whose the injustice 
 is, for redress ; but they are not to shelter themselves by committing 
 a fraud upon the undoubted rights of the other country. 
 
 Trinity Masters were clearly of opinion that this vessel was not 
 pursuing her course for St. Sebastian's, and the ship and cargo were, 
 consequently, condemned. 
 
HIGH COURT OF ADMIRALTY. 210 
 
 The Pi-ogress. Edw. 
 
 * Progress, Barker.i [ * 210 ] 
 
 March 6, 1810. 
 
 Question respecting salvage on ships recaptured from the French at Oporto, by the allied 
 British and Portuguese army under Lord Wellington. Salvage not given on Poj'tuguese 
 property; on British without distinction as to those cargoes -which had been relanded. and 
 warehoused by the enemy ; value to be estimated at the port of restitution ; on freight, 
 where it is already in the course of being carried.^ 
 
 Judgment. 
 Sir William Scott. There can be no doubt that the recovery 
 of this property at Oporto was in itself highly meritorious, but 
 it does not necessarily follow that the mere fact of recapture, though 
 meritorious, will found a legal claim of salvage. The court must be 
 upon its guard against admitting a construction of law which would 
 lead to very extensive consequences ; and that, too, in a case which 
 certainly presents itself to the court with a novel aspect ; for I do not 
 recollect any instance in which an army, taking possession of a port 
 and town, has applied to this court for salvage on the vessels within 
 that port recaptured. Usually such recaptures have been the result 
 of a conjoint operation of the army and navy. It does not at present 
 appear, in this case, in what manner the navy contributed to effect 
 this service ; that is a matter which is not yet sufEciently in evidence ; 
 I may, however, now express my opinion generally, that under* 
 possible circumstances the army alone might be considered as recap- 
 tors, and might be entitled to sustain a claim of salvage in this 
 court for service done without the cooperation of the naval force. I 
 think I may consider it as decided in fact, that the French had cap- 
 tured these ships, and were actually in possession of them ; it is not 
 necessary to show that they had taken formal possession of each indi- 
 vidual ship, because they had possession of the port itself; and the 
 taking of that which contained the vessels is in effect the 
 same as taking bodily possession of the ships themselves. * It [ *211 ] 
 is likewise clear in point of principle, that it is not neces- 
 sary that it should be primarily the intention of the captor to recover 
 the property. It might not be in his immediate contemplation, per- 
 • haps not even within his knowledge ; and yet if the service is per- 
 formed, if the recovery of the property is the immediate and necessary 
 
 1 [Affirmed on appeal, January 26, 1811.] 
 
 2 [As to freight, see The Do^thy, Foster, 6 C. Eob. 88.] 
 
 13* 
 
212 CASES DETERMINED IN THE 
 
 The Progress. Edw. 
 
 result of what he has done, he will be entitled to salvage. I am also 
 strongly inclined to think, that those parts of the cargoes which were 
 relanded by the French will be subjected to salvage, because it was 
 property taken away jure belli, and the hand of the enemy was still 
 upon it. I cannot think the continuity of its character as cargo is~ 
 dissolved by the mere act of relanding it : it was not delivered over 
 by the enemy to the civil possession of the shippers ; it was not 
 relanded by the owners, but was deposited in' warehouses by the 
 enemy, as property seized on board these vessels, and as such it was 
 again put on board when it was recaptured. The case of The Ooster 
 Ems, which has been cited, was very different ; there the goods were 
 relanded by the owners themselves, and had never been made prize of 
 by the enemy. On these points, therefore, I should have little doubt; 
 but there are others on which I must have further information before 
 I can determine how far the recovery of the property, on the part of 
 the army, can be considered as a recapture. This court cannot go 
 the length of giving a salvage interest in all cases in which a sea port 
 may happen to return to the possession of its rightful sovereign, and 
 the property lying there restored to its rightful owners in consequence 
 of a successful battle. In the West Indies an attack upon an island 
 
 may very properly be considered as a general and combined 
 [ *212 ] attack on all the * ports of the island; the possession of the 
 
 island and of its harbors is the immediate object in contem- 
 plation ; but it cannot be so said of every battle fought upon the 
 .continent of Europe, 'although it may consequentially induce the 
 enemy to abandon seaport towns of which he had possessed himself. 
 The French may be driven out of Spain by a single battle, and yet 
 in such a case it could never be held that salvage was due on all the 
 ships in all the ports of Spain; there must be some limitation. The 
 facts at present are differently represented, and, therefore, the court 
 must have the official account of the operations of the army, in order 
 to see how the claim falls within the limitations by which such 
 claims ought to be restricted. I must have evidence to show that 
 the battle was fought for the reduction of Oporto, and that the opera- 
 tions in its neighborhood were such as can be fairly considered as 
 composing an attack upon the place. I do not mean a direct actual 
 attack, -but an attack directed to that object. I am not disposed to 
 say that there must be an actual seige in order to sustain the claim ; 
 that would be to pursue the principle with a degree of pedantic 
 minuteness in which the court is by no means disposed to indulge. 
 If the case should be brought within this statement, that the opera- 
 tions of the army were directed to that object, there would then be 
 cround sufficient to connect the^fact of the battle with the direct 
 
HIGH COUET OF ADMIRALTY. 213 
 
 The Progress. , Edw. 
 
 recapture of the place ; it can make no difference whether the opera- 
 tion is directed against the town itself, or whether it is conducted in 
 any other manner calculated to produce the same result, according to 
 the best judgments of the persons concerned. 
 
 * JuDGMENa?, resumed. [ * 213 ] 
 
 On the preceding day this cause came before the court 
 very imperfectly instructed with any evidence on which it could found 
 a decision. The persons who were examined spoke with so little 
 certainty as to the necessary facts, that it was almost questionable 
 whether the French had ever taken possession of the property, so as 
 to establish a case of recapture. But I thought that, under all the 
 circumstances, there was sufficient to satisfy the court, that although, 
 in some instances, no actual possession had been taken, yet, that the 
 ships had been sufficiently reduced under the bodily possession of the 
 French army, to entitle them to be considered as captors. The next 
 question is, whether the property was retaken from the enemy, and 
 by what force ; and upon this latter point, I am sorry to say, the case 
 still remains in some degree of obscurity ; for there is no evidence as 
 to the part which the navy took in the recapture. I do not yet find 
 what was the actual contribution of the navy towards effecting this 
 service. Whether they were actually cooperating in blockading the 
 harbor, or whether the men of war did not make their appearance till 
 some time after the enemy had left the place, is not explained. I 
 cannot take the general account that these ships were recaptured by 
 the joint forces of the army and navy, as evidence decisive of the fact, 
 and, therefore, the case is left with this imperfection hanging to it; 
 ■ that it may be a perfectly novel case, for it does not occur to any 
 recollection that I can summon to my own mind, that there has been 
 any claim of salvage before this court for the recapture of vessels in a 
 maritime port by the army alone. All the cases that I can 
 recollect were cases of joint service, but here there *is no [*214 ] 
 proof of cooperation, which is to be regretted ; for, although 
 I do not see upon what principle it can be contended universally, 
 that the claim of the army is not sustainable, it is, at the same time, 
 always desirable to relieve a case from the inconvenience of novelty 
 as much as possible. I do not see why the claim of the army may 
 not be established on principle, if it can be shown that maritime pro- 
 perty in a maritime town has been recovered by its efforts directed to 
 that purpose. Because, upon principle, persons, not in any military 
 capacity, but merely acting as private individuals, if they happened 
 by any successful effort to rescue property from the enemy, would be 
 entitled to salvage ; and I do not see why the individuals composing 
 
215 CASilS DETERMINED IN THE 
 
 The Progress. Edw. 
 
 an army should be placed in a worse situation. And, therefore, if 
 this property should be restored, I do not think the circumstance of 
 its being recovered merely by a land force, would be sufficient to bar 
 the claim of salvage, though it may be a new ingredient in the case. 
 At the same time, the court would think it necessary to circumscribe 
 the extension of any principle dependent upon the operations of any 
 army, for the extent to which it might be carried, is startling, if it 
 could be held that every application of force on land, however remote, 
 should be made the foundation of a claim for salvage. Putting the 
 case which I suggested on the former day, that Lord Wellington, by 
 a general victory, should dispossess the enemy of the whole peninsula, 
 and cause him to evacuate all its maritime towns, it would surely not 
 give a claim of salvage to him and his army on all the ships in the 
 various maritime ports of Spain and Portugal, reoccupied in conse- 
 quence of such victory. The only case, as it appears to me, 
 [*215 ] in which a claim could be sustained, would *be where a 
 seige had actually taken place^ or, at least, where the libera- 
 tion of the property was an immediate and direct consequence of mili- 
 tary operations directed in the vicinity, and with a view to that object. 
 It is not necessary that those operations should be absolutely carried 
 on against the walls of the town ; it is sufficient if they take place in 
 its vicinity, so as to have an immediate influence upon its surrender, 
 and to be evidently connected, and almost identified with, the reduc- 
 tion of the place. It may happen that the same object may be better 
 accomplished by operations at some little distance, and if accomplished 
 in that manner, the court would not undertake to say that that was 
 not a reduction of the place. It would be a narrowing of the princi- 
 ple with a sort of pedantic minuteness, inconsistent with liberal jus- 
 tice. The onus, therefore, which, on the former day, the court threw 
 upon the army, was to show that its movements were indentified 
 with the reduction of Oporto. The Gazette is now brought in, 
 together with the affidavits of Major-General Murray and Brigadier- 
 General Stewart, two officers of high character, who were employed 
 upon that service. As evidence, the Gazette certainly is not liable to 
 objection ; it is the authentic narrative of the proceedings of the army 
 received by government from Lord Wellington, and communicated 
 as such to the public. It was drawn up at the time with no views to 
 self interest, and must be understood to contain as accurate and dis- 
 interested an account, steering as widely from any imputation of 
 improper bias, as can well be imagined. Now, in the Gazette, the 
 reduction of Oporto is stated to be the immediate object of the march 
 from Coimbra. Undoubtedly there were ulterior objects in 
 r * 216 1 view ; it was not at Oporto that * the career of this array, 
 
HIGH COUET OF ADMIRALTY. 217 
 
 The Progress. Edw. 
 
 supposing it to be victorious, was to terminate; but it was one 
 of the primary and most important objects of its march. It is 
 stated, that when the army was known to be in motion, part of the 
 enemy's forces quitted Oporto, and came out to meet tlie combined 
 army. Two or three engagements took place ; the last of which was 
 fought in the immediate vicinity of Oporto. It is obvious, even from 
 the Gazette account, that on the one side and on the other the object 
 of that battle was the possession of Oporto. If the battle was not in 
 urbe, it was fought circa urbem, et propter urbem. But this conclu- 
 sion is greatly fortified by the testimony of General Stewart and 
 General Murray, who state in their affidavits, as a sequel to the Ga- 
 zette, "that the British army, commenced its march from Coimbra 
 on the 7th of May, for the purpose of offensive operations against the 
 enemy, and, amongst other things, more especially to dispossess, and 
 expel the French from Oporto, the recapture and occupation of which 
 place, by the British army, was considered as a point of military im- 
 portance on the operations of the campaign ; that the British army 
 entered Oporto, and gained possession thereof by defeating and driv- 
 ing the enemy therefrom, and the action with the enemy was kept up 
 and continued within the town of Oporto, and five guns were actu- 
 ally seized and taken possession of by the British troops in one of the 
 principal streets, nearly in the centre of the town, the horses belonging 
 to the guns, together with the chief part of their drivers and attend- 
 ant artillerymen, having been first killed and destroyed by the British. 
 That Lord "Wellington, having appointed Lieutenant Colo- 
 nel Trant * governor or military commandant of the place, [ *217 ] 
 he, without loss of time, marched forward in pursuit of the 
 enemy." So that here is a continuation of this battle in the very 
 centre of the town. Whether the French were there in force or not, 
 whether they were many or few, it is clear that they were driven out 
 by the British army ; and that by this means possession was reco- 
 vered of these ships and cargoes. I observe that the despatch which 
 is inserted in the Gazette, bears date at Oporto, on this very day, and 
 there certainly can be no doubt that the contest took place for the 
 possession of the town, and that its reoccupation was the result of 
 the battle ; and, therefore, if the delivery of these vessels was a con- 
 sequence of that reoccupation, the army has a right to be considered 
 as salvors. Whether the French were, on that same day, driven out 
 of the fort of St. John, which commands the entrance of the river, or 
 not, is immaterial, because, if the ships could not immediately leave 
 the river, still they were in a place of security, and in a cbndition to 
 be delivered up to their owners. The restraint on their sailing could 
 only be of a temporary nature, as the French would not be inclined 
 
218 CASES DETERMINED IN THE 
 
 The Progress. Edw. 
 
 to linger long at the fort of St. John, after the capture of Oporto. 
 The only remaining question is, whether the claim of salvage can be 
 sustained for the property which had been relanded ? And I must 
 here adhere to' the opinion I expressed on a former day, that the pro- 
 perty which had been landed and warehoused by the enemy, where 
 it remained to be reclairned by the owners on the recapture of the 
 place, and was again resumed by them, and returned on board as 
 
 parts of the cargoes of these vessels, must be considered in 
 [ * 218 ] * every respect as if it never had been severed. It i's clearly 
 
 advantageous to the claimants that it should be so consi- 
 dered, because, if the property ceased to be a part of these cargoes, it 
 must then have become French property, and would be condemned 
 as prize to the captors. In the case of The Ooster Eems, the pro- 
 perty had been delivered out for the purposes of civil custody ; these 
 are goods which had been seized by the French jure belli ; they still 
 remained as part of these cargoes, and I see no reason to exempt 
 them from any obligations to which the rest of the property is sub- 
 ject. As to the proportion of salvage which is to be given in this 
 case, I am of opinion' that it would not be proper, especially as it is 
 a novel case, to pronounce for a higher salvage to the army than what 
 the legislature has thought proper to prescribe in cases of recapture 
 by the other branch of the public force, and, therefore, in the one case, 
 as in the other, I shall pronounce for a salvage of one eighth. 
 
 Judgment, continued, April 13. 
 I have now to determine, in fact, three points, that were reserved 
 in discussing the question of salvage arising on the property recap- 
 tured at Oporto. The first is, whether any salvage is due upon the 
 Portuguese property ; the second, whether the salvage is to be appor- 
 tioned upon a valuation of the goods taken after their arrival here, or 
 with reference to the value at the place where they were recaptured ; 
 and the third, whether a salvage is due on the freight of ships taken 
 up in this country, and sent to Oporto to bring away these cargoes, 
 which they have been enabled to do by the act of recapture, 
 f * 219 ] I understand that, in * point of fact, the quantity of Portu- 
 guese property that was water-borne at the time when 
 Oporto surrendered to the enemy is very inconsiderable, and, conse- 
 quently, there is but a very small portion of Portuguese interest 
 before the court. But the question is, in itself, of considerable im- 
 portance, from its possible application to other cases that may arise, 
 and therefore it is one which the court is bound to consider with 
 great attention. It has already been determined that all the property 
 in the river Douro had been in the possession of the enemy, and that 
 
HIGH COURT OF ADMIRALTY. 220 
 
 The Progress. Edw. 
 
 it was recaptured in consequence of a battle fought in the imme- 
 diate neighborhood of Oporto, by the allied army under Lord Wel- 
 lington. It has also been determined that the battle, which was not 
 remotely but immediately connected with the liberation of the city, 
 would have the same effect as a regular siege, and that the property 
 in the harbor must be considered as directly liberated by its success- 
 ful result. I do not observe that any claim for salvage is set up by 
 the Portuguese part of the allied army, but that it is entirely con- 
 fined to the British troops. When the matter was argued, I ven- 
 tured to suggest a case to the counsel that seemed proper, for the 
 purpose of putting the question in its simplest form, in order that it 
 might afterwards be seen how far the general rule, when laid down, 
 would be liable to be subverted or modified by additional circum- 
 stances^. The case was that of a native army rescuing a seaport 
 town of its own country from the possession of the enemy. For 
 instance, if, by a misfortune, which it is to be hoped will never hap- 
 pen, the enemy should get possession of London, and be afterward! 
 expelled by a British army, whether that army would be 
 entitled to a salvage on water-borne * property in the port [ * 220 ] 
 of London, recovered by its exertions ? I am of opinion 
 that it would not. The native army, employed by the state and 
 paid by the state for the national defence, if its efforts were success- 
 ful, would be the means of reinstating the sovereign in his rights of 
 sovereignty, and his subjects would be entitled to receive their pro- 
 perty back, as it stood before the irruption of the enemy. The whole 
 would revert instanter to its former owners ; and though the grati- 
 tude of individuals might induce them to offer something, as a volun- 
 tary gift to the army by whose exertions they had been so extensively 
 benefited, yet there is nothing in the nature of the service that could 
 found a claim of salvage. This is a position in which I am fortified 
 by the general practice of mankind; and the practice of mankind 
 forms one great branch of the law of nations. The history of the 
 world has produced no instance, that I recollect, in which a claim of 
 salvage, for the rescue of a capital city by the native army, has been 
 made and allowed ; and, therefore, on principle and on practice, I am 
 warranted in concluding that the claim would not be sustainable. 
 Now that is the state of the transaction in its simplest form ; but 
 suppose allies to be cooperating with the native army in the recap- 
 ture, would the introduction of that additional circumstance effect 
 any alteration in the application of the principle ? The army com- 
 ing as allies, and associated with the native army, compose part of 
 the same body ; they are pursuing the same objects, and stand in 
 every respect on the same footing ; they would have the same rights, 
 
221 CASES DETERMINED IN THE < 
 
 The Progress. Edw. 
 
 and nothing more ; the proportion of force can make no difference. 
 
 Suppose, for instance, one of the maritime towns of this 
 [ * 221 ] country to be taken, and that the enemy is expelled * by a 
 
 Portuguese force, acting in conjunction with the British 
 army. I cannot conceive that such an auxiliary force would possess 
 any other rights than those which attached to the native army with 
 which it was associated. The whole together must be considered as 
 one army in every respect, wherever British property was concerned ; 
 and if the British army would not be entitled to salvage, the army of 
 the allies could claim none. Whether this were the greater army or 
 the less, is of little moment, as I do not think the quantum would 
 make any difference in the application of the rule. It would acquire 
 no more than what the other part of the army would acquire ; and, 
 therefore, if I am right in these principles, e converso a British army 
 sent to Portugal would not be entitled, for it would possess the same 
 rights as the Portuguese army with which it was acting ; and the 
 Portuguese "sovereignty being restored, and the private property of 
 the Portuguese resumed, it would be no more subject to any demand 
 of salvage on the part of the allies than of the native force. It may, 
 perhaps, be thought to militate against this principle that I have 
 pronounced for salvage on the British property at Oporto ', but it 
 appears to me that there is this material distinction, that the libera- 
 tion of British property was not the immediate object for which the 
 British force was sent to Portugal ; the recovery of that by the Bri- 
 tish army^ was a mere casualty, and, therefore, it is subject to the 
 same claim for salvage as British property recaptured elsewhere by a 
 British force ; it is only the application of the ordinary rule between 
 our own subjects. On the Portuguese property I am, therefore, of 
 opinion that no salvage is due. 
 
 The second question which I have to determine is, whether the 
 
 valuation of the property recovered is to be taken here or 
 [ * 222 ] * at Oporto. And I confess that, on the first view of the 
 
 subject, I was disposed to hold that the valuation ought to 
 be made upon an estimate of the actual value of the property at the 
 time when it was rescued from the hands of the enemy ; but, upon 
 further consideration of the words of the act of parliament and the 
 practice of this court, I am of opinion that it is at the place of resti- 
 tution that the value is to be fixed. If the captors permitted the 
 masters of these vessels to take possession at Oporto, it was merely 
 a private arrangement for the accommodation of the claimants ; but 
 the actual and legal restitution is that which the court makes when 
 it pronounces in favor of claim, after the property has been brought 
 in for adjudication. When that is done, according to the phrase- 
 
HIGH COURT OF ADMIRALTY. 223 
 
 The Progress. Edw. 
 
 ology of all the. acts of parliament, the captor is to receive one eighth 
 part of the true value of the goods so to be restored ; and I think I 
 should depart from the principle which the clause of the act has in 
 view, if I were to admit the application of a different rule in this 
 case, merely because the captors had, for mutual convenience, given 
 up the possession of the vessels at Oporto, and had suffered them to 
 be navigated home under the care of their crews. It must be sup- 
 posed that, in suffering them to go away, the captors made only a 
 provisional restitution, subject to all rights, and upon an understand- 
 ing that the valuation should be afterwards determined. The intro- 
 duction of a different rule would be attended with this inconve- 
 nience, that the captors would be induced to bring the vessels them- 
 selves to the port of restitution, and to retain possession of them, 
 subject to all the rights which captors have upon them, and with 
 the probability of great inconvenience to the owners and 
 their cargoes. At the same * time, when I say that the true [ * 223 ] 
 rule is to take the valuation at the place of restitution, it 
 must be understood that the value is to be considered with reference 
 to the moment of arrival in port ; for most undoubtedly the captors 
 can have no right to a salvage on any additional value which the 
 cargo may acquire by the payment of duties and other incidental 
 expenses incurred afterwards. These are adventitious augmenta- 
 tions of the value, which mtist be deducted from the proportion 
 which the captor is to receive, and the registrar and merchants will 
 attend to the distinction. 
 
 The last question which I have to determine is, whether any and 
 what salvage is due upon the freights of those vessels which had 
 been chartered in this country, under an agreement to proceed to 
 Oporto in ballast, for the purpose of bringing home these cargoes of 
 wine, and, in consequence of the recapture, have been enabled to 
 carry that purpose into effect. Now, it is clear that a service has 
 been rendered to the vessels so circumstanced, and it is a service 
 which goes the lengtlfpf putting them in a condition to recover their 
 whole freights, which depend entirely upon their final arrival here. 
 As to the freights of the vessels that were taken up at Oporto, no 
 salvage is asked upon them ; and certainly it could not have been 
 contended that any would be due, as the voyage had not com- 
 menced. But these vessels, which had gone to Oporto, from this 
 country under a charter-party for one entire voyage out and home, 
 and had already performed the outward voyage, were in the course 
 of earning their freights at the time of capture ; they had actually 
 broke ground, as the phrase is, and had entered upon that adven- 
 ture out of which their profits were to arise. While lying in 
 
 EDW • 14 
 
224 CASES DETERMINED IN THE 
 
 The Progress. Edw. 
 
 [ *224 ] the harbor of Oporto *they were in the course of earning 
 their freights ; they were in itinere, and the salvage is as 
 clearly due as if they had been captured at sea. If there had been 
 two distinct voyages, as is sometimes the case in charter-parties, dis- 
 tinguishing the outward from the homeward voyage, the case would 
 have assumed a different aspect ; but where a ship goes out under a 
 charter-party to proceed to her port of destination in ballast, and to 
 receive her freight only upon her return, the court is not in the habit 
 of dividing the salvage. These, therefore, are the determinations I 
 have come to : First, that no salvage is due on the Portuguese pro- 
 perty ; secondly, that the valuation is to be taken at the port of 
 restitution deductis deducendis ; and, thirdly, that where a ship goes 
 out under a charter-party for the voyage out and home, salvage is 
 due upon the whole freight. 
 
 Madison, Frost. 
 
 March 13, 1810. 
 
 t 
 Despatches on board a neutral ship, going from a hostile port to a consul of the enemy, 
 resident in a neutral country, not a ground of condemnation.^ 
 
 This American ship had been captured on her former voyage, by a 
 French privateer, and carried into Dieppe, from whence, after obtain- 
 ing her liberation, she was proceeding in ballast to Baltimore. The 
 compulsion under which the vessel went into the blockaded port 
 being sufficient to exempt her from the penalties of a breach of the 
 blockade, the counsel for the captors now pressed for condemnation, 
 on the ground that among the papers on board were some despatches 
 from the enemy's government, which the mg||er had not delivered 
 up. It was also objected that there were eight passengers 
 [ * 225 ] ' and a small quantity of antimony on board ; and, conse- 
 quently, that the vessel must be considered as coming out 
 with a cargo. 
 
 Judgment. 
 Sir William Scott. Proceedings have been instituted against 
 
 [See The Atalanta, 6 C. Kob. 440 ; The Rapid, Edw. 228.] 
 
HIGH COURT OF ADMIRALTY. 226 
 
 The Madison. Edw. 
 
 this ship on various grounds, and, among others, on the ground that 
 she had sailed from a blockaded port with a cargo and a number of 
 passengers on board ; but it appears that the few articles which she 
 carried do not deserve the name of a cargo, and the passengers are 
 not of a description to affix any hostile character to the vessel con- 
 veying them. The only remaining objection to restitution is, that 
 the ship was carrying despatches from the government of the enemy 
 to America ; and the question is, in what manner this will operate 
 upon the vessel. The court, in several instances, has had occasion to 
 consider the effect of carrying papers of a public nature, and according 
 to the different circumstances of the cases themselves its decisions 
 have been governed, In some it has held, that the conveyance of 
 despatches for the enemy did affix a hostile character to the ship ; in 
 others, attended with circumstances of a different description, it has 
 held that the conveyance of them was not of a criminal nature, and 
 that though the vessel was justly subject to the inconvenience of 
 seizure and detention, it was not liable to confiscation. I have now 
 to consider to which of these two classes the present case is to be 
 assigned. The papers themselves had been transmitted to his Ma- 
 jesty's government, and an application has been made to the secretary 
 of state for information respecting their real character. The manner 
 in which they came on board is stated by the master, who 
 says, in an affidavit, " that he received them from * a person [ * 226 ] 
 who is employed under Mr. Armstrong, the American am- 
 bassador at Paris, and that he understood they came from him." 
 Certainly, if these papers are really of a hostile and illegal nature, it 
 is not in the power of the American ambassador to sanction them, or 
 to protect the conveyance of them. This court has held, in cases of 
 convoy, that even the interposition of the sovereign of a neutral 
 country will not take off the criminality of an illegal act; still less 
 can an ambassador, acting only under a delegated authority from his 
 sovereign, be permitted to assume a privilege so injurious to a 
 belligerent whose rights it is his duty to respect. But the matter 
 turns in this case upon the character of the papers, as far as govern- 
 ment has thought it proper to characterize them. The answer from 
 the secretary of state's office is, that No. 3 contains a despatch from 
 the Danish government to the Danish consul-general at Philadelphia ; 
 and I think I am to infer from this account, negatively, that all the 
 other papers are of an innocent nature. Now I am of opinion, that 
 a communication from the Danish government to its own consul in 
 America, does not necessarily imply any thing that is of a nature 
 hostile or injurious to the interests of this country. It is not to be 
 so presumed; such communications must be supposed to have refer- 
 
227 CASES DETERMINED IN THE 
 
 The Madison. Edw. 
 
 ence to the business of the consul-general's office, which is to main- 
 tain the commercial relations of Denmark with America. If such 
 communications were interdicted, the functions of the official persons 
 would cease altogether. It has been said that this communication of 
 the Danish government with one of its delegates in another country, 
 through the medium of the American minister at Paris, is a matter 
 
 in which the neutral government is not at liberty to inter- 
 [ *227 J .pose and carry on, and that the neutral * government is not 
 
 to concert measures with the enemy, for the purpose of 
 assisting in communications relating solely to his own comme:j:ce. 
 But I take this to be a correspondence in which the American go- 
 vernment is itself interested. A Danish consul-general in America is 
 not stationed there merely for the purpose of Danish trade, but of 
 Danish- American trade ; his functions relate to the joint commerce in 
 which the two countries are engaged, and the case, therefore, falls 
 within the principle which has been laid down in the case of the 
 Caroline, in regard to despatches from the enemy to his ambassador 
 resident in a neutral country. In the transmission of these papers 
 America may have a concern and an interest also ; and, therefore, the 
 case is not analogous to those in which neutral vessels have lent their 
 services to convey despatches between an enemy's colony and the 
 mother country. Here there is no such departure from neutrality as 
 to subject the vessel to confiscation ; yet I cannot help observing that 
 the conveyance of papers of this description for the enemy, by 
 American vessels, is a practice of which they would do well, for 
 various reasons affecting their own safety and convenience, to be 
 more abstemious in the indulgence than the observation of this court 
 enables it to say they are. In this case the favorable presumption 
 arising from the papers is strengthened by the character of the person 
 from whom they were received ; for it is a presumption which I am 
 bound to maintain,- that as the neutral master received these despatches 
 from the hands of the American minister, there is in that circum- 
 stance a guaranty of the innocence of his conduct. This case is 
 clearly not of a nature to call for serious judicial animadversion, and 
 I shall, therefore, restore the ship, giving the captors their expenses. 
 
HIGH COURT OF ADMIRALTY. 228 
 
 The Rapid. Edw. 
 
 Rapid, Fleming.^ • [ * 228 ] 
 
 Maich 21, 1810. 
 
 Despatches from an agent of the enemy on board a neutral ship going from a neutral port 
 to a port of the enemy ; plea of ignorance on the part of the neutral master admitted.^ 
 
 This was the case of an American ship which was captured on her 
 voyage from New York to Tonningen, on suspicion of an intention 
 to push into the Texel. But the question of destination being aban- 
 doned by the captors, they now contended that the case came within 
 the principle laid down by the court in the case of the Atalanta, as it 
 had been discovered, that among the papers given up by the 'master 
 at the time of capture, there was a despatch addressed to the Dutch 
 colonial minister at the Hague, under cover to a commercial house 
 at Tonningen. 
 
 Judgment. 
 Sir William Scott. The question of destination being disposed of, 
 I have now only to consider what will be the legal effect of carrying 
 these despatches ; and as it appears that the practice of conveying pa- 
 pers of this description for the enemy prevails to a considerable extent, 
 I must take occasion to remind the proprietors of neutral vessels, that 
 wherever it is indulged without sufficient caution, they will inevitably 
 subject themselves to very grievous inconveniences. I should cer- 
 tainly be extremely unwilling to incur the imputation of imposing 
 any restrictions upon the correspondence which neutral nations are 
 entitled to maintain with the enemy, or, as it was suggested in argu- 
 ment, to lay down a rule which would in effect deter masters of ves- 
 sels from receiving on board any private letters, as they cannot know 
 what they may contain. But it must be understood, that 
 where a party, from want *of proper caution, suffers des- [ *229] 
 patches to be conveyed on board his vessel, the plea of igno- 
 rance will not avail him. His caution must be proportioned to the 
 circumstances under which such papers are received. If he is taking 
 his departure from a hostile port in a hostile country, and still more, 
 if the letters which are brought to him are addressed to persons resi- 
 dent in a hostile country, he is called upon to exercise the utmost 
 
 1 [Affirmed on appeal, March 9, 18U.] 
 
 2 [See The Atalanta, 6 C. Bob. 440.] 
 
 14* 
 
230 CASES DETERMINED IN THE 
 
 The Rapid; Edw. 
 
 j^ousy with regard to what papers he takes on board. On the 
 other hand it is to be observed, that where the commencement of the 
 voyage is in a neutral country, and it is to terminate at a neutral 
 port, or, as in this instance, at a port to which, though not neutral, an 
 open trade is allowed, in such g. case there is less to excite his vigi- 
 lance, and, therefore, it may be proper to make some allowance for 
 any imposition which may be practised upon him. But when a neu- 
 tral master receives papers on board in a hostile port, he receives 
 them at his own hazard, and cannot be heard to aver his ignorance 
 of a fact which, by due inquiry, he might have made himself ac- 
 quainted with., The party in the present case has the benefit of the 
 favorable distinction : these papers, with some others, were put on 
 board in an envelope, addressed to a person at Tonningen, who was 
 instructed to forward them to Holland ; but of this the master swears 
 he knew nothing. They turn out to be of a public nature, conveying 
 intelligence of importance to the government of the enemy at the 
 Hague; and they begin, I observe, with an assertion which I hope is 
 not true : the writer says, " The letter and accompanying inclosures 
 which I this day despatch to his excellency the minister of 
 [ * 230 ] the colonies, via Tonningen, will, I * expect, be communi- 
 cated to you. I ' trust my conduct will be approved of by 
 his excellency, and that he will please explain himself, both with re- 
 gard thereto as also respecting the contents of my letter to the Mar- 
 shal Daandels. The surest mode of correspondence is by. way of 
 England, or Paris, through the channel of the Dutch minister, as the 
 American minister will not refuse to inclose for him a letter to me in 
 his despatches." 
 
 This, I hope, is rashly and injuriously said; the court cannot bring 
 itself to believe that the accredited minister of a country in amity 
 with this would so far lend himself to the purposes of the enemy as 
 to be the private instrument of conveying the despatches of the 
 enemy's government to their agent. The papers in question come 
 from a person who seems to be invested with something of a public 
 character, though of a peculiar kind, and they are upon public busi- 
 ness, but I do not know whether they come strictly within the defini- 
 tion of despatches. The writer of them had been sent to America from 
 Batavia by the governor, to beat up for volunteers among the Ameri- 
 can merchants, in the hope of inducing them to embark themselves 
 in the trade of that settlement. How far he had been acknowledged 
 by the American government does not appear ; from the contents of 
 the papers themselves he seems to have been stationed in America, 
 not by the government of Holland, but by the Dutch governor of 
 Batavia, rather as a commercial agent to drive a .bargain with indi- 
 
HIGH COURT OF ADMIRALTY. 231 
 
 The Constantia Harlessen. Edw. 
 
 viduals, and to induce them to join in these speculations for the relief 
 of the Batavian trade, than for any purposes of a more diplomatic 
 nature. His commission was such, that it might exist with- 
 out his being * acknowledged as a public accredited minister [ * 231 ] 
 by the American government, and, therefore, the claimant 
 is, perhaps, entitled to the benefit of the distinction which has been 
 taken, that these papers, though mischievous in their own nature, 
 proceed from a person who is not clothed with any public official 
 character. They came to the hands of this American master among 
 a variety of other letters from private persons ; they were concealed 
 in an envelope, addressed to a private person, and were taken on 
 board in a neutral country. These are circumstances which would 
 rather induce the court to consider this case as excepted from the 
 general rule, which does not permit a neutral master, carrying des- 
 patches for the enemy, to shelter himself under the plea of ignorance. 
 In the present instance the American master denies all knowledge of 
 the contents of these papers, and the benefit of that denial will ex- 
 tend to the cargo ; it is not, therefore, a case in which the property is 
 to be confiscated, although in this, as in every other instance in which 
 the enemy's despatches are found on board a vessel, he has justly 
 subjected himself to all the inconveniences of seizure and detection, 
 and to all the expenses of those judicial inquiries which they have 
 occasioned. 
 
 * Constantia Harlessen, Knudson. [ * 232 ] 
 
 April 4, 1810. 
 
 Claim of the owners of cargo to deduct from freight, decreed to the crown, moneys advanced 
 fo the master to enable him to prosecute his voyage.i 
 
 Judgment. 
 Sir W. Scott. The question in this case is, whether the owners 
 of the cargo are entitled to deduct from the freight which had been 
 formerly decreed to the Danish master, and is now claimed by the 
 crown, a sum of money advanced to him under the following circum- 
 stances. It appears that the master who had sailed from Salon, in 
 Spain, with a cargo of brandy, for Varel, overshot the Yadhe, and 
 
 [The Belvidere, 1 Dod. 353.] 
 
233 CASES DETERMINED IN THE 
 
 The Constaiitia Harlessen. Edw. 
 
 got into Arendahl, the port of his owner, in Norway, under some 
 plea of distress ; he there caused the cargo to be landed, and the ship 
 repaired at a considerable expense, and wrote to the consignees of 
 the cargo, stating that a general average had been incurred by da- 
 mage at sea, which would reduce him to the necessity of taking up 
 moneys upon bottomry to enable him to proceed on the voyage. 
 The consignees, who, I suppose, saw no other means of facilitating 
 the passage of their cargo, finding that the money required by the 
 master was less than his freight would amount to, authorized him to 
 draw for the amount on Mr. Hockmeyer, of Hamburg. This was 
 done upon a usage which, from the necessity of the case, I should 
 have supposed to be customary among merchants, even if it had not 
 been certified by affidavit. The nature of the advance is a little in- 
 determinate at the time when it is made, as it cannot then be ascer- 
 tained whether or not any average is due, and as freight is 
 [ * 233 ] not earned until the conclusion of the ' voyage, the final 
 settlement is very properly referred to that period ; because, if 
 it shall turn out that no average was due, or at least not to the extent 
 of the money advanced, then either the whole or part is deducted 
 from the freight on the arrival of the vessel. It is perfectly under- 
 stood that the advance is made by the merchant looking to the 
 freight as his security for this money, let the case turn out as it may ; 
 if average is due, it is understood that it shall be considered as ad- 
 vanced for that purpose : if not, that the money shall be taken as an 
 advance of freight. In the present case the ship, before she was 
 devested of her neutral character, had been captured and brought to 
 Yarmouth ; and freight was decreed to the Danish master by this court. 
 But before the departure of the vessel, Danish hostilities broke out, 
 and the ship was again seized and condemned to the crown, which 
 then succeeded to all the rights of the Danish master against the 
 cargo, and to all the obligations to which he had subjected himself, 
 so far as they arise out of that identical transaction upon which his 
 claim against the cargo is founded. There may be other rights and 
 obligations arising out of foreign and remote transactions with which 
 the crown is not affected ; and upon this principle bottomry bonds 
 have been disallowed, either because they do not arise out of the in- 
 dividual transaction, or, if they do, because the obligation is con- 
 tracted with third persons, and not between the owner of the ship and 
 cargo. But the crown is bourid to take cum onere, though^ not cum 
 onere imwersali; and as the owners of the ship and cargo were enti- 
 tled to set off against each other all deductions arising out of this 
 immediate transaction, the crown, which succeeds to the 
 [ * 234 ] rights of the neutral * master exactly in that porportion in 
 
HIGH COUET OF ADMIRALTY. 235 
 
 The Lady Ann. Edw. 
 
 which he would have possessed them, in accepting those rights 
 is bound to make such deductions as the Danish master would 
 have allowed if he had continued neutral. Then, what was the con- 
 dition of the neutral master, in common justice and by the law mer- 
 chant, as it has been certified to the court? The merchant, who 
 had advanced this money under an uncertainty whether it was ulti- 
 mately to be considered as average or freight, had a right to consider 
 it as an advance of freight, as soon as it became certain by the event 
 that no average was due. The right "of making the deduction could 
 never have been made a question between the master and the owner 
 of the cargo ; and the voyage being now terminated, by capture, as 
 entirely as if the ship had arrived at Varel, the crown can claim no 
 exemption from observing the same conduct. "Where the crown 
 takes to itself the rights of one of the parties against the other, so far 
 as they arise out of the individual transaction, I am of opinion that 
 , , it is to the same extent bound by the obligations of that party to- 
 wards the other, and, therefore, without breaking in upon the princi- 
 ple that the crown is not to regard latent remote claims of third par- 
 ties, arising on foreign transactions, I shall allow the money which 
 had been advanced to be deducted from the freight. 
 
 *Lady Ann, Wardell. [*235] 
 
 May 8, 1810. 
 
 Objection to the competency of the master as a witness in a suit for wages. Overruled. 
 
 Judgment. 
 SiK W. Scott. This question arises on the admission of a de- 
 fensive allegation offered on the part of the owners of this vessel, in 
 opposition to a demand of wages by a mariner. The objection which 
 had been taken is, that the master is not a competent witness, and, 
 consequently, that the owners are not at liberty to plead the letters 
 which they received from him, stating the arrival of the ship in the 
 West Indies, and the desertion of the party who brings this suit. 
 But I am not aware of any general objection to the competency of 
 the master of a. vessel as a witness in a suit for wages. The mariner 
 has his election whether he will proceed against the owners, the mas- 
 ter, or the ship; and in this case the proceedings being instituted 
 against the owners, the masftr has no immediate interest in the suit, 
 
236 CASES DETERMINED IN THE 
 
 The Fortuna. Edw. 
 
 and, therefore, is not an incompetent witness by any rule with which I 
 am acquainted, though it may certainly be necessary to watch his 
 testimony with jealousy, as his conduct may constitute a material 
 part of the adverse case. 
 
 [*236] * Fortuna, Brasch. 
 
 May 8, 1810. 
 Breach of the order in council restricting trade to Heligoland. 
 
 This was the case of a Hanfiburg ship which was captured on a 
 voyage from that port to Heligoland, with a cargo of miscellaneous • 
 articles, and proceeded against for a breach of the order in council of 
 the 31st May, 1809, by which the trade to Heligoland is confined to 
 British ships'. 
 
 On behalf of the claimants it was contended — That the ship and 
 cargo were protected by a British license, which was in the posses- 
 sion of the shipper, who was not on board, permitting a vessel, bear- 
 ing any flag except the French, to proceed with a cargo from Norden, 
 passing eastward of the island of Juist, or from Heligoland, or any 
 port eastward of the island of Juist, as far as the river Eyder, inclu- 
 sive, to any port of this kingdom north of Dover. Subsequently to 
 the capture the license was indorsed for this vessel by the shipper. 
 
 Sir "W. Scott. This is a question respecting the importation of 
 goods from Hamburg to Heligoland. The island, I observe, is not 
 described in the order in council as a part of the dominions of his 
 Majesty, but is spoken of only as being now in his Majesty's posses- 
 sion; and, therefore, it does not stand on the footing of a colony or 
 an established settlement This order in council is of a nature pecu- 
 liar to the circumstances of the place ; its provisions are not 
 [ * 237 ] matter *of municipal regulation, but rather of military and 
 temporary direction, prescribing what the commerce of the 
 place shall be, and the manner in which it is to be approached. 
 Now, it certainly must have been intended that the order should be 
 operative ■ and how it is to be carried into effect without the appli- 
 cation of the authority of this court, I do not see. The jurisdiction 
 of the Court of Exchequer would notf I presume, extend to a port 
 
HIGH COURT OF ADMIRALTY. 238 
 
 The Fortuna. Edw. 
 
 SO constituted ; all that could be done, without the assistance of the 
 Prize Court, would be, to prevent the landing of goods, by means of 
 custom-house officers, if any are stationed there, which I can hardly 
 suppose to be the case ; but as to goods already brought on shore, 
 they might, perhaps, be secure. I cannot, therefore, but think thafcit 
 was intended by liis Majesty's government' that it should lie with\ 
 this court to give effect to the order ; and I am fortified in this opi- 
 nion by the words of the last clause, in which " the Lords of the 
 Admiralty, conjointly with the lords of the treasury, are required to 
 give the necessary directions herein." The provisions of the order 
 are exceedingly strong : — " No foreign vessel (except as before 
 excepted) shall enter into the port, harbor, or road, lying between 
 the island of Heligoland and Sandy Island, and the shoals of the 
 said island, respectively, and commonly called or known by the 
 names of the North Haven and the South Haven, under any pre- 
 tence whatever." These are very unlimited expressions, undoubt- 
 edly ; but it goes on to provide that " no goods, wares, or merchan- 
 dise whatsoever, shall be in any manner put on shore in any part of 
 the said island of Heligoland, from any such foreign vessel, . 
 * or carried from the shore of such island to any such f* 238] 
 foreign vessel, or in any manner transshipped from any 
 such foreign vessel into any vessel lying in the said harbor, port, or 
 road ; or from any vessel lying in the said harbor, port, or road, into 
 any such foreign vessel." Nothing can be more clear than that, 
 under this order, it is not lawful for foreign vessels to go to Heligo- 
 land and transship their cargoes, even into British ships ; it is 
 intended to exclude all access of foreign vessels, unless they come 
 there under his Majesty's special license, or in ballast. Words can- 
 not be more imperative than these, if this court is the organ which is 
 to carry the order into execution. I feel great difficulty in saying 
 that there is any thing in the license which was not on board this 
 vessel that can protect the case. I should be extremely glad to 
 relieve the parties^ if it were possible ; but I do not see how I can 
 escape out of the obligations which the order in council imposes 
 upon me. 
 
 Ship and cargo condemned. 
 
239 CASES DETERMINED IN THE 
 
 The Courtney. Edw. 
 
 [*239] * INSTANCE COURT. 
 
 » Courtney, English. , 
 
 May 25, 1810. 
 Wages ; suit on behalf of American seamen serving on board an American ship.' 
 
 This was a question arising on the admission of a libel, offered on 
 behalf of the mate and seamen belonging to this ship, in a suit for 
 subtraction of wages. A claim being made by them upon the mas- 
 ter, under an act of the American congress, for three mojnths' pay- 
 over and above the wages due to them, in consequence of their being 
 discharged in this country. The libel pleaded the rate of wages 
 and the terms of the voyage in the usual manner ; and also the fol- 
 lowing extract from an act of congress, bearing date 28th February, 
 1803, which was printed at the back of the mariner's contract, enti- 
 tled " An Act supplementary to the Act concerning Consuls and 
 Vice-Consuls, and for the protection of American seamen : " '' And 
 be it further enacted, that whenever a ship or vessel belonging to a 
 citizen of the United States shall be sold in a foreign country, and 
 her company discharged, or when a seaman or mariner, a citizen of 
 the United States, shall, with his own consent, be discharged in a 
 foreign country, it shall be the duty of the master or commander to 
 pay the consul, vice-consul, commercial agent, or vice-commercial 
 agent, for every seaman of mariner so discharged, three months' pay 
 over and above the wages which may then be due to such mariner 
 or seaman ; two thirds thereof to be paid by such consul or com- 
 mercial agent to each seaman or mariner, so discharged, upon his 
 
 engagement on board of any vessel to return to the United 
 [ * 240 ] * States, and the other remaining third to be retained by 
 
 him, for the purpose of creating a fand for the payment of 
 the passages of seamen or mariners, citizens of the United States, 
 who may be desirous of returning to the United States, and for the 
 maintenance of Amejican seamen who may be destitute, and be in 
 such foreign port." The libel then went on to plead that, by a cir- 
 cular order to consuls of the United States, it was directed that " all 
 incidents of a nature calling for judicial redress must be submitted 
 
 1 [The Golubchick, 1 W. liob. 143 ; The Madonna, D'Idra, 1 Dod. 41.] 
 
HIGH COUET OF ADMIRALTY. 241 
 
 ^ The Courtney. Edw. 
 
 to the local authorities." The libel concluded with praying the 
 court to declare the monthly wages to be due and payable, and also 
 to decree three months' advance pay over and above the said wages 
 to be paid to William Lyman, Esq., consul-general of the United 
 States, resident in London, to be by him applied pursuant to the 
 said act of congress. • 
 
 Judgment. 
 
 Sir W. Scott. This is the first case of the kind which has been 
 brought to the notice of the court, and I certainly feel great difficulty 
 respecting the admission of the libel. We know the language 
 which has been occasionally held in the courts of common law, with 
 respect to the jurisdiction which this court exercises in cases of 
 mariners' wages. Suits for wages, due to mariners of our own 
 country, have been said to be entertained by the Court of Admiralty, 
 more from a kind of toleration founded upon the general conve- 
 nience of the practice, than by any direct jurisdiction properly 
 belonging to it, although the exercise of such a jurisdiction has 
 existed from the first establishment of such a court. In 
 various instances, in order 'to prevent a failure of justice, [*241 ] 
 this court has gone a step further, and, as wages are due by 
 the general maritime law, however modified by the particular regu- 
 lations of different countries, it has, with the consent of tlje accre- 
 dited agents of their own government, entertained proceedings for 
 wages, at the suit of foreign seamen, against foreign vessels in 
 which they have served, such vessels being in the ports of this king- 
 dom. But here the other part of the claim does not arise out of the 
 general maritime law, but merely out of a municipal law of the 
 United States; and I should find great- difficulty in considering this 
 recital of the act of congress as any part of the contract, as it is only 
 printed on the back of the instrument, and is not at all referred to 
 therein. 
 
 Court took time. 
 
 On a subsequent day the court said — With respect to the wages, 
 I am so far willing to entertain the suit, with the consent of the 
 representative of the United States ; but I do not think I have juris- 
 diction' to enforce a municipal regulation of that country. Had I that 
 power, I should be glad to do it in the present instance ; but I think 
 the probable effect of this court entertaining it in its present form would 
 be a prohibition. At the same time, it appears to me that, if the 
 regulation were embodied in the contract, so as to compose a part of 
 
 EDW. 15 
 
242 CASES DETERMINED IN THE 
 
 The Johan and Siegmund. Edw. 
 
 it, the court might be empowered, in that case, to carry it into full 
 effect, as an article of the contract between the parties. 
 
 [*242] * INSTANCE COURT. 
 
 Johan and Siegmund, Niegel. 
 
 June 5, 1810. 
 
 Possession, cause of. Suit not entertained by the court in the case of a foreign shipA 
 
 This was the case of a Hamburg ship, which had been arrested 
 in the port of Plymouth, at the suit of C. F. Grantoff, of London, 
 merchant, as the lawful attorney of C. Storzell and others, all of 
 Hamburg, and described as the owners of fifteen sixteenths shares of 
 the ship, in a cause of possession against'the master, also of Ham- 
 burg, and owner of the remaining sixteenth part. 
 
 Judgment. 
 Sir W. Scott. This is a cause of possession, at the suit of a 
 number of persons, who hold fifteen sixteenth shares of this vessel, 
 against the master, who is the owner of the remaining sixteenth. If 
 this were a British ship, there can be no doubt that, by the practice 
 of this court, it would, upon the application of a majority of the par- 
 ties interested, proceed to dispossess the master, though a part-owner, 
 without minutely considering the merits or demerits of his conduct. 
 But I do not know of any instance in which the Court of Admiralty 
 has entertained a suit of this nature, in the case of a foreign ship. 
 The court, with the consent of the parties, and of the accredited 
 agent of the country to which they belong, certainly does hold plea 
 of causes between foreigners, arising on the jus gentium; but this, I 
 
 think, is a case which cannot be so considered, because 
 [ * 243 ] whatever may have * been the general rule under the old 
 
 civil law in cases of possession, it has been variously modified 
 by the municipal law of different countries ; and, therefore, by enter- 
 
 1 [See The See Ruyta, 1 Dod. 22 ; The Golubchick, 1 W. Kob. 143.] 
 
HIGH COURT OF ADMIRALTY. 244 
 
 The Cornelia. Edw. 
 
 taining this suit, I might deprive the parties of those rights to which 
 they are entitled by the law of their own country, as administered in 
 those courts to which they are directly and properly amenable. By 
 the law of this country, as understood and applied by this court, the 
 majority of owners are entitled to the possession ; it is not so by the 
 law of some other countries ; what may be the law of Hamburg, 
 I cannot tell : but I might be guilty of great injustice if I were to 
 take upon myself to apply the local regulations of this country to the 
 case of a Hamburg ship. By the law of Hamburg, the master may 
 have a paramount right, as owner in possession, or he may have a 
 right to retain the possession as a security for his wages, or for the 
 payment of accounts outstanding between him and the other owners ; 
 in short, there may be the greatest diversity in the law of different 
 countries upon this subject. I am very sensible that great inconve- 
 nience may arise to the owners of foreign vessels from the want of a 
 competent jurisdiction in the country where the ship happens to be ; 
 the master may be roving about from the port of one country to 
 another, and it may be extremely difficult for the rest of the owners 
 to pursue him with effect by any process that the courts of his own 
 country can furnish. It is difficult to suggest the remedy in such a 
 case, but I am of opinion that the defect cannot be supplied by this 
 court, as the right of possession has not been left to depend upon the 
 general maritime law of nations, but has been variously settled in the 
 different maritime codes of different countries. 
 
 * Cornelia, Roose. [*244] 
 
 (Formerly the Nautilus of Sunderland.) 
 
 June 5, 1810. 
 
 Prize vessel ; sale of to neutral, trader a sentence of condemnation ; former British owner 
 
 deyested. 
 
 This ship, under Prussian colors, was captured on a voyage from 
 Boulogne to Varel, in ballast, with a British license on board, and 
 carried into the port of Dover. 
 
 The present question arose on a claim for restitution on salvage 
 given on behalf of Thomas Nicholson, of Bishopswearmouth, as the 
 former British owner ; the vessel having been seized by the enemy 
 upon the commencement of hostilities. 
 
245 CASES DETERMINED IN THE 
 
 The Cornelia. Edw. 
 
 Judgment. 
 Sir William Scott. I think there is little doubt that the ship 
 did originally belong to these British clairnants ; but the question is, 
 whether, under all the circumstances of the case, they are entitled to 
 restitution. If, at the time when this vessel was taken, it was clearly 
 in the possession of the enemy, they would have a right to receive 
 their property again, whether there had been a sentence of condemn- 
 ation or not ; because such sentence operates nothing against th» 
 rights of the British owner. But if, under the authority of a sentence 
 in the enemy's court of prize, there has been a sale of the vessel to a 
 neutral, that sale, which transfers the property to the neutral pur- 
 chaser, will bar the claim of the original British owners against the neu- 
 tral holder. This ship, I observe, was seized in the harbor of 
 [ *245 ] Boulogne upon the * breaking out of the war, and there can 
 be very little doubt that, prior to the sale,. a sentence of con- 
 demnation had passed; the law is not at any time forward to pre- 
 sume any unnecessary departure from established modes of proceed- 
 ing ; and, in this instance, the presumption is strengthened by the 
 length of time during which the vessel lay in the enemy's port. A 
 sentence of condemnation was found on board the vessel, which has 
 been exhibited, but it turns out that it refers to a ship called The Ade- 
 laide, of Quebec ; whereas this ship is called The Nautilus, of Shields. 
 No doubt this is a startling circumstance, but I cannot undertake to 
 say, that if it were possible to get at the whole of the history of the 
 vessel, the circumstance might not be satisfactorily accounted for. 
 Taking it, therefore, on the presumption that a sentence of condemn- 
 ation has passed, is there any sufficient evidence of the fact of trans- 
 fer ? I think the circumstances are such as would very much leave 
 it a case of further proof, if the neutral purchaser were now in the 
 cause ; because the principal point that arrested the a-ttention of the 
 court was, the very little intercourse that had subsisted between the 
 master and the asserted neutral owner. But further proof cannot, in 
 this instance, be obtained, because any call that might be made upon 
 the asserted purchaser at Embden would not be answered, as he has 
 no further interest in the question, the license not being of a nature 
 to' protect a voyage of this description. The court, therefore, must 
 look to the ostensible "character of the vessel at the time of capture ; 
 she is under the Prussian flag and pass ; she has the insignia of Prus- 
 sian property ; and under the defect of evidence, which before would 
 only have made it a case of further proof, I must consider it 
 r * 246 ] as * Prussian property. At the same time I think the former 
 owner was justified in asserting his claimj and I shall allow 
 him his expenses, but the ship must be condemned to the captor, who 
 succeeds in this case to all the rights of the neutral purchaser. 
 
HIGH COURT OF ADMIRALTY. 247 
 
 The Friends. Edw. 
 
 The Friends, Creighton. 
 
 July 28, 1810. 
 Question as to freight, the voyage not being completed ; a riioiety given.* 
 
 Judgment. 
 Sir William Scott. This was the case of a British vessel which 
 had been chartered at Campeachy, for the purpose of delivering a 
 cargo at Lisbon. The ship had successfully prosecuted her voyage 
 to the very entrance of the Tagus, when she was warned off by , the 
 blockading squadron. Upon receiving this intimation she continued 
 for some days with the fleet, but a gale of wind coming on, which 
 blew her out to sea, she was picked up by a Spanish privateer, and 
 was soon afterwards retaken by a British cruiser, and carried to Ma- 
 deira, where the ship and cargo were sold by thp recaptors to pay the 
 salvage. A claim has since been given for the ship and cargo, which 
 was decreed to be restored, and the court has now to consider what 
 freight is due under the circumstances of the case. On the part of 
 the owner of the ship it is contended that the whole of the freight is 
 due, as the ship had actually gone up to the mouth of the port to 
 which she was destined. On the part of the owner of the cargo it 
 was contended that no freight is due, as the cargo was not delivered 
 according to the terms of the charter-party. Several cases 
 from the courts of common law have been cited, but I *con- [ *247 ] 
 fess it does not appear to me that any principle is to be 
 extracted from them that is applicable to the present question, although 
 I should have thought that some cases of British ships which had 
 come up to the _very port of their destination, and were prevented 
 irom discharging their cargoes there, by the act of the sovereign 
 authority of their own country, must have occurred in those courts, 
 among the multiplicity of cases which the present extended system 
 of blockade has given rise to. In the case of the American ships 
 bound to France or Holland, which were brought into the ports of 
 
 1 [For cases as to allowing freight where voyage is not completed, see The Fortuna, 
 Edw. 56 ; The Prosper, Edw. 72 ; The Copenhagen, 1 C. Rob. 289 ; The Kace-horse, 
 3 C. Kob. 101; The Hiram, 3 C. Kob. 180; The Diana, 5 C. Rob. 67; The Vrow 
 Anna Catharina, 6 C.Rob. 269; The Ann Green, 283 ; The Commeroen, 1 Gall. 264; 
 S. C. on Appeal, 1 Wheat. 382 ; The Society, 9 Cranch, 205 ; The Hoffnung, 6 C. Rob. 
 231.] 
 
 15* 
 
248 CASES DETERMINED IN THE 
 
 The Friends. Edw. 
 
 this country under the prohibitory law, the full freight was pronounced 
 to be due where the owners of the cargoes elected to sell here ; where 
 they did not elect to sell here, the court left it to them to settle the 
 freight with the owners of the ships. The court considered a voyage 
 from America to this country very nearly the same in effect as a voy- 
 age to those contiguous countries to which those vessels were origin- 
 ally destined ; in all probability the markets of this country were not 
 less favorable than in the blockading ports, and no doubt the sale 
 was effected with every attention to the interests of the owners of the 
 cargo. In those cases, the court gave the master the full benefit of 
 the freight, not by virtue of his contract, because, looking at the char- 
 ter-party in the same point of view as the courts of common law, it 
 could not say that the delivery at a port in England, was a specific 
 performance of its terms. But there being no contract which applied 
 to the existing state of facts, the court found itself under an obliga- 
 tion to discover what was the relative equity between the 
 [ * 248 ] parties. This court sits no more than the courts of * com- 
 mon law do to make contracts between parties ; but as a 
 court exercising an equitable jurisdiction, it considers itself bound to 
 provide, as well as it can, for that relation of interests which has 
 unexpectedly taken place under a state of facts out of the contempla- 
 tion of the contracting parties in the course of the transaction. The 
 present case is marked with peculiar misfortune, because here, after 
 the ship had been stopped by the blockading force, she was blown 
 out to sea, and being subsequently taken out of the hands of the 
 master, she was carried by the Vecaptors to a distant port, and there 
 sold, together with her cargo, at a great* loss. In this case, therefore, 
 loss is unavoidable, and the only question is, upon whom the weight 
 of it shall fall ; now if the incapacity of completing the voyage could 
 be exclusively attributed to one of the parties, it would be proper that 
 the loss should fall there ; but the fact is, that the calamity is com- 
 mon to both, for both ship and cargo were equally affected by the 
 blockade. The ship could not have entered the interdicted port in 
 ballast, any more than the cargo could have entered it in any other 
 vehicle. The loss arises from the common incapacity of the one and 
 of the other ; I think, therefore, that what equity would suggest is, 
 that the loss should be divided ; and, undej these circumstances, I 
 shall direct a moiety of the freight to be paid. 
 
HIGH COURT OF ADMIRALTY. 249 
 
 The Courier. Edw. 
 
 *CouRiEK, Erick. [*249] 
 
 June 19, 1810. 
 
 Breach of order, 7th Jan. Permission given by British officer to proceed, not a ground of 
 
 protection.! 
 
 This ship had sailed on a destination from Pillau to Colberg, but 
 the master, in the course of the voyage, entertaining doubts as to its 
 legality, applied to the commander of a British cruiser, who gave 
 him permission to proceed. It was contended, on behalf of the claim- 
 ants, that although this was a prohibited voyage under the order of 
 17th January, 1807, the permission given by a British officer was suf- 
 ficient to entitle the case to a favorable distinction. 
 
 Judgment. 
 Sir William Scott. So long as these orders in council exist, 
 they are to be expounded and applied by this court ; and if they 
 press with any unnecessary severity on the commerce of other coun- 
 tries, that may be matter very proper for the consideration of his 
 Majesty's government ; but this court must proceed upon general 
 rules of interpretation. The order in council prohibits neutral ves- 
 sels to trade between ports from which the British flag is excluded ; 
 • and, under that authority, this court held that the trade between one 
 Prussian port and another was illegal. If that interpretation was 
 erroneous, it ought to have been corrected by an appeal ^to the supe- 
 rior court, or, if it was calculated to extend the restrictions of the 
 order beyond what was intended, it should have been represented to 
 his Majesty's government, for certainly, as the order stands at pre- 
 sent, it does appear to me to admit of no other interpreta- 
 tion. * The other conclusion at which the court arrived was [ * 250 ] 
 that vessels are not to call for orders at an interdicted port ; 
 and although that rule may press hard in particular cases, and per- 
 haps in this, yet if vessels were suffered to touch at ports where they 
 are not at liberty to trade, it would enervate the whole effect of the 
 prohibition, because it would be impossible to devise any means by 
 which they could be prevented from delivering their cargoes there. 
 In this case there certainly do appear to be some circumstances 
 which indicate an intention on the part of the master of coming on 
 
 [The Comet, Edw. 32.] 
 
251 CASES DETEEMINED IN THE 
 
 The Courier. Edw. 
 
 to this country after touching at Colberg, but the fact is, that, at the 
 time of capture, the ship was actually going to a Prusftan port. 
 Then, what is there to take the ease out of this peril ? Nothing. It 
 is clear that, in the original intention of the owners, this cargo was to 
 be sent on a prohibited voyage ; the master, after he had got to sea, 
 became doubtful as to the propriety of proceeding, and made inquiry 
 of a British cruiser, whose commander very improperly gave him a 
 permission to go on. But it is not the mistaken exposition of this 
 British officer that will alter the law of the case ; the court has allowed 
 inisinformation upon a point of fact to be a fair ground of indul- 
 gence ; but upon a question of law, the neutral is to look to other 
 sources for instruction. In this case, indeed, the officer does not as- 
 sume the right of interpreting the law, but he assumes a right which 
 he is as little possessed of, that of superseding the order in council, 
 by giving this vessel permission to go to the interdicted port. I do 
 not say a case might not occur in which the court would be disposed 
 
 to hold an officer in his Majesty's service authorized to as- 
 [ * 251 ] sume such a power, but it must be a case of * necessity ; as, 
 
 for instance, where a ship is in absolute want of provisions, 
 or is otherwise incapable of proceeding to an open port, and where 
 the necessity alone, without such permission given, would be a suffi- 
 cient justification. Now, it is not pretended that this is such a cas^ : 
 all that the certificate of the British officer says, is, " I have permit- 
 ted this vessel to proceed from Pillau, with her cargo, to Colberg." 
 Did he possess any authority to grant such permission, in the very 
 face of an order in council ? It cannot be. I am very sorry that this 
 conduct in the British officer has had the effect of misleading the 
 master of the vessel ; but, at all events, his owners have not been 
 deceived ; theirs was the original purpose of sending the vessel to an 
 interdicted port, and from which purpose they had never departed. 
 At the same time, it is not without some degree of pain that I con- 
 demn this ship and cargo, as proceeding to an interdicted port under 
 an insufficient authority. 
 
HIGH COURT OF ADMIEALTY. 252 
 
 The Charlotta. Edw. 
 
 * Charlotta, Elliot. [ * 252 ] 
 
 June 26, 1810. 
 Breach of blockade — alleged distress — excuse admitted.^ 
 
 Judgment. 
 Sir William Scott. This case has already been before the court 
 once or twice, and I have now come to the determination to permit 
 the attendance of Trinity masters. It is the case of an American 
 ship which was proceeding on a voyage from Boston to Petersburgh, 
 and put into the Texel in distress. At the former hearing I was 
 much inclined to hold that, although a vessel going into a blockaded 
 port would be subject to condemnation, the legal presumption that 
 she is going in there for the purposes of trade, was ousted by the fact 
 of her being taken coming out without having delivered her cargo. 
 But I think that the case, in the first instance, is fit for further in- 
 quiry, because, if it shall turn out that the ship went in for the pur- 
 pose only of getting repaired, and that the port of the Texel was a 
 fair port to make, with reference to the alleged distress, the case will 
 be entitled to be favorably considered. If, on the other hand, it 
 should appear that there was no such necessity, the legal presump- 
 tion will be, that she actually went in there for the fraudulent pur- 
 pose of delivering her cargo ; and it is not her having come out again 
 without executing that purpose, owing to some unexpected change 
 of circumstances, that will entirely remove the illegality. At present 
 the court has no absolute constat that the vessel came out with the 
 original cargo, as it has not been inspected ; but supposing the fact 
 to be that the cargo remains the same, but that she went in 
 meaning to dispose of * it, and there found the rigor of the [ * 253 ] 
 French decrees, or the disadvantages of the market, to be 
 such as to frustrate the intention, in that case the delinquency of 
 a fraudulent intention has actually been consummated, and the ves- 
 sel would be subject to confiscation. I am, therefore, desirous to 
 look a little further into the case, in order to know whether her going 
 into the Texel, after passing by all the intermediate ports between 
 the island of Sylt and that place, was a step which, under the cir- 
 cumstances alleged, ought naturally to have been taken. The mas- 
 ter states in his deposition, " that having passed the Texel, and made 
 
 1 [The Hurtige Hane, 2 C. Bob. 124.] 
 
254 CASES DETERMINED IN THE 
 
 The Acteon. Edw. 
 
 the island of Sylt, he was driven back by stress of weather, and com- 
 pelled to put into port." I think, therefore, that I see enough in the 
 case to make it not improper to require the attendance of Trinity 
 masters, in order to ascertain how far the Texel was fairly a prefera- 
 ble port, under all the circumstances of the case. Certainly it is a 
 port which ought 'not to have been resorted to unless under the clear- 
 est necessity. 
 
 On a subsequent day, the Trinity masters gave it as their opinion, 
 that the deviation was necessary, and that the Texel was fairly a pre- 
 ferable port, as the state of the wind made it impossible for the ship 
 to proceed to Gottenburgh, and there were circumstances which 
 made the ports in the neighborhood of Sylt objectionable. This be- 
 ing a sufficient justification, the ship and cargo were ulimately restored. 
 
 [ * 254 ] * AcTEON, Mason. 
 
 July 24, 1810. 
 
 Salvage on American vessels recaptured from the Prench not having certificates of origin 
 
 on board.! 
 
 Judgment, 
 Sir William Scott. This is a case which involves the question 
 whether these American ships and cargoes which were not proceed- 
 ing to French ports, are liable to pay salvage on recapture by British 
 vessels out of the hands of the enemy. The principle to which this 
 court adheres is, that no salvage is due where a service is not actu- 
 ally performed, or where loss was not highly probable. It has been 
 contended by Dr. Dodson, that salvage is due upon American pro- 
 perty on a principle of reciprocity, and a case has been cited by him 
 from Dallas's 2 reports of- cases adjudged in the courts of the United 
 States of America, for the purpose of showing that it is the practice 
 of those tribunals to decree salvage on neutral property rescued from 
 the possession of French captors. It was the CE^,se of a Hamburg 
 ship which had been captured in the course of a voyage from Cal- 
 cutta to the port of her owners by a French national corvette, and 
 
 1 [The War Onskan, 2 C. Rob. 299.] 
 
 2 Talbot V. The Ship Amelia, 4 Dallas, p. 34. 
 
HIGH COURT OF ADMIRALTY. 255 
 
 The Acteon. Edw. 
 
 was afterwards retaken by a ship of war belonging to the United 
 States, and carried to New York. By a decree of the supreme court 
 at Washington, the ship and cargo were restored to the neutral claim- 
 ant, on payment of one sixth part of the net value for salvage ; and 
 from this it seems, at first sight, as if the Americans considered the 
 rescue even of a neutral vessel, from the possession of a French cap- 
 tor, as a sufficient ground for salvage. But I think it is open to this 
 explanation, that the case went not upon the general princi- 
 ple, but upon the irregular * administration of maritime law [ * 255 ] 
 in the French courts of admiralty at that time, by which 
 a vessel once in the hands of a French captor, whether neutral or 
 not, would be in danger of confiscation. I cannot, therefore, take 
 this case as furnishing a rule on which this court can rely for giving 
 salvage on American property rescued from the possession of the 
 French, on any principle of reciprocal justice. 
 
 In the early part of the last war, the court held, that though Ame- 
 rica was not in a state of actual and entire warfare with France, yet 
 that American property recaptured was subject to salvage, on the 
 ground that such was the rapacity of the enemy that no Vessel had a 
 chance of being liberated from their courts of prize, under their known 
 disregard to all neutral claims. In that state of qualified hostility, 
 (for war had not been declared by France against America,) the de- 
 mand of salvage was very readily submitted to by the Americans, 
 and the service of recapture thankfully acknowledged. Upon the 
 breaking out of the present war, an expectation was entertained that 
 the French courts of admiralty would revert to the genuine principles 
 of maritime law, and, therefore, this court did not give salvage on 
 the recapture of American property. But if tiiis expectation was 
 cherished for a short time, it soon became notorious that the French 
 government had long since rendered it abortive. France has fulmi- 
 nated her decrees against the commerce of the whole world, and has 
 even compelled this country, defensively, to have resort to measures, 
 which abstractedly and originally, would be unjust in the highest de- 
 gree. In the present case, the ground assigned by the captor for the 
 claim of salvage is, that there are no certificates of origin on board 
 this vessel, and much* discussion has taken place upon the 
 question, whether or not this * requisition was confined to [*256 ] 
 ships navigating to the ports of France. Certainly, looking 
 to the terms of the original decree, it would seem that it was so con- 
 fined ; but it has been understood in practice to apply to all com- 
 merce, and it is clear that it has been so understood by America 
 herself, for many ships of that country have been brought in, on board 
 of which these certificates have been found, though they were destined 
 
257 CASES DETERMINED IN THE 
 
 The Acteon. Edw. 
 
 to neutral ports. In the exposition which this country gives of the 
 French decrees in its orders in council, it is evident that his Majesty's 
 government is persuaded that they are invariably required, whatever 
 be the ports to which they may be destined. Amidst the fluctuating 
 and capricious practice of the prize courts of France, it is difficult to 
 say, with any degree of confidence, whether the requisition extends 
 to vessels destined to neutral ports, or whether it is confined to ves- 
 sels coming to French ports. It is objected to the captors, however, 
 that the onus lies on them to adduce positive evidence that such a 
 rule has obtained universally in the French courts, notwithstanding 
 the restricted terms of the decree ; and I admit that this demand is 
 not unreasonable. There are, however, two cases in which the cap- 
 tor may so far discharge himself as to throw the burden of proof on 
 the other side : the first is, where he has produced strong analogical 
 proof on which the court may venture to found a reasonable presump- 
 tion that no such rule obtains ; secondly, where he has produced a 
 certain degree of proof, and where no proof is adduced by the claim- 
 ants in opposition to it, they having it in their power to produce direct 
 evidence in'opposition, if the facts would enable them so to do, as they 
 
 possess greater facilities of information. In such cases, the 
 [*257 ] court is bound to say that the captors have satisfied* the 
 
 requisitions of the law, and that there is that moral proba- 
 bility which will justify the conclusion. I think the observation of 
 Dr. Lushington correct, that I am not to consider what would have 
 been the fate of this ship if she had reached Tonningen, but what 
 would have been her fate if the enemy had carried her into a French 
 port. From the import of the decrees themselves, I think it appears 
 to be the policy of France to require that her allies shall exercise the 
 same measure of hostility against the common enemy as she herself 
 does. That, indeed, is a general principle of the law of war ; this 
 country adopts the same policy, and confiscates the property of allies 
 trading with the enemy without a license from their own government, 
 just as it does British property in like circumstances ; and France 
 certainly has never been behindhand in her expectations of this reci- 
 procal assistance from her allies. She has gone the length of consi- 
 dering the ports of her allies as being no less subservient to the pur- 
 poses of these French regulations than her own ports ; and those 
 allies seem to have evinced a weak, unprincipled submission in this, 
 as in every other instance. What is the language of the Neapolitan 
 papers^ which are now before the court? A number of American 
 
 1 See Appendix for papers invoked in the case of The Galen v. Bowden. 
 
HIGH COURT OF ADMIRALTY. 258 
 
 The Aoteon. Edw. 
 
 ships had arrived at Naples upon the faith of a decree issued by that 
 government, assuring them of the liberty of disposing of their cargoes 
 in that«port, on the condition of exporting the produce of that king- 
 dom ; they were immediately seized by the French and Neapolitan 
 ships of war, and were afterwards confiscated. The American con- 
 sul remonstrated ; and the Neapolitan minister for foreign affairs, in 
 his answer, says : " The king has not seen without sorrow the small 
 conformity which is found between the representations made 
 in the remonstrance, and the principles adopted by the [ * 258 ] 
 government of the United States, and manifested in its reso- 
 lutions, contained in the act of the 1st of March last year, against the 
 commerce of France, and the States attached to the political system 
 of the French empire." Here, then, the French empire, and the 
 nations attached to the political system of France, are completely 
 identified] the ships which were seized at Naples, were proceeded 
 against at Paris, which could be upon no other ground, than that 
 France' considers the ports of her allies as subject to the same degree 
 of injurious restriction as her own. If that is the case, and if this is 
 the manner in which France dictates the law of war to her allies, 
 respecting the -cofiduct which they are to observe towards the com- 
 mon enemy, though I cannot take upon myself to say absolutely that 
 the absence of a certificate of origin in these cases would have led 
 to condemnation, because the conduct of the courts of France, acting 
 under the direction of the government, is so irregular as to leave no 
 certain ground of conjecture as to the application of almost any prin- 
 ciples whatever, yet I may safely venture to assert, that no man can 
 suppose that the want of such a document would not be highly dan- 
 gerous. I observe that the American consul at Hamburg considers 
 these decrees as applying universally ; he says in his letter addressed 
 to the masters of the American ships bound to Hamburg, " In the 
 present unprecedented crisis, such great and almost daily changes 
 take place, and the measures of the belligerents affecting commerce 
 are put into such immediate operation, that it is impossible for the 
 most prudent to avoid the injuries which, on every side, lie in wait 
 for fair neutral trade." Now, this is an observation which 
 cannot be intended "to apply to the regulations of this [*259] 
 country ; because, be their operation what it may, the fact is 
 notorious, that proper time is always allowed to put neutral mer- 
 chants on their guard. But he goes on to say, that "the French cus- 
 tom-house officers, or douaniers, without any official intimation to 
 the foreign agents here, have some time since, in virtue of an imperial 
 decree, applied the commercial regulations and laws of France to the 
 trade of this city, and without any exceptions, require certificates of 
 'edw. 16 
 
260 • CASES DETERMINED IN THE 
 
 The Acteon. Edw. 
 
 origin, signed by the French consul at the place of shipment, for all 
 articles attempted to be introduced here." Of this promptitude in 
 the proceedings of the French government, the very next papei^ which 
 is addressed by the French consul at Brfemen to the president of the 
 senate of that city, furnishes an instance. His letter begins in these 
 words : " I am eager to inform you that it is the intention of his Ma- 
 jesty the emperor and king, my august sovereign, that all navigation 
 upon the "Weser be prohibited. It is- his Majesty's desire that all 
 vessels, even French, entering the port of the Weser, be stopped, pro- 
 vided they are wholly or partly laden with colonial , produce, or any 
 other goods of whatever kind that England can furnish : the goods 
 are to be put under sequestration, and taken in charge until new 
 orders. Vessels laden solely with merchandise, which it is impossi- 
 ble England can furnish, are to be exempted. I am finally ordered 
 to take the most efficacious measures, that the intentions of his Ma- 
 ■ jesty may be strictly and immediately fulfilled. I am now occupied 
 in executing those orders, and hasten to warn you thereof, in order 
 ■ that you may immediately inform the merchants of this city, 
 [ *260 ] that they may not attempt to render ineffectual *the mea- 
 sures taken for the rigid and prompt execution of the orders 
 of my sovereign." In these papers there sire many instances of the 
 changeable system which France has adopted, with a view of pre- 
 venting all commerce in articles, not merely of British origin, but 
 which it is possible for England to furnish, although possibly pro- 
 ceeding from foreign sources. Now really, looking to the prompti- 
 tude with which these decrees are enforced, to what has been their 
 general operation, looking to what the policy of the French govern- 
 ment has been with respect to America, looking to what is stated in 
 the Neapolitan papers, looking, also, to the general want of equity in 
 the French courts of prize, I am of opinion that the c'aptors are justi- 
 fied in saying, that they have rescued these vessels from danger, and 
 that they are entitled to salvage. In laying down this rule, I should 
 lose sight of all justice, if I took into consideration only the advan- 
 tage of the British cruisers therein ; it appears to me to be a measure, 
 to say the least, not less beneficial to the commerce of America, be- 
 cause it must naturally be supposed, that if the recaptors are to have 
 nothing but the chaope of a lawsuit for their trouble, the service of 
 recapture will never be performed. If a service is done in the parti- 
 cular instance, and it is fit to be encouraged in general practice, it is 
 unjust to say that the salvage is given merely for the benefit of one 
 party. On the whole of the circumstances of this case, without look- 
 ing minutely into the varying policy of Fraftce, I think there is very 
 rational ground to apprehend that the French prize courts would 
 
HIGH COURT OF ADMIRALTY. 261 
 
 The James Cook. Edw. 
 
 have considered these ships as legal captures, and, therefore, I shall 
 pronounce for the usual salvage. 
 
 A similar question arose upon the capture of American vessels by 
 Danish cruisers, when the court made the same decree. 
 
 * James Cook, Jougain. [ * 261 ] 
 
 July 31, 1810. 
 
 Breach of blockade — consideration.s respecting the evidence of the master and mate in 
 such cases — cargo involved in the fate of the ship. 
 
 Judgment. 
 Sir W. Scott. This American ship, though navigating with a 
 professed destination to Tonningen, was captured at the entrance of 
 the Texel, three or four miles west of Kickdown. The situation of 
 the vessel will justify the legal conclusion, that the master intended 
 going into that port for the purpose of disposing of his cargo, and 
 throws the onus upon him of exonerating himself by just and satis- 
 factory explanations. What, then, is the account given by the mas- 
 ter in this case ? he says nothing of the situation of the vessel at the 
 time of capture ; and this is the more alarming, because he is princi- 
 pally concerned in the navigation of her. Now in any case of this 
 nature, supposing it to be fraudulent, it is obvious that the master 
 must be the principal agent, ^d it is highly probable that the mate 
 also is a party to the fraud, because such a plan is not easily carried 
 on without the assistance of him as an accomplice. On questions, 
 therefore, arising upon the destination of the vessel, although in 
 other cases the court is disposed to give great attention to the evidence 
 of the master and the mate, I do not think they are entitled to any 
 advantageous preference. Where they speak to the situation of the 
 vessel, their testimony must be outweighed by that of the common 
 mariners, unless there is reason to suggest that the mariners had been 
 debauched by the captors. The rnate says that the course of the 
 vessel was at all times directed to Tonningen, and so 
 says the master ; but he * suppresses a very important fact [ * 262 ] 
 which is admitted by the mate and the other witnesses, that 
 he sent a letter on shore by a Dutch fishing vessel a few hours before 
 the capture ; he denies also that he had a signal flying for a pilot, 
 
263 CASES DETERMINED IN THE 
 
 The James Cook. Edw. 
 
 (although the fact appears upon the log,) and seems to expect that 
 the court will receive his explanation as satisfactory, when he says 
 that he made the signal for the purpose of speaking a vessel, which 
 he took jp be an English frigate. Here, then, is clearly that sort of 
 conduct in the master, which renders his evidence highly suspicious. 
 The log speaks a language extremely indicative of an intention to 
 enter a Dutch port : it appears that they approached the coast of 
 Holland the day before, and from that time kept as close in to land 
 as possible. I must observe that if it were necessary that a ship 
 going to the northward should make the Dutch land so far to the 
 southward of the Texel, she could not be permitted to sail close 
 along the shore, as there can be no doubt that advantage would be 
 taken of the facilities which such an opportunity would afford. The 
 fact is, she continues (as the phrase is) to hug the coast ; she lies to 
 in the night, and as the two mariners say they heard the master de- 
 clare, " in order that they might not overshoot the Texel." The accu- 
 racy of the log has been attempted to be impeached in the argument; 
 but I can never take any suggestion of that sort against a document 
 of this authentic nature, unless it is supported by affidavit ; it cannot 
 be impeached with effect upon the mere pretence of interlineation, or 
 a difference in the color of the ink, or any slight objection of that 
 kind. The log says, that the ship lay to off the Texel, and spoke a 
 
 fishing boat ; at eight a pilot came alongside, and it appears 
 [ * 263 ] that the ship had not moved away from the entrance * of 
 
 the Texel when she was seized. ^ Upon all this evidence I 
 think it is not an arguable proposition, that there was not an intention 
 of going into that port. With respect to the cargo, I do not see how 
 it is to be exempted from the fate of the ship ; the master, who is 
 also the owner of the ship, can hardly be supposed to have risked his 
 vessel without the privity of the owner of the cargo, and in its 
 service ; but the fact is not very material, as the owners of cargoes 
 must at all events answer to the country imposing the blockade for 
 the acts of the persons employed by them, where, as in this case, 
 the blockade is known at the port of shipment ; otherwise, by sacri- 
 ficing the ship, there would be a ready escape for the cargo for the 
 benefit of which the fraud was intended. It remains, therefore, only 
 to be considered whether there was in reality any subsequent change 
 of intention on the part of the master, and whether that change of in- 
 tention was so acted upon by him as to deliver the ship and cargo from 
 the penalty of confiscation. To say that there is no case in which 
 the master of a neutral ship, losing sight of a malignant purpose 
 originally entertained, and taking another course more consistent with 
 his duty to other countries, might not be exonerated, is a proposi- 
 
HIGH COURT OF ADMIRALTY. 264 
 
 The Robert Hale. Edw. 
 
 tion which I am not inclined to maintain. It is proper that there 
 should be a locus penitentice, and if the case had been brought up to 
 this, that the intention of going to a Dutch port was actually aban- 
 doned, and that the ship was captured while proceeding to some 
 open port, the claimants would have had the benefit of that fact. 
 But what is the case here ? The ship is captured in a place where ■ 
 the fact is conclusive against her, for it has been determined over 
 and over again that a ship is not at liberty to go up to the 
 mouth of a * blockaded port even to make inquiry ; that in [ *264 ] 
 itself is a consummation of the offence, and amounts to 
 an actual breach of the blockade. The master does not inform 
 us what was the purport of his communication with the shore, 
 through the medium of the Dutch fishing vessel, as he suppresses the 
 fact entirely; it appears, however, from the evidence of the two 
 mariners, that l;ie afterwards made some little appearance of steering 
 for Tonningen. But what would be the legal effect of that, suppos- 
 ing the fact to be more clearly made out than it is in this case ; he 
 had already broken the blockade ; he had come up to ground which 
 it was improper for him to tread, and, finding the impossibility of 
 going in, he turned away. Is that a locus penitentiw ? The matter 
 was closed upon him ; he had committed the offence as much as in 
 him lay, and having been defeated in his purpose by a mere impossi- 
 bility of effecting it, he cannot be heard to aver an innocence of inten- 
 tion. It is, moreover, extremely probable that the frigate was in sight 
 before this pretended change of intention was thought of; for it ap- 
 pears that the communication with the pilot-boat took place at eight, 
 and the ship was captured at ten, previous to which time, by the 
 evidence of the mate, it appears that she had been becalmed at least 
 an hour, and therefore the capturing vessel could not have come up 
 very rapidly. Ship and cargo condemned. 
 
 The court afterwards, on being requested to restore the master's 
 private adventure, said. Wherever it appears that the master is the 
 principal agent in a fraud, I shall not give him his private adventure, 
 but shall leave him to the mercy of the captors. 
 
 Robert Hale, Randall. [*265] 
 
 August 2, 1810. 
 Salvage, claim of, for ship liberated on bail — refused. 
 
 • This American ship had sailed from Providence, Rhode Island, 
 
 16* 
 
266 CASES DETEEMINED IN THE 
 
 The Eobert Hale. Edw. 
 
 with a miscellaneous cargo, and was seized in the river Yadhe by the 
 French douaniers, by reason,.as stated by the master, of her not being 
 furnished with a certificate of property, and the Yadhe being inter- 
 dicted by the French. Her cargo was landed, and the ship released 
 on bail being given to answer the adjudication in the French prize 
 court ; but before she left the river the vessel was brought out by the 
 boats of his Majesty's gun brig Thresher and Broedageren, and a 
 claim of salvage was now set up on their behalf for this service. 
 
 Judgment. 
 Sir W. Scott. I think this question has properly been brought 
 before the court, but I do not think it a case in which a claim of 
 salvage can be sustained. The ship had been seized in the Yadhe 
 by the French douaniers, who, I presume, are acting there for the 
 rights and interests of the government of France, and must be con- 
 sidered as captors for* the authority under which they act. The case 
 was submitted to the Prize Court at Paris for adjudication, and in 
 the meantime the ship was liberated on bail ; and this not only on 
 security, but by an actual deposit of money. I must therefore take 
 it, that this ship, having been so liberated, was free to depart, as far 
 as the rights of the French government, and the persons employed 
 
 by that government, were concerned. Her stay was volun- 
 [ * 266 ] tary ; she had dropped down the river * towards the neigh- • 
 
 borhood of the British gun brigs, and was there waiting the 
 arrival of the office copies of her papers from Paris, as the papers 
 themselves were necessary for the decision of the original cause. 
 Whether, from her proximity to the French armed boats, the service of 
 bringing her out was attended with any personal danger to the officers 
 and men who were employed in it, does not appear; but supposing 
 it to be so, that would not be a ground of salvage, unless the vessel 
 was in French possession. That, however, was not the case ; she 
 was no longer detained ; she had left a representative, on which the 
 sentence of the French Prize Court was to operate, in the deposit of 
 24,000 francs. If the court condemned, the effect of the sentence would 
 be to confiscate, not the ship, but that sum of money which had been 
 accepted as a substitute ; if, on the other hand, the court restored, 
 neither the ship nor the substitute can be said to have been in peril. 
 And therefore in no case does it appear that any service has been 
 performed, because the bringing out of the ship, which was at liberty, 
 was not a rescue of the 24,000 francs, upon which the sentence of 
 the court was to operate ; it was no effective service to the owners to 
 bring away the ship, which was in no danger, whilst it left the repre- 
 sentative exposed to the same hazard as before. Then it has been« 
 
HIGH COURT OF ADMIRALTY. 267 
 
 The Wanstead. Edw. 
 
 said, that the ship might' have been seized again, and certainly she 
 might ; but that is not enough : the court will not grant salvage on 
 prospective and ideal danger; it must be proximate and certain. 
 What is there to raise this phantom ? Why, that the French dou- 
 aniers had no authority to release the ship on bail. But why is the 
 court to suppose that? They are something more than 
 simple * captors, they are public agents ; and the fair pre- [ * 267 ] 
 sumption is, that they knew that what they were doing was 
 not contrary to the regulations of their own government. The 
 reseizure of a ship, after the value had been deposited in a Court of 
 Prize, was never yet heard of; from the moment the bail is accepted, 
 the ship is sacred to the government by which she has been liberated ; 
 for it would be monstrous injustice to say, that the thing itself, and 
 that which has been accepted in lieu of it, shall be condemned for 
 the same act. Allowing for all the violence and irregularity which 
 mark the proceedings of the French government,' the improbability is 
 so striking, that I cannot entertain the notion that this ship was in 
 any danger of being made prize of a second time by the enemy. 
 And, therefore, whatever dangers may have been encountered in 
 bringing out the vessel, the parties must seek their reward in the 
 consciousness of having done their duty as brave men, and in the 
 approbation of the country; but as no service has been rendered, 
 there is no ground for salvage against the owners. 
 
 " Wanstead, Morton. [ * 268 ] 
 
 August 7, 1810. 
 
 Salvage ; claim of privateer to share with the king's ship — rule as to the apportionment. 
 
 In this case a-claim was advanced by "the Sorciere privateer, to 
 share in the salvage of this vessel with the Amelia frigate, the actual 
 recaptor ; from the evidence of the witness examined on board the 
 recaptured vessel, it did not appear distinctly whether the privateer 
 had actually joined in the chase, but that fact being admitted by the 
 king's ship, it became a question whether there was a sufficient coope- 
 ration to entitle the privateer to share, and in what proportion. 
 
 Judgment. 
 Sir W. Scott. According to the deposition of Boyes, the witness 
 
269 CASES DETERMINED IN THE 
 
 The Wanstead. Edw. 
 
 examined in preparatory, it would rather seem that there was no 
 chasing on the part of the privateer, as the result of his evidence is 
 simply that this ship was retaken by the Amelia frigate, the lugger 
 being in sight. Now certainly the mere fact of being in sight at the 
 time of a recapture by a king's ship, will not entitle a privateer to 
 share in the salvage ; but I think, by the affidavits given in on the 
 part of the king's ship, it does appear that there was an actual chas- 
 ing by the privateer, and the question then is, whether this was 
 a fraudulent or an effective cooperation. If the privateer, after a long 
 . chase of the enemy by the king's ship, threw herself purposely in the 
 way, and snapped up the prize, at the very moment when she was oji 
 
 the point of surrendering to the force of the king's ship, when 
 [ *269 ] the king's ship was in quasi possession, the court * would in 
 
 a case of that kind hold such an interposition to be intrusive 
 and fraudulent. There may be other cases in which a privateer may 
 be a most valuable associate ; she may have advantages of situation, 
 of wind and weather, all which may make the interposition of a 
 privateer highly useful, even after a chase is begun. But then to 
 determine this, the facts must be clear before the court. Now what ' 
 sort of evidence is there in this case ? Here is only one deposition 
 taken. It is no excuse to say, that in ordinary cases of recapture one wit- 
 ness is sufficient, because this was a contested case, and known to be 
 so ; the privateer ought to have given an allegation, and examined 
 witnesses, by which means the facts would have come out in a regular 
 manner. In such a case, to lay down any general principle, which, 
 perhaps, might not apply to a demonstrated state of facts, appears to 
 be nugatory. In this defective state of the evidence, I can only pro- 
 ceed upon the admitted fact, that the privateer was actually in chase ; 
 and therefore I shall pranounce for her interest, and give a salvage 
 of one sixth. 
 
 Judgment resumed. 
 Having already determined that one six:th shall be the portion of 
 salvage on this recapture, it is not necessary for me to consider 
 whether, under any circumstances, the court could give more. The 
 only question is, as to the distributive proportion which is left by the 
 act of parliament to the discretion of the court, and, as I apprehend, 
 on this principle — that where a recapture is made by a king's ship, 
 all other king's ships in sight are permitted to come in as joint 
 salvors ; there is a reciprocity in this rule, which operates 
 [ * 270 ] sometimes to the advantage, and sometimes *to the disad- 
 vantage of every vessel in the service. Not so where a 
 recapture is made by a king's ship in sight of a privateer ; in that 
 
HIGH COUET OF ADMIEALTY. 271 
 
 The Dash, and others. Edw. 
 
 case there is no reciprocity, as the privateer is not permitted to share. 
 It would be hard, therefore, if the privateer, being the actual captor, 
 and not having that reciprocal interest in other cases, she should be 
 deprived of a much greater proportion of the reward, and should only 
 share op terms of reciprocity where the kjng's ship is only the con- 
 structive recaptor, from the mere accident of being in sight, perhaps 
 at a great distance, and unconscious of the fact. Now what are the 
 circumstances of the present case? It did appear to me, on the 
 evidence offered to the court, that the interposition of the priva- 
 teer was not fraudulent; it was not the case of a* privateer stepping 
 in, at the end of a long chase, perhaps, to deprive the king's ship of 
 the due reward of her own activity and enterprise. Here it was clear 
 that both were in actual pursuit of the enemy ; it was not a con- 
 structive recapture on either side ; there was a concurrence of endeavor 
 in both, though the privateer came up first and struck the first blow. 
 Considering them both, therefore, as joint actual recaptors, I see no 
 reason why I should take the case out of the common operation of 
 that principle which apportions the reward to the parties according 
 to their respective forces.^ 
 
 Dash, and others. [ * 271 ] 
 
 August 8, 1810. 
 
 Privateers not withiffthe terms of a capitulation proteotirg private property generally. 
 
 • 
 
 This vessel, pierced for sixteen guns, with gun-tackle, bolts, &c., 
 was taken possession of with three others in the harbor of Brewer's 
 Haven, after the surrender of the island of Walcheren, in virtue 
 of orders from Commodore Owen, commanding a division of his 
 Majesty's ships engaged in the expedition. A claim was now given 
 on behalf of Minter & Co., of Brower's Haven, for this vessel, under 
 the second article of the capitulation, by which it was stipulated that 
 all private property should be protected. 
 
 iln the case of the Providence, which was a case of the same description, heard on 
 the same day, it appeared that the privateer was the actual captor, the king's ship being 
 in sight. The court, therefore, made the distinction, and having decreed one sixth 
 salvage to be paid by the owners of the recaptured vessel, only allowed the king's ship 
 to share against the' privateer as upon an eighth. 
 
272 CASES DETERMINED IN THE 
 
 The Dash, and others. Edw. 
 
 On the part of the captors it was contended, that from the outfit 
 and structure of the vessel, there could be no doubt of her having 
 been employed as a ship of war, and that, consequently, a public 
 character attached to the vessel, from the nature of that employment, 
 which took her out of the provisions of the capitulation. ^ 
 
 JUDSMENT. 
 
 SiE W. ScoTT. . I am of opinion that these ships were very pro- 
 perly seized ; they are pierced for guns, and on that aspect alone bore - 
 a military character sufficient to distinguish them from the other 
 property which was to be protected under the capitulation. It 
 appears, however, that Commodore Owen had some doubts upon the 
 subject, and referred himself to the judgment of the commanders of 
 the expedition ; but a variety of other engagements interposed to 
 
 prevent them from taking the matter into considerMion, and, 
 [ * 272 ] * under the exercise of a very proper discretion, he brought 
 
 the ships away, for the purpose of submitting them to the 
 proper tribunal of his country. In what manner these vessels had 
 been employed the court can only conjecture, as there was no crew 
 on board at the time of capture, and the deficiency could not have 
 been supplied by the production of any of the captors under a release, 
 as the utmost they could depose to would be, that these ships were 
 lying in the harbor in a dismantled state. The question, however, is, 
 whether the owners of property of this description are entitled to 
 restitution under the terras of the capitulation, by which all private 
 property is protected. I need not say that it is the disposition of the 
 court to give the parties the fullest protection which they "can be en- 
 titled to claim under the capitulation, but it appeaft to me that there 
 is hardly evidence enough before the court to enable it to form a judg- 
 ment upon the subject. That privateers are private property in one 
 sen.se, is certainly true, but they have at the same time a public cha- 
 racter impressed upon them by their employment : though they are 
 private property, they are still private property employed in the public 
 service. And, therefore, if it should turn out that these ships have 
 been equipped as privateers for the purpose of cruising against the 
 commerce of this country, I could have no hesitation in saying that 
 they are not a description of private property that can be brought 
 within the provisions of the treaty. If the Dutch commissioners 
 themselves had been asked at the time whether they supposed that 
 the capitulation was to protect privateers employed against this 
 country, I cannot doubt that they would have disclaimed any such 
 
 expectation. I cannot for a moment assent to the doctrine 
 [ * 273 ] that a privateer * has no public character unless she is in 
 
HIGH COURT OP ADMIRALTY. 274 
 
 The Dash, and others. Edw. 
 
 actual employment at the time as such. Undoubtedly if that be 
 her real and primary character, it would not be obliterated by 
 laying her up for four or five months; her public character would 
 continue as long as her commission continued. It might be very 
 convenient, under the existing circumstances, that the owners of these 
 vessels should divest them of the appearance of ships of war; an 
 expedition from England was expected, and an owner would not, at 
 such a moment, choose to keep his guns on board, and exhibit his 
 colors, in order to declare the purposes for which his vessel was 
 employed, and to point her out to the attacking force as an object of 
 seizure. I shall, therefore, not attend to that circumstance in the 
 proof I shall require. It will be nO satisfaction to me to hear that at 
 the moment of capture, these vessels were not so employed ; the 
 true question is, whether they were privateers or not. Nothing can 
 be more meagre than the evidence exhibited by the claimants. 
 
 The testimony of Mr. Fector, who was an indifferent spectator, is 
 merely negative ; he says that " he hath often seen The Dash, and 
 remembers her being built at Flushing, in the year 1805 ; that the 
 said vessel, though pierced for guns, has never, as he believes, been 
 commissioned or employed as a vessel of war." Perhaps not — but 
 I wish he had gone on to state for what purpose she was built, and 
 in what manner she has been employed. In this dearth of all evi- 
 dence to repel the presumptions arising from the appearance of the 
 vessel, nothing but the respect which is due to a capitulation, would 
 justify the court in granting to a person the privilege of still 
 fm-ther proof, who, under * general circumstances, is not [ * 274 ] 
 authorized to claim. On the other side, I think that the 
 captors have strong j9nmc^/acie evidence, in the construction of the 
 vessel, that she may have been employed for warlike purposes ; but 
 it does not go the whole length of what I conceive to be necessary. 
 That this vessel is applicable to the purposes of war, is no proof of 
 her being so applied. The structure of the vessel may be material, 
 and it will be for the claimants to show in what manner she has 
 been employed, for upon the result of that evidence alone shall I feel 
 myself in a condition to decide this question. 
 
 On a subsequent day, the ship was restored as private property, 
 the claimants having furnished sufficient proof that she had never 
 sailed under a commission of war, but had been employed exclu- 
 sively for commercial purposes. 
 
275 CASES DETERMINED IN THE 
 
 The Johan. Edw. 
 
 [ * 275 ] * JoHAN, Abraham.i 
 
 August 10, 1810. 
 
 Order in council respecting fishing voyages from and to ports from which the British flag is 
 
 excluded — application of. 
 
 Judgment. 
 Sir William Scott. This is the case of a Hamburg vessel 
 which had sailed from that port on a fishing voyage, and was cap- 
 tured on her return. Now, clearly, by the present policy of this 
 country, it is not permitted to a Hamburg ship to sail from that 
 port on a whaling voyage, and to return again to Hamburg, because 
 that is a voyage which is expressly prohibited by the order which his 
 Majesty has recently issued. His Majesty is there pleased to direct ^ 
 " that all vessels which have cleared out from any port so far under 
 the control of France or her allies, as that British ships may not 
 freely trade thereat, and which are employed in the whale fishery, or 
 other fishery of any description, save as hereinafter excepted, and are 
 returning, or destined to return, either to the port from when'ce they 
 cleared, or to any other port or place to which the British flag may 
 not freely trade, shall be captured, and condemned, together with 
 their stores and cargoes, as prize to the captors." So that now, cer- 
 tainly, such a voyage, under such circumstances, would be illegal, 
 though the ship were entirely Hamburg property, without any inter- 
 mixture of other interests. But it appears by this same order, 'that 
 before it was issued, this voyage was not illegal, and therefore an 
 exception is made, directing that all vessels " which shall have sailed 
 on their present voyage previous to notice 6f this order, or reasonable 
 
 time for the notice thereof, shall be permitted to return to 
 [ * 276 ] their own port without * molestation on account of any 
 
 thing contained in this order, provided they shall not have 
 continued on their fishery as aforesaid, more than twenty-one days 
 after due warning of this order received at sea." And then it goes 
 on to direct, that " the warning shall be indorsed on the sjjip's pa- 
 pers." In the present instance no such warning had been given, and 
 therefore this is a vessel which, it is declared by the order itself, " shall 
 
 1 [Affirmed on appeal, but expenses of claimant of ship pronounced a charge on the 
 cargo.] 
 
 8 See Appendix L. 
 
HIGH COURT OF ADMIRALTY. '277 
 
 The Johan. Edw. 
 
 be permitted to return to her own port without molestation." Con- 
 demnation has, however, been pressed against this vessel upon ano- 
 ther ground ; it has been suggested, that there is an appearance of 
 Danish interest in the property, and the case has been assimilated to 
 a class of vessels which came before the court some years ago, which 
 were employed in the Dutch whale fishery. But in those cases the 
 ships continued under the management of the former Dutch owners ; 
 they were fitted out in the same ports, and employed in the same 
 occupation as before; there was nothing, in short,- to distinguish 
 them from the aspect they originally bore, except a formal piece of 
 parchment which had passed between the parties. The court, there- 
 fore, held, that the Dutch character still attached to them, whatever 
 might be the national character of the persons to whom they had 
 been transferred. In this case, on the contrary, there is not any 
 ground for the suggested connection with Denmark, except what 
 arises from the contiguity of Hamburg to Altona ; but if this, in all 
 its circumstances, appears to be fair Hamburg traffic, in which the 
 merchants of that place were as likely to embark themselves, on their 
 own account, as the merchants of Denmark, I cannot infer Danish 
 interests from mere contiguity. I cannot, on account of any 
 such suspicion, * permit the whole commerce of that unfor- [ * 277 ] 
 tunate city to be interrupted and destroyed. Show me a 
 case in which Danish interests are really interwoven in the property, 
 and there the ostensible Hamburg character shall not protect the 
 vessel ; but in this case I do not see any thing on which I can build 
 such a presumption. There were two papers on board this vessel, 
 which have also been made the foundation of an argument. One 
 is a certificate, or Danish pass, purporting that there are no Danish 
 ■ subjects on board. It may be the policy of Denmark, when her own 
 sailors are wanted for the public service, to require that they shall 
 not navigate foreign vessels ; but a Hamburg vessel does not become 
 a Danish vessel merely because she accepts a certificate to that 
 effect. The other paper is of more consequence, as it is a permission 
 fi;om the Danish embassy at Hamburg for the ship, to this effect, 
 that " the voyage is undertaken with the permission of the proper 
 authorities, as well as of the imperial French authorities ; and that no 
 objection exists to her going out of the Elbe." Now it has been said 
 that this incorporates the vessel in the policy of Denmark, and gives 
 her a Danish character; but to me it does not appear to operate to 
 any such effect. What is the purport of it ? That the ship is per- 
 fectly neutral, and that the voyage does not interfere with the policy 
 of Denmark or- of France, with respect to the commerce of other 
 states. It no more constitutes this a Danish vessel than this order 
 
 EDW. 17 , 
 
278 CASES DETERMINED IN THE 
 
 The Johan. Edw. 
 
 in council, if it had been on board, would have constituted her an 
 English vessel. Then, what are the other objections ? The master 
 states, that, " on this voyage he had not sailed to any port or placfe 
 
 except Greenland ; " and it is argued that, as Greenland is 
 [ * 278 ] a Danish settlement, * if he went there to trade, it would be 
 
 a trading between Hamburg and Denmark, which is prohi- 
 bited. But the whales which compose the cargo of this vessel were 
 not taken from the shore ; they were caught at sea, on the fishery ; 
 • and every one knows that, in popular language, a voyage to Green- 
 land is a voyage to the Greenland seas, and not to any place that 
 can be considered as a port of trade. I think it is extremely ' ques- 
 tionable whether the Danes have any establishment there at all ; if 
 they have, it is not likely to consist bf any thing more than a few 
 store-houses for the use of vessels employed in the fishery. Then 
 again it is said, that this vessel was proceeding to Heligoland, on her 
 return, in violation of the order in council, prohibiting the entrance of 
 foreign vessels into that port. But the ship, it is perfectly clear, was 
 not going there with any intention of entering " the port or harbor ; " 
 her object was merely to touch there, in order, as the master states, 
 " to obtain information whether he might proceed direct to Hamburg 
 without touching at a port in England." The parties appear to have 
 been extremely anxious throughout to conform to the regulations of 
 this country. With this clear proof of a destination to Hamburg, it 
 cannot be supposed that any part of her cargo was to be deposited 
 at Heligoland, or that there was any intention of violating the order 
 in council. If the fact be that there is danger of an intermixture of 
 Danish interests in this trade, it must be prohibited by a specific 
 regulation, and that is now done by the order of the 9th May ; ^ but 
 as this vessel sailed from Hamburg before that order in council was 
 issued, the voyage was open to her, and I shall, therefore, restore the 
 ship and cargo, allowing the captors their expenses. 
 
 1 See Appendix M. 
 
HIGH COURT OF ADMIRALTY. 279 
 
 La Gloire, and three others. Edw. 
 
 The San Francisco, Du Paula. [*279] 
 
 August 10, 1810. 
 Salvage on Spanish ship recaptured from the enemy. 
 
 Judgment. 
 Sir William Scott. This is the case of a Spanish ship, which 
 was recaptured, after being more than twenty-four hours in posses- 
 sion of the enemy. An extract from the Cadiz Commercial Gazette,^ 
 dated 5th September, 1809, has been produced by the claimants, 
 referring to an article of a treaty between that country and the Eng- 
 lish Government, by which it would appear that the vessels of the 
 respective countries were, in future, to be restored on salvage, although 
 the treaty itself has not yet been promulged. I can have no doubt, 
 from the manner in which the fact is announced in the official gazette 
 of Spain, that the article was to take effect from that time. I shall, 
 therefore, in this case, decree restitution to the Spanish claimants, on 
 payment of a salvage of one eighth, and shall apply the same rule in 
 the other cases, if they come within the same limit of time, unless the 
 captors are able to procure evidence sufficient to repel the presump- 
 tion arising upon what is here furnished by the claimants. 
 
 La Gloire, and three others. [ * 280 ] 
 
 April 4, 1810. 
 Head-money limited to the actual captors. 
 
 Judgment. 
 Sir William Scott. The present question arises on the admissi- 
 bility of this allegation, which is offered to the court on behalf of 
 several ships composing a part of the squadron by which these French 
 frigates were captured, and claiming, upon the principle of associated 
 service, to share in the head-money. I shall not repeat the complaint 
 
 1 See Appendix N. 
 
281 CASES DETERMINED IN THE 
 
 La Gloire, and three others. Edw. 
 
 ■which I have abeacly had occasion to make, that this suit has been 
 long depending, although it is of a nature which, in a peculiar degree, 
 requires to be brought to its termination with the greatest expedition. 
 Head-money, according to the principle which is recognized in this 
 and the superior court, is the peculiar and appropriate reward of 
 immediate personal exertion, and, consequently, wherever any claim 
 to participate in a bounty so appropriated has been advanced, it has 
 always been considered in a more rigid manner by the courts than 
 those which arise out of the general interests of prize. There are 
 some very ancient cases in which the question has been decided ;i in 
 the case of The Suberbe ; in the case of The Duchess Anne ; and 
 also in the case of The Toulouse, in which it appears by a note of 
 that judgment, communicated to me by a very eminent person of 
 great experience, and of the longest practice in these courts, that the 
 prize was condemned to one man of war, as actual captor, and to 
 two others as assisting at the capture : but the bounty-money was 
 ordered to be paid only to the actual captor, the others not 
 [ *281 ] being actually engaged with the prize. This is the *invari- 
 able rule which, for more than a century, has been applied 
 to cases of this description, and, therefore, the circumstances must be 
 of a very peculiar nature to induce the court to recede from a prac- 
 tice so long and so universally established. As to three of the ships, 
 The Achille, The Windsor Castle, and The Polyphemus, I need only 
 read the sixth article, which recites the grounds of their respective 
 claims, in order to dispose of them. It says, "that during the general 
 chase the enemy's ships, L'Infatigable, L'Armide, and La Minerve, 
 ran a distance of eighty-eight miles, and La Gloire a distance of 
 about one hundred and eight miles, before they were captured ; and 
 The Centaur, Mars, Monarch, and Revenge, by outsailing the other 
 ships of the squadron, were enabled to effect the captures in question 
 without any direct aid of any of the rest of the squadron, consisting 
 of The Windsor Castle, Polyphemus, and L' Achille, neither of them 
 being within gunshot of any of the enemy's ships, either before or 
 when they struck. But they were all in sight and in chase : every 
 exertion was used to get up with the enemy ; the chase -was a gene- 
 ra! one ; the said captures were the result of a joint cooperation of an 
 associated fleet, the whole of whom assisted in exchanging the pri- 
 soners, and afterwards in bringing the said prizes safe into port." 
 Now it is clear that all these circumstances, taken separately or col- 
 lectively are not such as/will bring these ships within the established 
 
 Superbe, June 26, 1710; Duchess Anne, July 6, 1710; Toulouse, June 13, 1715. 
 
HIGH COURT OF ADMIRALTY. 282 
 
 La Gloire, and three others. Edw. 
 
 principle ; they were not engaged in fight, they were not actual cap; 
 tors, they were merely in sight and in chase, and their claim is quite 
 unsustainable on any principle that has been sanctioned by this or 
 the superior court. What the reason is that has prevented 
 the discussion of the claims *of these three ships before, I [ *282 ] 
 do not know ; four years have elapsed since the capture of 
 the prizes, and the delay which has taken place has, I suppose, pre- 
 vented the distribution of head-money. Matters of this kind cannot, 
 consistently with the honor of the court, be permitted to be hung up 
 for so many years together. The court must prescribe a limitation 
 of time for such claims. If head-money is to be considered as the 
 reward of personal exertion, all questions arising out of it ought to 
 be brought to an early determination, and not be kept fluctuating in 
 a state of uncertainty until many of the persons interested are con- 
 signed to their graves. It has been suggested that this case stood 
 over because the parties were in hopes of settling the matter by arbi- 
 tration. But they must finally have come to this court for a decree, 
 otherwise the head-money would not have been paid ; and I wish it 
 to be clearly understood, that if parties propose to go to an arbitra- 
 tion in a matter of this kind, it must be speedily resorted to, other- 
 wise I shall find a necessity for proceeding to adjudication upon the 
 point, in order to secure to the persons interested the speedy posses- 
 sion of that bounty which it was intended they should receive. What 
 may be the proper limit of time within which the arbitration is to 
 take place, I shall consider ; but certainly it shall not be one which 
 will countenance an unnecessary delay. Every part of this allega- 
 tion which relates to these three ships, must be expunged, the court 
 having decided against their interest. Their case rests upon a very 
 diiferent footing from that to which it has been assimilated of ships 
 claiming to share in bounty money arising out of a general engage- 
 ment; in that case there can.be no selection of combatants. 
 It is a service in which all * equally participate ; the whole [ * 283 ] 
 fleet is supposed to be engaged with the whole of the oppos- 
 ing force ; it is often so in the reality of the fact, and always so in the 
 supposition of law ; and, therefore, all are equally admitted to par- 
 take in the benefit of prize and head-money. But in the case of a 
 general and remote chase like this, where the parties are dispersed to a 
 great distance from each other, there may be a combination of exer- 
 tion, and yet a separation in contest. In such a case, there is no dan- 
 ger of that confusion and uncertainty as to the actual services of each 
 individual ship which was suggested in argument, because, from the 
 difference in locality, the facts must be capable of being sufficiently 
 substantiated by evidence taken recenti facto. But the mere endeavor 
 17* 
 
284 CASES DETERMINED IN THE 
 
 La Gloire, aud three others. Edw. 
 
 to come up and close with the enemy, either before or dm-ing the 
 battle, will not sustain a claim to participate in the head-money ; 
 unless the effort is successful, the endeavor to do the act does not 
 constitute the act itself, so far as the claim of head-money is con- 
 cerned. Some ships may also use laudable endeavors to render assist- 
 ance after the battle, by helping to remove the prisoners, and doing 
 other acts of a useful nature : but that is not joining in the battle, 
 and will not bring them within the principle which I have cited. 
 
 I come now to consider what is the case of The Revenge, in order 
 to see whether it can be brought within the narrow limits of that 
 principle, by which, I think, the discretion of this court is circum- 
 scribed, under the authority of former decisions. Tl^e second article 
 pleads, that " about one o'clock on the morning of the 25th of Sep- 
 tember, 1806, a squadron of his Majesty's ships, under the orders of 
 Commodore Sir Samuel Hood, consisting of The Centaur, 
 [*284] Mars, Monarch, Revenge, Achille, Windsor Castle, Poly- 
 phemus, and Pilchard schooner, being then off Chasseron 
 light-house, the wind blowing from the north-east a fresh breeze, and 
 the weather clear. The Revenge to windward of the fleet, and The 
 Monarch to leeward thereof, and the whole upon the lookout, a sig- 
 nal was made by the Monarch for an enemy in the south-west quar- 
 ter. That Commodore Sir Samuel Hood, observing them to, be 
 seven sail in number, and apparently large ships, made a signal to 
 form the line, but, shortly afterwards, perceiving the enemy to bear 
 up and make all sail towards the S. S. W., a signal was made from 
 The Centaur for a general chase, which was instantly obeyed by 
 every ship of the squadron. That The Monarch, from her position, 
 was the leading ship, and was closely followed by The Centaur arid ; 
 Mars, and, as daylight approached, the enemy was discovered to con- 
 sist of five large French frigates and two corvettes ; about five o'clock 
 The Monarch began firing chase guns at the enemy, which fire was 
 returned, and about six o'clock, one of the said frigates, going off 
 towards the westward with a view to escape, a signal was made to 
 The Mars to chase her, which she accordingly did, and about twelve 
 o'clock came up with and engaged the said frigate, which shortly 
 afterwards struck, and being taken possession of, proved to be the 
 French frigate L'Infatigable, of forty-four guns, and having on board 
 six hundred and forty men. That at the time when she struck, the 
 whole of the said squadron were in sight, and were cooperating in 
 the chase, but neither of them were within a less distance than ten 
 miles, nor were any of the ships of the said squadron ever 
 [ * 285 ] within gunshot of the said prize L'Infatigable, * save and 
 except The Mars and Monarch, the said prize being the 
 
HIGH COURT OF ADMIRALTY. 286 
 
 La Gloire, and three others. Edw. 
 
 sternmost frigate, which was fired at by The Monarch, previous to 
 her hauling off to the westward." The third article upon which the 
 claim of The Revenge is grounded then goes on to plead, " that the 
 general chase was continued after the enemy's other frigates by all 
 the other ships of the squadron, and soon after six o'clock one of the 
 said frigates and the two corvettes went off towards the south-east, 
 and escaped, but the remaining three frigates kept running towards 
 the south-west in close order, with the evident intention of support- 
 ing each other;* that The Monarch, being the leading ship, about a 
 quarter past ten o'clock, opened a heavy fire on the three said fri- 
 gates, who, by maintaining a running fight, very much damaged and 
 crippled the sails of The Monarch, before any of the other ships of 
 the squadron could come up ; that about eleven o'clock The Cen- 
 taur, being got within gun-shot, also commenced close action with 
 two of the said frigates, and occasionally firing at the third ; and 
 about twelve o'clock L'Armide, one of the said frigates, mounting 
 forty-four guns, with 590 officers and men on board, struck her colors, 
 when one of the said frigates, bearing a commodore's pennant, made 
 all sail to the westward, to endeavor to escape ; that soon afterwards 
 the ensign halliard of another of the said frigates being shot away, 
 her colors came down, and it being supposed that she also had sur- 
 rendered. The Centaur immediately pursued the aforesaid frigate 
 which had. made sail to the westward, and, in the mean time, the 
 frigate whose halliard had been shot away rehoisted her ensign, and 
 continued to engage The Monarch ; that his Majesty's ^ 
 * ship Revenge, under the command of Sir John Gore, one [ *286 ] 
 of the said squadron, having in the course of the aforesaid 
 chase passed every ship of the squadron, except The Centaur, Mars, 
 and Monarch, she was, at the time when L'Armide struck, only 
 about four miles distant, fast coming up, and then perceiving the 
 other frigate, which was still engaged with The Monarch, endeavor- 
 ing to make her escape, by edging off to^ivards l;he eastward, out of 
 the reach of The Monarch's fire, and that, owing to the disabled 
 state of The Monarch's rigging, she was increasing her distance, The 
 Revenge immediately hauled up to cross his qpurse, came within 
 gun-shot, and was just preparing to open her fire, when the said fri- 
 gate, after firing two or three shots at The Revenge, struck her colors, 
 and proved to be the French frigate La Minerve, mounting forty-four 
 guns, with 609 officers and men on board ; that The Monarch then 
 making^the signal that L'Armide, which had previously struck, was 
 not secured, two of The Revenge's boats were instantly hoisted out, 
 she at the same time making all sail after The Centaur and the 
 other frigate, and an officer and sixty men were sent, who assisted 
 
287 CASES DETERMINED IN THE 
 
 La Gloire, and three others. Edw. 
 
 in taking possession of the said French frigate L'Arraide, while The 
 Monarch sent a party of officers and men on board La Minerve ; 
 that when the enemy's frigate, carrying a commodore's pennant, 
 made sail to the westward, to endeavor to escape, and was chased 
 by The Centaur, a running fight was maintained between them 
 until near three o'clock, when his Majesty's ship Mars, after captur- 
 ing L' Indefatigable, as is particularly pleaded in the second article of 
 > this allegation, having joined in the chase of the frigate in 
 
 [*287] * question, came up, crossed her course, and commenced 
 firing, and the said frigate then struck her colors, after a 
 chase of about fwenty miles from the place where The Monarch 
 was left with La Minerve and L'Armide, and, on being taken pos- 
 session of, proved to be the French frigate La Gloire, mounting 
 forty-six guns, with 623 officers and men on board ; that his Majesty's 
 ship Revenge, after crossing La Minerve and compelling her to sur- 
 render, crowded all sail after the said frigate La Gloire, then about 
 eight miles ahead, leaving The Monarch with L'Armide and La 
 Minerve, and at three o'clock, when the said frigate struck her 
 colors. The Revenge, having gained considerably on both the said 
 ships, was only four miles from, and not within gun-shot of, La 
 Gloire; that, by signal from The Centaur, The Revenge took pos- 
 session of the said frigate, and her boats were employed in shifting 
 the prisoners, The Centaur and Mars sending only two officers on 
 board." 
 
 It is pleaded that she was preparing to open her fire against The 
 Minerve ; but, in point of fact, she had not opened it. The Minerve, 
 it is said, had fired two or three shots at her ; but that these shots 
 were received by her is not said, and it may now be difficult to prove 
 that they were really discharged at her, or were other than random 
 shots, discharged just before the act of striking, which followed in- 
 stantly afterwards. ' The Monarch then took possession of her, and 
 The Revenge went in pursuit of the other frigate. La Gloire, with 
 all the promptitude which might be expected from the known acti- 
 vity of her commander, but he was not within gttn-shot of her when 
 she struck. With respect, therefore, to this latter prize. The 
 
 [ * 288 ] Revenge is * clearly out of the question. In that of The 
 Minerve, she approaches much nearer to the verge of the 
 principle than any of the other vessels which did not fire ; and, per- 
 haps, if these circumstances had been brought in proper time to the 
 notice of the court, so that the court could now have possessed itself 
 of the fact upon evidence from The Minerve that the shots were 
 really discharged at The Revenge, I should have thought them 
 deserving of great attention. For if that fact were indubitably esta- 
 
HIGH COURT OF ADMIEALTY. 289 
 
 The Adams. Edw. 
 
 Wished, it might raise a nice question, whether she might or might 
 not be considered as actually engaged, although she had not fired a 
 shot, and although, as it has been truly observed, it is the second or 
 returned blow that makes the battle. But considering the length of 
 time which has elapsed since the capture took place, I am not 
 inclined to admit this claim, which is made to rest on an equivocal 
 circumstance, of which there is now but little chance of obtaining 
 any satisfactory evidence. It being the established principle that 
 head-money belongs to the taker, I think it is my duty not to recede 
 from that principle on behalf of an asserted interest of this nature, 
 upon any state of facts that does not clearly, and out of all question, 
 support such a character. Where the question either of fact or of 
 law, in favor of such an interest, is dubious, it is fit that the court 
 should incline to the clear and incontestible interest of the actual 
 taker, and should not be disposed to diminish, by an enlarged con- 
 struction, the benefits which the law has exclusively appropriated to 
 him. 
 
 * INSTANCE COURT. [*289] 
 
 Adams, Tubbs. 
 
 February 14, 1811. 
 
 Breach of the revenue laws ; condemnation. 
 
 ,This American ship, laden with tobacco, pork, beef, flour, and 
 other articles, sailed from Boston to Trinidad, where, upon her arri- 
 val, the master reported the ship, and the admissible articles were 
 allowed to be entered, landed, and sold ; the tobacco, pork, and beef 
 being entered for exportation. While the ship remained, unloading 
 and selling the permitted articles, a petition on behalf of Messrs. 
 Neblett & Swinden, stating that they had imported twenty-five hogs- 
 heads of tobacco in the ship Adams, and praying that it might be 
 permitted to be landed and sold, was presented to the governor, and 
 leave granted, with the concurrence to be first obtained of the col- 
 lector and comptroller of the customs, who, upon application being 
 made to them, signed the permit. Part of the tobacco was, in con- 
 sequence, hoisted into a boat alongside, for the purpose of being 
 landed, when the vessel and cargo were seized by Lieutenant Briarly, 
 commanding his Majesty's ship Oronoko. 
 
290 CASES DETERMINED IN THE 
 
 The Adams. Edw. 
 
 Judgment. 
 
 Sir W. Scott. This is a proceeding for the purpose of obtaining 
 the condemnation of the ship Adams and her cargo, originally insti- 
 tuted in the Vice- Admiralty Court of the island of Trinidad, and 
 from thence removed, by appeal, into this court. The 
 [ * 290 ] ground on which the condemnation was sought was * a 
 breach of the revenue laws. A libel was there filed, upon 
 the 19th of October, 1807, by Alexander Briarly, describing himself 
 as lieutenant in his Majesty's navy, and commanding his Majesty's 
 sloop of war Oronoko.^ The breach of the revenue laws assigned 
 was an unlawful importation of tobacco, committed in the month of 
 August of that year, and the seizure was made upon the 6th of that 
 month. 
 
 A preliminary objection is taken, that it doep not appear, by any 
 ■evidence in the case, that the party who makes this seizure and pro- 
 ceeds upon it, was a person authorized to make such a seizure ; for 
 it must be a seizure made by a person commanding one of his 
 Majesty's ships. And it is said that it is essential to the support of 
 such a prosecution, that it should appear in evidence to the court 
 that he was a person actually in the command of one of his Ma- 
 jesty's ships,^ and that this being a case of a favorable description, 
 an objection of that or of any other kind is fair, and that advantage 
 may be taken of it in any stage of the cause. This court is cer- 
 tainly not in the habit of inclining to objections of form, in cases 
 which are brought from the colonies. It is perfectly well known that 
 they have not, in all cases, the means of observing that exactness 
 which the rules of pleading in the courts of the mother country may 
 require ; and, therefore, great indulgence is shown to some informal- 
 ity in that respect. At the same time, if it is essential that the fact 
 should be proved, the want of proof of a:n essential fact mu-st be 
 attended to. It would be very inconvenient that an objection of 
 this kind should be deferred to a very late stage of the appeal; 
 tliough I do not say that it is then absolutely and universally inad- 
 missible, or that the court would refuse to entertain such an 
 [ * 291 ] objection if * brought forward at the eleventh hour, whether 
 the case were of a favorable description or not. How it is 
 to be considered in respects of that nature, must depend on the 
 result of the discussion of its merits ; for till the court has signified 
 its opinion upon those merits, non constat that it is to be attended 
 with any. considerations of a favorable nature. It is a case of for- 
 
 1 7 & 8 W. c. 22. 2 28 Geo. III. c. 6 s. 16. 
 
HIGH COURT OF ADMIEALTY. 292 
 
 The Adams. Edw. 
 
 feiture, undoubtedly, but it is a revenue case of forfeiture ; and the 
 revenue laws, which are founded in a wise and salutary policy, are 
 always upheld by a strict enforcement in those courts which have to 
 carry them into execution. In this case, however, I take the fact to 
 be, that there is no foundation whatever for the principal objection ; 
 because not only does the party describe himself as commander of a 
 king's ship, but I find an admission, on the part of the claimant, that 
 he was so, in page eleven of the process, where it is stated that, " in 
 the Court of Vice- Admiralty in and for the said island, on the 9th 
 day of November, 1807, the honorable Archibald Gloster, Esq., his 
 Majesty's attorney-general, and advocate and •proctor for Daniel 
 Tubbs, of Boston, entered a claim for the ship and goods seized, and 
 now under prosecution in the said court," — by whom ? " By Alex- 
 ander Briarly, lieutenant in his Majesty's navy, and commanding 
 his Majesty's ship of war Oronoko." Here is, on the part of the 
 claimantj therefore, an admission that he was a person so authorized. 
 It is not stated merely that he so described himself, but it is a direct 
 averment of the fact, on the part of the claimant himself; the parties 
 have gone on ever since under that claim, so entered and so admit- 
 ted, and therefore it is impossible for me to attend to an objection of 
 that nature. I must dismiss it altogether out of the cause. 
 
 * It does not appear that any libel was filed till the 19th [ *292 ] 
 of October, though the seizure was made on the 6th of Au- 
 gust, and that is an irregularity, which, among other singularities that 
 accompany this case, excites the observation of the court, and renders 
 it necessary to inquire how it comes abqut that this officer, making 
 his seizure upon the 6th of August, did not file his libel till the 19th 
 of October. The fact must be accounted for ; because otherwise it is 
 an inactivity that might be fatal to his interests, and it is necessary 
 for the court to see whether, from the history of the transaction, as 
 far as it can be collected from this evidence, there is that course of 
 events which shall discharge him from the objections that might arise 
 from the tardiness of his proceedings. Now, how is it accounted for ? 
 According to the evidence, he took possession of this vessel upon the 
 7th of .August, and in page 32, of the process, it appears that he made 
 an application to the collector of the customs, (to whose care by the 
 act of parliament the custody of seized vessels is given,) upon the 8th 
 of August, in these terms : " I have seized the American ship Adams, 
 Captain Tubbs, and the goods, wares, and merchandise on board of 
 her, for a breach of the revenue and navigation laws. I have, there- 
 fore, to request you will be pleased to take charge of the same accord- 
 ing to the act." He goes on to. state : " I would wait on you person- 
 ally, but indisposition, and being under close arrest by order of his 
 
293 CASES DETERMINED IN THE 
 
 The Adams. Edw. 
 
 Excellency and council, prevent me." So that at this time he was as 
 active and urgent as he could be ; for being himself imprisoned, he 
 did every thing that it was in his power to do, in making his applica- 
 tion to the proper officer. The of&cer of the customs, acting 
 [ *293 ] "ministerially, in conformity to orders he had received from 
 the governor and council, declined interfering in the busi- 
 ness, and, therefore, there is no imputation upon Mr. Briarly for 
 neglect of duty on that account. 
 
 It seems (at least if the petition which states the course of the 
 events is to be considered as evidence) that this gentleman was, for a 
 considerable time afterwards, a month, detained in the common pub- 
 lic goal of the island, by order of the governor ; for what this was 
 done, does not appear in the evidence transmitted. This does appear, 
 that he did use a coarse and irreverent expression with respect to the 
 permission which had been given by the governor to land this obnox- 
 ious article, namely, that "he did not care a damn about the govern- 
 or's permission." This was certainly a gross manner of expressing 
 his doubts upon the validity of the order under which these goods 
 were landed ; but it is impossible to conceive that this expression, 
 though highly censurable in its terms, could have been the reason for 
 such a proceeding against him, neither could the seizure itself have 
 furnished a ground for his imprisonment. The acts of a minister of 
 the crown are liable to be called in question ; the subject has a right 
 to take the decision of a court of justice upon any disputable act of 
 the highest authority of the state, and, therefore, it cannot be for either 
 of these acts, I should suppose, that this gentleman was put into the 
 condition which he describes. It must have been for some reason or 
 other that lies entirely out of the range of this evidence, and into 
 which it is not proper for me to inquire any further than the neces- 
 sity of his explaining the cause of the delay makes it incumbent upon 
 me to do so. ' For any other purpose, it is out of any view 
 [ * 294 ] I can take of the question, ' and I look at it only so far as it 
 is necessary for his exculpation in not having proceeded with 
 greater activity in the cause. Now the fact being, that for some rea- 
 son or other that lies out of sight, and which I am bound to believe 
 to have been sufficient, (from respect to the personal character and 
 official situation of the person who directed it,) the fact, I say, being, 
 that Lieutenant Briarly was under personal detention himself, and 
 the officer of the customs, to whom the authority was given, having 
 declined acting, he is not chargeable with fatal neglect under such an 
 incapacity. 
 
 It appears, likewise, that a forcible repossession of this vessel was 
 taken, upon the 10th of August ; this is spoken to by two witnesses. 
 
HIGH COURT OF ADMIRALTY. 295 
 
 The Adams. Edw. 
 
 One of them, a boatswain, of the name of Morgan, whom Lieutenant 
 Briarly put on board, says : " The ship was taken possession of by 
 Major Logan, a sergeant, and eight soldiers with muskets and fixed 
 bayonets, three days after the seizure, and on the day the deponent 
 was sent out of her; and Major Logan said that he took charge of 
 the ship by the governor's orders, and asked the deponent what charge 
 he had of her; that the deponent informed him that he was in charge 
 of the said ship by the orders of Mr. Derickson, master of The Oro- 
 noko, to see that the said ship Adams was regularly pumped out, 
 and not to suffer any thing to be taken out of her; that Major Logan 
 told him he must go on shore with him, and the deponent asked if 
 he could not go to his own ship, and Major Logan answered yes, and 
 that he might either go on board his own ship or on shore with him ; 
 that Captain Tubbs ordered two of his men to put the depo^ 
 nent on board The Dominica packet, and he was accord- [*295 ] ' 
 ingly taken on board of her, as there was a boat alongside 
 of her from The Oronoko." There is another witness to this point, 
 Thomas Cushing Faxton, and the account he gives is, " That, in the 
 month of August last. Major Logan came on board the ship Adams, 
 with a sergeant and eight white soldiers, while she was under seizure 
 by Lieutenant Briarly ; that the deponent was on board at the time of 
 their arrival ; that Major Logan told the boatswain that he was sent 
 to take charge of the ship, and he, the boatswain, had nothing further 
 to do with her, and might go on board his own vessel as quick as he 
 could, and a boat belonging to The Adams was ordered, and took 
 him on board The Dominica packet ; that some orders were given 
 respecting the ship Adams, but does not recollect the purport of them, 
 but he remembers that Major Logan told the sergeant to let Captain 
 Tubbs go on and to continue to discharge the tobacco, and not to let 
 any boats come alongside, unless by Captain Tubbs's orders. 
 
 It appears that this vessel, being again put into the possession of 
 Captain Tubbs, in consequence of this forcible repossession by the 
 military force, there followed aftervi^ards an application to the judge 
 of the court, on behalf of Captain Tubbs, made upon the 1st of Sep- 
 tem^ber, 1807, stating that his cargo was then all delivered, and that 
 he desired leave to depart. The answer given by the judge was, that 
 no proceeding had, at that time, been commenced in his court; thftt 
 there was nothing to detain him there, and that, therefore, he was at 
 liberty to depart. Afld it does appear accordingly that he did de- 
 part ; the ship went about her business, and without any bail being 
 given. 
 
 * Mr. Briarly, afterwards, upon the 19th of October, filed [ *296 ] 
 his information, and prayed that bail might be assigned. 
 EDW. 18 
 
297 CASES DETERMINED IN THE 
 
 The Adams. Edw. 
 
 The judge rejected the application for bail, because, he said, he had 
 no jurisdiction, the ship being gone, and that no cause having been 
 commenced while the ship staid there, there was nothing upon which 
 the court could then act. It happened, however, that this same ship 
 returned to the port, and then Lieutenant Briarly applied to the judge 
 for his authority to arrest her. That authority was accordingly com- 
 municated on the 29th of January, 1808, and I think rightly commu- 
 nicated, because Lieutenant Briarly having taken legal possession of 
 the ship, in the first instance, and forcible repossession having 4aken 
 her from him, I think his legal possession was not devested by that 
 forcible repossession, and that, therefore, the legal authority of the 
 court was very property imparted to him, for the purpose of putting 
 him in statu quo, into the exact state in which he would have been if 
 that force had not been applied to him. The ship was accordingly 
 arrested, and bail ordered for the alleged value of the ship and the 
 former cargo. 
 
 There was then an application made to the court to proceed to the 
 hearing of the cause on the claim given, the evidence being closed. 
 But it appears that the cause was not heard till six months after- 
 wards, in consequence of the application of the custom-house officers, 
 who stated that their orders, from the custom-house in England, were 
 that causes, in which they were parties, should not be heard till they 
 had directions from home, if possible ; always preserving due obedi- 
 ence to the orders of the court in which the proceedings were had. I 
 dare say there were reasons, and that a very justifiable discretion 
 
 exercised upon these reasons,- then guided the determination 
 [ *297 ] of the judge to delay the *cause for so long a period. I have 
 
 no doubt of it ; but, at the same time, it is not to be said 
 that if a private seizor makes a seizure, and is willing to proceed with 
 his cause, the cause is necessarily to be suspended for six months, till 
 orders can be received from the custom-house here. Because that 
 seizor is proceeding pro interesse suo ; he has a right so to proceed, 
 and it is at his expense and peril. The ground for that direction, 
 assigned by the commissioners here, is, that improper expenses may 
 not be incurred on behalf of the king's government. But if the suit is 
 going on, not at their expense, but at the private charge of the pri- 
 Jftte seizor, there is no reason why he should be delayed in the prose- 
 ration of it. I do not intend to impute blame. I have no doubt the 
 delay was properly interposed. ♦ 
 
 K nolle prosequi being entered by the attorney-general, proceedings 
 were had upon that point, and the nolle prosequi dismissed, so far as 
 respected the interest of Lieutenant Briarly ; the cause, as prosecuted 
 by him, came to a hearing, and upon that hearing the judge restored 
 the ship and cargo entirely. 
 
HIGH COURT OF ADMIRALTY. 298 
 
 The Adams. Edw. 
 
 The cause being regularly appealed, it is now for me to consider 
 what is to be the event of that appeal. The breach assigned, and 
 the only one worthy the attention of the court, is the importation of 
 • tobacco, and, to prove this importation of tobacco, these facts are 
 established : First, that it was brought to the island of Trinidad in 
 this ship, not being British built, or navigated as such, but an Ame- 
 rican ship ; secondly, that it was there put into a boat, for the pur- 
 pose of being landed and warehoused ; and, thirdly, that 
 it was finally landed and warehoused. The last * of these [ *298 ] 
 facts, that it was finally landed and warehoused, is not 
 necessary to constitute the importation ; because undoubtedly the 
 putting into the boat, with the intention of being landed, is an 
 importation. The bringing goods in a ship is primd facie evidence 
 of impprtation ; it may be repelled ; but the act of putting them 
 into a boat from the ship, with the avowed intention of landing 
 them, is undoubtedly all that is necessary to compose and to conclude 
 a case of importation. And therefore 1 think I must take it that, in 
 this case, there is sufficient proof of the fact of the importation of 
 this tobacco. 
 
 This fact is attempted to be justified in the case, and the rights 
 and interests of the party in this property must depend upon the 
 nature of the justifications that have been set up. It has been said, 
 in the first place, and very strongly insisted upon, that here was a 
 perfectly bond fide intention ; that it is clear there was no intention 
 to violate the law, because an application was first made to the 
 governor, that permission was given by him, and it was intended to 
 be landed openly and in the face of day, without any act of smug- 
 gling as far as clandestinity is necessary to constitute an offence of 
 that species. In the first place, it is not necessary that there should 
 in all cases be mala fides to subject to forfeiture ; because an irre- 
 gular importation made under ignorance or error, if ignorance and 
 error be not invincible, works a forfeiture, and is quite sufficient for 
 that purpose. If you break the laws, whether you do it clandestinely, 
 or openly and avowedly, the intention of violating the law is a legal 
 and implied ingredient in the act done, and the court is not required 
 to look further than to the act itself. 
 
 * But I must say that, if it were requisite to look further, [ *299 ] 
 I cannot but think that something of an apparent mala 
 fides does occur in this case ; for I can by no means agree to the 
 representations which have been made of that clear purity of inten- 
 tion in the importers, who are to be considered as the violators of the 
 law — I mean the British merchants, Mr. Niblett and Mr. Swinden. 
 For what is their conduct ? In the petition which is contained in 
 
300 CASES DETERMINED IN THE 
 
 The Adams. Edw. 
 
 page sixty they state to the governor, " that they have imported in 
 the Arnerican ship Adams, from Boston, twenty-five hogsheads of 
 tobacco, which they contracted for in April last, at which time the 
 said arti6le was allowed to be imported in American bottoms, and 
 no intimation of its being prohibited." Now how is it possible to 
 assert that, with any attention to the dates of the order of the king 
 in council, w^hich had been received and published at the govern- 
 ment house at Trinidad months before ; for this petition bears date 
 on the 5th of August, 1807, and the order in council was published 
 at the government house at Trinidad, upon the 21st of November, 
 1806, in which there was allowed the importation of provisions. 
 But under which allowance, tobacco (unless tobacco in the circum- 
 stances I shall have occasion to advert to can be considered as pro- 
 vision) was publicly and notoriously a prohibited article ; for every 
 thing not expressly permitted must be taken to be prohibited, under 
 the genera] statutes of exclusion. How, therefore, it can possibly be 
 asserted by them that they contracted for this tobacco at a time 
 when it could be legally imported, I really cannot conjecture. They 
 go on to state, in this petition, " that being informed there is 
 
 some restriction at this time " — (why there was no other 
 [ * 300 ] * restriction than that which existed' at the time of their 
 
 entering into the contract) — " your petitioners trust that 
 your excellency will take the circumstance into consideration, and 
 allow the same to be landed, otherwise " — What ? '" Otherwise it 
 would prove of serious injury to tSiem ; " that is, they would be losers 
 
 by it- V _ 
 
 Now I have found great difficulty in reconciling this averment 
 with the other averment which I find upon oath in the deposition of 
 one of these gentlemen., (Mr. Swinden,) afterwards, in page sixty of 
 the process, in which he expressly swears, in answer to the second 
 interrogatory, " that he is no further interested in the condemnation 
 or acquittal of the ship or cargo than that he assisted Mr. Faxton, as 
 acting on behalf of Captain Tubbs ; that he has no interest whatever 
 in this ship or in this cargo ; " having nevertheless stated in the peti- 
 tion, that the being prevented landing this article would be a most 
 serious injury to him. 
 
 As to the pretence which has been set up, that this tobacco came 
 merely as other goods do, for reexportation, and that, on application 
 for leave to the governor, it was permitted to be landed there, it is 
 perfectly clear that, in reality, this was only for the purpose of faci- 
 litating the importation, for they admit from the beginning that they 
 meant to import ; and this, therefore, was only the vehicle for that 
 importation. The mode in which it was to be imported was this, 
 
HIGH COURT OF ADMIRALTY. 301 
 
 The Adams. Edw. 
 
 (and it was a contrivance for that purpose only,) the tobacco was to 
 conne there openly, as for reexportation, and then, upon leave apjSllied 
 for by them, and given by the governor for theiniportation, it was to 
 be imported. But no reexportation entered into the minds 
 of the persons who * were parties to this business ; it is evi- [ *301 ] 
 dent that their original intention was importation only, first 
 taking these steps for the sole purpose I have stated. I am, therefore, 
 clearly of opinion, that there is nothing of bona fides in this case (to 
 say the least of it) that challenges any peculiar consideration towards 
 these parties. 
 
 The next justification which has been set up, and which is of a 
 very grave kind, is, that authority was given by an actual permission 
 to land these goods by the governor and council, and afterwards (as 
 is pleaded) by the custom-house officer. Now the conduct of the 
 custom-house officer certainly adds nothing to the authority, because 
 it is perfectly clear that Mr. Grant, conceiving he was bound in duty 
 to obey the governor and council, did not confirm those orders, but 
 acted merely in conformity to them ; and if the act is not legalized 
 by the governor, still less will it be so by the obedience the officer 
 felt himself bound to give to the act of the governor. The case, 
 therefore, is confined to the authority of the governor, acting by the 
 advice of his council; and upon that the question comes to this, 
 (which is a constitutional question, in the colonies, of considerable 
 extent, undoubtedly.) namely, what authority the governor had to 
 grant a permission for the landing of articles not permitted by law to 
 be imported ? 
 
 That a governor generally has no such authority, I think is most 
 clear, both upon general principles, and likewise upon the history of ■ 
 the laws that apply to this particular subject.^ Upon all general 
 principles, surely not ; because it would amount to a power of dis- 
 pensing with the acts of parliament, which the constitution 
 of this country does not allow to the * sovereign himself. [ * 302 ] 
 Nobody contends that the crown, even here, can legally per- 
 mit articles to be imported which are excluded by statute, unless 
 where a discretion is vested in the crown by statute. If such per- 
 mission is given, (which pressing occasions may undoubtedly call 
 for,) it requires an indemnity for those who advise, and for those who 
 carry it into execution ; for it is an undoubted violation of the law in 
 every instanCfe in which it occurs. And it never can be said that the 
 derived authority of a governor under the crown can be less restricted 
 
 1 [The Vixen, 1 Dod. 145.] 
 
 18* 
 
303 CASES DETERMINED IN THE 
 
 The Adams. Edw. 
 
 than that of the crown itself, in the use of its prerogative upon such 
 makers. So much for general principle. 
 
 Upon the particular history of the laws applying to this subject, 
 how does the case stand ? . It is matter of perfect notoriety that, 
 owing to the difficulty of obtaining supplies during the war, it had 
 been the practice of the governors of the colonies to permit the 
 importation of such articles as were really necessary for the subsist- 
 ence of the inhabitants of their several settlements. They have been 
 in the habit of granting such permissions ; but it is matter of-cqual 
 notoriety that acts of parliament^ were regularly passed, in order to 
 indemnify the governors for having so acted in breach of the law ; 
 and those acts have, at the same time, most explicitly recognized that 
 such permissions have no validity whatever in law. What is the 
 language of all those particular acts of validity ? It is : — "Whereas, 
 under necessity, governors have permitted certain articles to be 
 landed, the same, on the ground of necessity, ought to be justified 
 by an act of parliament, and rendered valid and of due force in 
 law ; " plainly admitting that, without a statute applied, 
 [ * 303 ] they would * be of no force in law whatever. And a fun- 
 damental provision made is, " that all actions already com- 
 menced shall be stayed ; " evidently again admitting that prosecu- 
 tions might be commenced on account of those breaches of the law. 
 Such a provision as this occurs in every one of ^hose acts, manifestly 
 recognizing that parties might sue, ancf might recover the penalties, 
 and do every thing which can be done, where a law has been in- 
 fringed, for the recovery of the penalties given by statute for those 
 infringements. 
 
 Since that time another policy has been adopted by the statute of 
 the 46th of his present Majesty.^ When this subject came to be 
 reconsidered, it was thought extremely .unadvisable that this irregular 
 and somewhat unseemly practice should be continued, and another 
 policy was adopted, and this policy was, that the crown, which had 
 not the power before, should now have the authority conferred upon 
 it of directing the governors of the several colonies to permit such 
 and such articles to be imported. But the act of parliament which 
 introduces and establishes this policy most expressly recognizes, that 
 all that had been done by the governors without such an authority as 
 this being communicated to them, was a violation of the law, for it 
 begins in this manner : " Whereas it is necessary that provision should 
 be made for meeting such emergencies in future, without the neces- 
 / , 
 
 1 34 Geo. in. c. 35. 2 46 Geo. Hi:, c. 111. 
 
HIGH COUET OF ADMIRALTY. 304 
 
 The Adams. Edw. 
 
 sity of frequent violations of the law by his Majesty's officers ap- 
 pointed and sworn to administer and execute the same;" treating, 
 therefore, what the governors had done as manifest violations of the 
 law, and to be justified only by necessity. This is a recognition that 
 they are violations of the law in every instance in which they occur; 
 one is not more a violation of the law than another; it is 
 not the frequency * that makes the violation, but it is a [ * 304 ] 
 violation in every instance. It is so considered by this sta- 
 tute, the object of which, it is evident, was to prevent violations of 
 the law, not to continue them, and to confine the power of making 
 provisions for such occasions to his Majesty and his council ; taking 
 away from the governor and his council, (if that can be said to be 
 taken away which they never had,) a power which they did not possess, 
 but whichthey had exercised, and taken upon themselves to exercise, 
 under circumstances of apparent necessity. I cannot help thinking, 
 that if, under the state of the law as now modelled, a power of that 
 sort is assumed, it is a more direct breach of the law than even before ; 
 for as it stood formerly, the authority was not possessed anywhere. 
 No provision was made for its existence or exercise, and if it could be 
 said to exist, it existed just as much in the governor as the crown, for 
 in truth it existed in neither. But now it is vested exclusively and 
 positively in the crown, therefore here is now an additional obligation 
 on the part of the governor not to trespass on that power which the 
 wisdom of the state has confided exclusively to the discretion of the 
 crown ; here is now an additional ground on which the illegality of 
 such an act is to be considered as still more substantially founded. 
 
 His Majesty has, as far as this particular case is concerned, acted 
 upon the authority so communicated to him by certain public orders 
 conveyed to the governors of the plantations, containing therein an 
 enumeration of the articles which, under the exercise of his authority, 
 he permits to be imported, notwithstanding the prohibitions of the 
 statute, and by this enumeration they are unavoidably bound ; they 
 cannot travel out of it a hair's breadth. I do not say that occasions 
 may not arise in which mere political responsibility might 
 *be satisfied upon a deviation of this nature, but legal [* 305] 
 responsibility certainly cannot. If facts of this kind, though 
 done under kn adequate political responsibility, are examined in a 
 court of justice, into which they are brought by any person having 
 a right to bring them into such court of justice, the permission of any 
 other, except of that personage who is authorized by express words 
 of the statute to grant it, must be considered as giving no force what- 
 ever to anything done under such permission. 
 
 In this particular case, tobacco is not found among the articles per- 
 
306 ^ CASES DETERMINED IN THE 
 
 The Adams. Edw. 
 
 mitted by such authority as the law under this explanation can alone 
 respect, unless it is found under the description of provision ; and I 
 cannot think that it is found there, either in the nature of the thing 
 itself, or in the understanding of the parties. By provision, in the 
 statute, is to be understood human food — that which contributes to 
 the sustenance of the body. The use of tobacco in this island, as 
 far as one can collect from the evidence, is principally for smoking, 
 and there is much talk "of the manufacture of cigars, and the extreme 
 use of it to the natives and the slaves in the rainy season. But sup- 
 posing it to be applied in the other way, of mastication, bringing it 
 nearer to the application of food, I think it is not liable to be so con- 
 sidered, either physically or legally. It is a plant of the narcotic 
 kind, which removes appetite by acting as narcotics do, by deadening 
 the faculties of the stomach, but not by conveying nutriment ; it is 
 not alimentary in any degree, and is not so considered. It is, indeed, 
 I understand, here supplied by the victualling board to the navy, but 
 
 not as provision in any other sense than that it is provided 
 [ * 306 ] — not in the real intelligible use of the * word as nutriment. 
 
 It is known that in this use of it the extract is generally re- 
 jected from the mouth, not taken into the stomach, and if casually 
 received there, it is received not as matter of nutrition. It may be 
 an article of luxury, and in persons of certain habits of life becomes 
 aii article of necessity, and may be salutary in some of its effects ; 
 but it is not provision in the sense of food ; it is not that which is 
 understood to convey nourishment to the body, though as a narcotic 
 it may sometimes render the use of food unnecessary. Most clearly, 
 in the understanding of all the parties, it was not considered as pro- 
 vision ; for if so, how comes it that a particular permission was 
 "-applied for; that these certificates of merchants were obtained; and 
 that this authority for importation was finally granted. All these 
 steps were perfectly unnecessary, if tobacco was comprised under the 
 description of the licensed article provisions. They prove, beyond all 
 contradiction, that all the parties in this transaction took a view 
 utterly inconsistent with any such pretension. 
 
 The next principle which has been resorted to in justification of this 
 act is, that though the governor has not generally (and it can hardly 
 be -argued that he generally has) a power of importation, yet that he 
 has in cases of necessity. And I must admit that in cases of great 
 and imperious, and what I may describe as tyrannical necessity, (and 
 that demonstrated by clear and irresistible evidence,) the court will 
 strain hard to give to the parties, even in the administration of these 
 unbending laws, the benefit of those maxims in which the common 
 sense and feelings of mankind have always acquiesced. — Necessity 
 
HIGH COURT OF ADMIRALTY. 307 
 
 The Adams. Edw. 
 
 has no law, necessitas quicquid cogit defendit. Nemo tenetur ad im- 
 possibile — it would be inhuman for a court of justice to say that it 
 is by these laws to bind human creatures to the miseries of 
 * famine. Whether such a necessity could be pleaded or not, [ * 307 J 
 in respect of an article of mere luxury, is a question I will 
 not enter into ; probably it might, if that which originally was con- 
 sidered as an article of mere luxury was converted into an article of 
 necessity. But I must accompany this with the observation, that 
 the existence of the necessity must be pleaded and proved to the" 
 satisfaction of the court which is to examine the plea and the proof. 
 I cannot admit that the court is to" take that upon the authority of 
 the governor, and to consider the act of the governor as conclusive 
 evidence of the existence of the necessity. I am inclined to give 
 to persons in that honorable situation every presumptive conclusion ; 
 but the court must have the evidence in support of such a plea, and 
 a fair and candid view of that evidence with its own eyes, before it 
 can receive it for any legal purpose whatever. 
 
 In the next place, I say no such necessity is in thfe case alleged, 
 as far at least as the importation of the tobacco is concerned; for 
 what does the petition of the merchants state in this case ? I have 
 observed already that all they state is, "that they would be losers;" 
 they state no distress of the colony on that account, but only that if 
 this tobacco is not permitted to be imported they individually would 
 Be injured. Then follows a certificate of the merchants, which cer- 
 tainly is far from showing any thing like that public necessity. It is 
 to be found in page 32, and is to this effect: " We, the undersigned 
 merchants of the port of Spain, give it as our opinion that the land- 
 ing of the said tobacco," What? — Is necessary to the safety of the 
 colony or the preservation of the inhabitants ? No ; but that it " will 
 be of no detriment to the British trade." This considera- 
 tion, I perceive, has found its *way into the act of the [*308] 
 governor, for there is written upon it, " granted, provided the 
 tobacco is unmanufactured ; " and it is also introduced into the sen- 
 tence of the judge of the court below, who observes, " that the per- 
 mission to import unmanufactured tobacco will not injure the British 
 trader." Now, certainly, grounds of commercial policy will never 
 legalize such an act, if those grounds were ever so solidly founded 
 and clearly made out. On the best consideration I can give to this 
 evidence, I should very much doubt whether I could venture so to 
 characterize them, for I see this clearly, that the effect of this indul- 
 gence is to give a very great and preponderating advantage to the 
 American merchants in this trade over the British. It appears, upon 
 the evidence of Mr. Hudson and Mr. Grant, that in two months, from 
 
309 CASES DETERMINED IN THE 
 
 The Adams. Edw. 
 
 the 1st of June to the 10th of August, 30 hogsheads only were im- 
 ported by the British merchants, and 76 by the Americans, under 
 permission of the governor. It is perfectly clear (if I allowed myself 
 to form a judgngent upon this evidence alone) that the result of this 
 must, be to drive the British navigation out of the markets of this 
 island, in direct contravention to the policy of the system of the 
 navigation laws. -However, I am too well aware of the want of local 
 information upon such a subject to entertain any other than a very 
 different opinion upon it, and, therefore, I am perfectly prepared to 
 suppose that those persons who have a much more intimate and com- 
 prehensive view of the subject, may be better qualified to form 
 correct judgments upon grounds of commercial policy; but I must 
 add, that if these judgments upon which the acts of the governor 
 have proceeded were most unimpeachably correct, they would not 
 sustain the acts which have taken such grounds for their 
 [ * 309 ] legal basis. If there are such grounds of policy * that call 
 for the admission of such articles, what is the course pointed 
 out by the law? — to represent these grounds to the king, and to 
 leave the judgment of commercial policy where the law has placed 
 it, and to act under orders emanating from the royal authority 
 itself. 
 
 In the next place, I say that if there is no necessity alleged, still 
 less is there a necessity proved. In fact, the contrary is proved in 
 this case. It is stated in the evidence of one of these merchants, 
 who were called for the claimant, " that sixty hogsheads of tobacco 
 is the average consumption for six months," that is ten hogsheads a 
 month. Now, between the 1st of June and the 10th of August it 
 appears that there were one hundred and six hogsheads imported, 
 and none exported ; that is proved by the collector of the customs ; 
 and several merchants prove that they had large quantities on hand; 
 that the importation was far beyond the average consumption, and 
 that there had been a rise only of twenty-five per cent, in point of 
 price. If there was any real distress or urgency that could create an 
 alarm, or amount to a necessity, it certainly does not appear upon 
 the evidence, to which I must confine myself; what might be matter 
 of notoriety in the island, or matter of local feeling, is out of the 
 question, because it is out of sight. Confining myself to this evi- 
 dence, I see no reason whatever for believing it. 
 
 Another ground which has been resorted to, has been an address 
 rather to the misericordia of the court, on account of the probable 
 ignorance of a foreign captain, coming in, not acquainted with the 
 law and misled by the governor, the extent of whose authority he 
 could not accurately define. To this it is an obvious answer, that 
 
HIGH COURT OF ADMIRALTY. 310 
 
 The Adams. Edw. 
 
 whoever trades with a country, be he a foreigner or not, is 
 bound to know the laws *of that country with which he [*310] 
 trades, as far as they concern his own acts, be the nature of 
 those laws and the extent of them what they may. If he trades 
 under the advice even of a skilful practitioner of the law, and that 
 advice proves erroneous, I fear that it is an indispensable principle of 
 the law that it will not protect him from forfeiture. If he trades 
 under an authority that is insufficient, it will not protect him, be- 
 cause he is as much bound to know the extent of that authority, 
 relatively to himself in that act of trading, as he is to know any other 
 circumstance that is required to constitute the legality of the act. 
 
 But I consider not so much in this case the American master, as 
 the importers — those British merchants who knowingly entered into 
 a contract at a time when it was clearly illegal, who surprised the 
 vigilance, and in some measure abused the honorable intentions of 
 the governor, and led on this American captain into what I am 
 legally bound to consider as a violation of the law. 
 
 Having considered this case with much attention, not only to its 
 own merits, but' likewise to that which is due to the official situa- 
 tions, and to the honorable characters of the persons under whose 
 authority the act in question has been done, I feel myself under the 
 necessity of declaring, that it is, in my apprehension, to be considered 
 as an illegal act; and incurring the penalties which are created by 
 the statute. The question then remains, what are those penalties ? 
 The proceeding is certainly upon the old navigation law, which 
 would embrace the whole extent of the forfeiture of the ship, and the 
 entire value of the cargo. But I am of opinion, that the parties, 
 being Americans, are entitled, by the Intercourse Act,^ to a 
 moderation of "those penalties; and that it having been *de- [ * 311 ] 
 termined that, by the provisions of that Intercourse Act, 
 (the act which regulates the intercourse between the subjects of the 
 United States and his Majesty's subjects,) the penalty shall e:iWend 
 only to the forfeiture of the ship and the noxious articles, they have 
 a right to have that benefit; this being a proceeding under the navi- 
 gation laws, which quo ad hoc must be considered, as they respect 
 the Americans, so iar in a state of suspension. It was contended 
 that the fish were liable to be considered as noxious articles. I think 
 they are not to be so considered, for it appears that the prohibition 
 of fish had not arrived when this transaction took place ; the parties 
 came under an invincible ignorance, which must excuse them, and 
 
 1 28 Geo. in. c. 6. 
 
312 CASES DETERMINED IN THE 
 
 The Fox and others. Edw. 
 
 therefore the confiscation cannot extend to that article. The to- 
 bacco is liable to forfeiture, and the ship likewise, and as such, there- 
 fore, I must condemn them. I affirm the sentence with respect to 
 the other parts, and condemn the ship and the twenty-five hogsheads 
 of tobacco ; and, I think, I should not give the seizor that protection 
 which this court ought to afford him, if I did not give him his costs 
 in both courts. 
 
 Fox and others.^ 
 
 May 30, 1811. 
 Blockade, breach of, under the order 26th April, 1809. Condemnation. 
 
 Judgment. 
 
 Sir W. Scott. This was the case of an American vessel which 
 
 was taken on the 15th November, 1810, on a voyage from Boston to 
 
 Cherbourg. It is contended, on the part of the captors, that, under 
 
 the order in council of 26th April, 1809, this ship and cargo, being 
 
 destined to a port of France, are liable to confiscation. On 
 [ * 312 ] the part of the claimants it has *been replied, that the ship 
 
 and cargo are not confiscable under the orders in council; 
 first, because these orders have in fact become extinct, being profess- 
 edly founded upon measures w'hich the enemy had retracted; and, 
 secondly, that if the orders in council are to be considered as exist- 
 ing, there are circumstances of equity in the present case, and in the 
 others that follow, which ought to induce the court to hold them ex- 
 onerated from the penal effect of these orders. 
 
 In the course of the discussion a question has been started, what 
 would be the duty of the court under orders in council that were re- 
 pugnant to the law of nations ? It has been contended on one side, 
 that the court would at all events be bound to enforce the orders in 
 council; on the other, that the court would be bound to apply the 
 rule of the law of nations adapted to the particular case, in disregard 
 of the orders in council. I have not observed, however, that these 
 orders in council, in their retaliatory character, have been described 
 in the argument as at all repugnant to the law of nations, however 
 
 1 [See App. to 6 C. Kob. ; 1 Duer on Ins. 644 ; The Snipe, Edw. 381.] 
 
HIGH COURT OF ADMIRALTY. 313 
 
 The !Fox and others. Edw. 
 
 liable to be so described if merely original and abstract. And, there- 
 fore, it is rather to correct possible misapprehension on the subject 
 than from the sense of any obligation which the present discussion 
 imposes upon me, that I observe that this court is bound to adminis- 
 ter the law of nations to the subjects of other countries in the differ- 
 ent relations in which they may be placed towards this country and 
 its government. This is what others have a right to demand for their 
 subjects, and to complain if they receive it not. This is its unwrit- 
 ten law, evidenced in the course of its decisions, and collected from 
 the common usage of civilized states. At the same time it is strictly 
 true, that by the constitution of this country, the king in 
 council 'possesses legislative rights over this court, and has [ * 313 ] 
 power to issue orders and instructions which it is bound to 
 obey and enforce ; and these constitute the written law of this court. 
 These two propositions, that the court is bound to administer the 
 law of nations, and that it is bound to enforce the king's orders in 
 council, are not at all inconsistent with each other ; because these 
 orders and instructions are presumed to conform themselves, under 
 the given circumstances, to the principles of its unwritten law. They 
 are either directory applications of those principles to the cases indi- 
 cated in them; cases which, with all the facts and circumstances 
 belonging to them, and which constitute their legal character, could 
 be but imperfectly known to the court itself; or they are positive 
 regulations, consistent with those principles, applying to matters which 
 require more exact and definite rules than those general principles 
 are capable of furnishing. 
 
 The constitution of this court, relatively to the legislative power 
 of the king in council, is analogous to that of the courts of common 
 law, relatively to that of the parliament of this kingdom. Those courts 
 have their unwritten law, the approved principles of natural reason 
 and justice ; they have likewise the written, or statute law, in acts 
 of parliament, which are directory applications of the same principles 
 to particular subjects, or positive regulations consistent with them, 
 upon matters which would remain too much at' large if they were 
 left to the imperfect information which the courts could extract from 
 mere general speculations. What would be the duty of the indi- 
 viduals who preside in those courts, if required to enforce an act of 
 parliament, which contradicted those principles, is a question which 
 I presume they would not entertain d priori ; because they 
 will not entertain d priori the supposition "that any such [ *314 ] 
 will arise. In like manner, this court will not let itself loose 
 into speculations, as to what would be its duty under such an emer- 
 
 EDW. 19 
 
315 CASES DETERMINED IN THE 
 
 The Pox and others. Edw. 
 
 gency ; because it cannot, without extreme indecency, presume that 
 any such emergency will happen. And it is the less disposed to 
 entertain them, because its own observation and experience attest 
 the general conformity of such orders and instructions to its princi- 
 ples of unwritten law. In the particular case pf the orders and 
 instructions which give rise to the present question, ihe court has not 
 -heard it at all maintained in argument that, as retaliatory orders, 
 they are not conformable to such principles ; for retaliatory, order's 
 they are. They are so declared in their own language, and in the 
 uniform language of the government which has established them. I 
 have no hesitation in saying that they would cease to be just if they 
 ceased to be retaliatory ; and they would cease to be retaliatory from 
 the moment the enemy retracts, in a sincere manner, those measures 
 of his which they were intended to retaliate. 
 
 The first question is, what is the proper evidence for this court to 
 receive, under all the circumstances that belong to the case, in proof 
 of the fact that he has made a bond fide retractation of those mea- 
 sures. Upon this point, it appears to me that the proper evidence 
 for the court to receive is the declaration of the state itself which 
 issued these retaliatory orders, that it revokes them in consequence 
 of such a change having taken place in the conduct of the enemy. 
 When the state, in consequence of gross outrages upon the law of 
 nations committed by its adversary, was compelled, by a necessity 
 which it laments, to resort to measures which it otherwise condemns, 
 
 it pledges itself to the revocation of those measures as soon 
 [ * 315 ] as the necessity * ceases. And, till the state revokes them, 
 
 this court is bound to presume that the necessity continues 
 to exist. It cannot, without extreme indecency, suppose that they 
 would continue a moment longer than the necessity which produced 
 them, or that the notification that such measures were revoked would 
 be less public and formal than their first establishment. Their esta- 
 blishment was, doubtless, a great and signal departure from the ordi- 
 nary administration of justice in the ordinary state of the exercise of 
 public hostility ; but was justified by that extraordinary deviation 
 from the common exercise of hostility in the conduct of the enemy. 
 It would not have been within the competency of the court itself to 
 have applied originally such rules, because it was hardly possible for 
 this court to possess that distinct and certain information of the 
 facts to which alone such extraordinary rules were justly applicable. 
 It waited, therefore, for the communication of the facts ; it waited, 
 likewise, for the promulgation of the rules that were to be practically 
 applied ; for the state might not have thought fit to act up to the 
 extremity of its rights on this extraordinary occasion. It might, from 
 
HIGH COURT OF ADMIRALTY. 316 
 
 The Fox and others. Edw. 
 
 motives of forbearance, or even of policy, unmixed with any injus- 
 tice to other states, have adopted a more indulgent rule than the law 
 of nations would authorize ; though it is not at liberty ever to apply 
 a harsher rule than that law warrants. 
 
 In the case of the ^edish convoy, which has been alluded to, no 
 order or instruction whatever was issued, and the court,^|jerefore, 
 was left to find its way to that legal conclusion which its^ilgment 
 of the principles of the law led it to adopt. But certainly if the state 
 had issued an order that a rule of less severity should be applied, this 
 court would not have considered it as any departure from 
 its duty to act * upon the milder rule which the prudence of [ * 316 ] 
 the state was content to substitute in support of its own 
 rights. In the present case, it waited for the communication of the 
 fact and the promulgation of the rule. It is its duty in like manner 
 to wait for the notification of the fact, that these orders are revoked 
 in consequence of a change in the conduct of the enemy. 
 
 The edicts of the enemy themselves, obscure and ambiguous in 
 their usual language, and most notoriously and frequently contra- 
 dicted by his practice, would hardly afford it a satisfactory evidence 
 of any such change having actually and sincerely taken place. The 
 state has pledged itself to make such a notification when the fact 
 happens : it is pledged so to do by its public declarations — by its 
 acknowledged interpretations of the law of nations — by every, act 
 which can excite a universal expectation and demand, that it shall 
 redeem such a pledge. Is such an expectation peculiar to this court ? 
 Most unquestionably not. It is universally felt, and universally ex- 
 pressed. What are the expectations signified by the American go- 
 vernment in the public correspondence referred to ? Not that these 
 orders would become silently extinct under the interpretation of this 
 court, but that the state would rescind and revoke them. What is 
 the expectation expressed in the numerous private letters exhibited to 
 the court amongst the papers found on board this class of vessels ? 
 Not that the British orders had expired of themselves, but that they 
 would be removed and repealed by public authority. If I took upon 
 myself to annihilate them by interpretation, I should act in opposi- 
 tion to the apprehension and judgment of all parties concerned — of 
 the individuals whose property is in question, and of the American 
 government itself, which is bound to protect them. 
 
 * Allusion has been made to two or three cases, in which [ * 317 ] 
 this court is said to have exercised a power of qualifying 
 and moderating the general terms of an order in council, as in the 
 case of The Lucy, Taylor, in which the general terras of the order 
 subjected to confiscation all ships transferred by the enemy to neu- 
 
318 CASES DETERMINED IN THE 
 
 The ]?ox and others. Edw. 
 
 trals durin'g the war, and yet this court held, that these general terms 
 did not extend to prize ships so transferred by the enemy. But what 
 was the ground of that interpretation ? It was this — The rule itself ' 
 was adopted from the rule of the enemy, a^ upon a principle of 
 exact retaliation ; for it was declared in the eUpess terms of the pre- 
 amble ^^le order, that it was just to apply the same rule to the ene- 
 my wl^w he was in the habit of applying to this country. And 
 when the court found, upon satisfactory evidence, that .the enemy did 
 not apply any such rule to prize ships, but specially exernpted them, 
 it would have pronounced, in direct contradiction to the avowed prin- 
 ciple of the order itself, if it had not followed the enemy in this 
 acknowledged distinction. It has likewise been urged that cases 
 may be found in which the court has presumed a revocation, though 
 no such revocation has been promulged. And it is certainly true 
 that where an essential change in the circumstances that occasioned 
 the order has, in effect, extinguished its subject matter, and that 
 change of circumstances has been publicly declared by the state, the 
 court has not thought it necessary to wait for a formal revocation 
 itself. In the case of the Baltic order, by which, in compliance with 
 the wishes of its allies in the war, the government of this country 
 granted an immunity from the molestation of capture in that sea, 
 the court held that order to be revoked when the state had 
 [ * 318 ] declared that most of those states * to whose applications, 
 as allies, that indulgence had been granted, had changed the 
 character of allies for that of enemies. It was quite unnecessary to 
 wait for such a special revocation when, by the general declaration of 
 war, all hostilities had been authorized against them. 
 
 Admitting, however, that there may be cases of presumed revoca- 
 tion, does it follow that this is, with any propriety, to be considered 
 as one of those cases? The novelty of these orders in council — the 
 magnitude — the complexity — the extraordinary nature of the facts 
 to which they owe their origin — the attention which they called for 
 and excited both at home and abroad — the pledges given by this 
 state and accepted by other states, all disqualify this court from 
 taking upon itself to apply a presumed revocation in any such case. 
 Supposing, however, that the court felt itself at liberty to accept as 
 satisfactory, other evidence of a sincere retraction of the French de- 
 crees, what is the amount of the evidence offered ? No edict — no 
 public declaration of repeal — no reference to cases in which the 
 courts of that country have acted upon any such revocation. The 
 only case mentioned was that of the New Orleans Packet, and it was 
 brought forward in such a way, so void of ail authenticity, and of all 
 accurate detail of particulars, as to make it hardly possible for me to 
 
HIGH COURT OF .ADMIRALTY. 319 
 
 The Fox and others. Edw. 
 
 allude to it with any propriety, and much less with any legal effect. 
 What the circumstances of that case were, in what form, and under 
 what authority, and on what account released, did not at all appear. 
 Whether at all applicable to the present question, whether a mere 
 irregularity, or what was its real character, the court could not learn. 
 This, however, is matter of notoriety, that these decrees are pro- 
 nounced fundamental laws of the French empire — that 
 they were declared so in their original formation* — and [*319] 
 that they have been since so declared repeatedly and re- 
 cently — long since the date of the present transactions. The decla- 
 ration of the person styling himself Duke de Cadore, imports no revo- 
 cation ; for that declaration imports only a conditional retractation, 
 and this upon conditions known to be impossible to be complied 
 with. It has been urged that the American government has consi- 
 dered it otherwise, and has so declared it for the regulation of the 
 conduct of the people of that country. If such is the fact, it is not 
 for me to lose sight of that respect which is due to the acts of a 
 foreign government so far as to question the propriety of any inter- 
 pretation which they may have given to such an instrument. But 
 when the effect of such an instrument is pressed upon me for the 
 purpose of calling for my decision, I must be allowed to interpret it 
 for myself, and to act upon that interpretation. And to me it ap- 
 pears that the declaration, clogged as it is with stipulations known 
 to be beyond the reach of all rational hope of any possible compli- 
 ance, is in effect a renunciation of any serious purpose of repealing 
 those decrees. I think I might invoke the authority of the govern- 
 ment of the United States for denying to this French declaration 
 the effect of an absolute repeal, when I observe that the period which 
 they have allowed to the British government for revoking our orders 
 in council extends to the 2d of February — an allowance which could 
 hardly have been made if the revocation on the part of France had 
 really taken place at the time to which that declaration purports to 
 refer. 
 
 In the absence of any declaration of the British government to 
 such an effect, there is a total failure of all other evidence (if the 
 court were at liberty to accept other evidence as satisfactory) that 
 the French decrees had been revoked. If I were driven to 
 * decide upon that evidence, independent of all evidence to [ * 320 ] 
 be regularly furnished by the government under whose 
 authority I sit, I think I am bound to pronounce that no such revo- 
 cation has taken place, and, therefore, that the orders in council sub- 
 sist in perfect justice as well as complete authority. 
 
 It is incumbent upon me, I think, to take notice of an objection 
 19* 
 
« 
 321 CASES DETERMINED IN THE 
 
 The Pox and others. Edw. 
 
 of Dr. Herbert's, to the existence of the orders in council — namely, 
 that British subjects are, notwithstanding, permitted to trade with 
 France, and that a blockade which excludes the subjects of all other 
 countries from trading with ports of the enemy, and at the same time 
 permits any access to those ports to the subjects of the state which 
 imposes it, is irregular, illegal, and null. And I agree to the position 
 that a blockade, imposed for the purpose of obtaining a commercial 
 monopoly for the private advantage of the state which lays on such 
 blockade, is illegal and void on the very principle upon which it is 
 founded. But, in the first place, (though that is matter of inferior 
 consideration,) I am not aware that any such trade between the sub- 
 jects of this country and France is generally permitted. Licenses 
 have been granted certainly in no inconsiderable numbers ; but it 
 never has been argued that particular licenses would vitiate a block- 
 ade. If it were material in the present case, it might be observed, 
 that many more of these licenses had been granted to foreign ships 
 than to British ships, to go from this country to France and to return 
 here from thence with cargoes. But, secondly, what still more clearly 
 and generally takes this matter Qut of the reach of the objection, is 
 the particular nature and character of this blockade of France, if it 
 is so to be characterized. It is not an original, independent 
 [ * 321 ] act of blockade, * to be governed by the common rules that 
 belong simply to that operation of war. It is, in this in- 
 stance, a counteracting, reflex measure, compelled by the act of the 
 enemy, and, as such, subject to other considerations arising out of its 
 peculiarly distinctive character. France declared that the subjects of 
 other states should have no access to England ; England, on that 
 account, declared that the subjects of other states should have no 
 access to France. So far this retaliatory blockade (if blockade it is 
 to be called) is coextensive with the principle : neutrals are prohi- 
 bited to trade with France, because thfey are prohibited by France 
 from trading with England. England acquires the right, which it 
 would not otherwise possess, to prohibit that intercourse, by virtue of 
 the act of Francp. Having so acquired it, it exercises it to its full 
 extent, with entire competence of legal authority : and having so 
 done, it is not for other countries to inquire how far this country may ' 
 be able to relieve itself further from the aggressions of that enemy. 
 The case is settled between them and itself by the principle on which 
 the intercourse is prohibited. If the convenience of this country, be- 
 fore this prohibition, required some pccasional intercourse with the 
 enemy, no justice that is due to other countries requires that such an 
 intercourse should be suspended on account of any prohibition im- 
 posed upon them on a ground so totally unconnected with the ordi- 
 
HIGH COURT OF ADMIEALTY. 322 
 
 The Tox and others. Edw. 
 
 nary principles of a common measure of blockade, from which it is 
 thus distinguished by its retaliatory character. 
 
 The last question is, are there any circumstances addressed to equi- 
 table consideration, that can relieve the claimants from the penal 
 effects of these orders ? Certainly, if any could be urged 
 that arose from the * conduct of the British government [ * 322 ] 
 itself, they might be urged with a powerful, and even irre- 
 sistible effect ; but if they found themselves in the fraud of the enemy, 
 or in the misapprehensions of the American government induced by 
 the fraud of the enemy, they found no claim on the British govern- 
 ment, or on British tribunals. In tHe one case they must resort for 
 redress to a quarter where, I fear, it is not to be found, — to the govern- 
 ment of the enemy : in the other, where, I presume, it is to be found, 
 — to the government of their own country. 
 
 Upon the declaration of the American government, I have already 
 said as much as consists with the respect which I am bound to pay 
 to the declaration of a foreign government professedly neutral. The 
 custom-houses of that country, say the claiqjants, cleared us out for 
 France publicly, and without reserve. They did so ; but they left 
 the claimants to pursue all requisite measures for their own security, 
 in expectation, I presume, that they would inform themselves, by legal 
 inquiry, whether the blockade continued to exist, if its continuance 
 was uncertaip. That it was perfectly uncertain in their own appre- 
 hensions, is clear from the tenor of these letters of instructions to the 
 different masters of these vessels. In these letters, which are nume- 
 rous, all is problematical between hope and (ear, — a contest between 
 the desire of getting first to a tempting market on the one side, and 
 the possible hazard of British capture on the other ; and it is to be 
 regretted that the eagerness of mercantile speculation has prevailed 
 over the sense of danger. In such a state of mind, acting upon cir- 
 cumstances, the party must understand that he takes the chance of 
 events, — of advantage, if the event which he hopes for has taken 
 place, and of loss, if it Has not. It is his own adventure, 
 *and he must take profit or loss, as the event may throw it [ *323 ] 
 upon him. He cannot take the advantage without the 
 hazard of loss, unless by resorting to British ports in the Channel, 
 where certain information may be obtained, on the truth of which all 
 prospects of loss or profit may safely be suspended. On the* British 
 government no responsibility can be charged. They were bound to 
 revoke as soon as they were satisfied of the sincere revocation of the 
 French decrees. Such satisfaction they have not signified, and I am 
 bound to presume that no such satisfaction is felt. With respect to 
 the demand of warning, the orders themselves are full warning. 
 
324 CASES DETERMINED IN THE 
 
 The Fox and others. Edw. 
 
 They are the most formal admonitions that could be given ; and 
 being given and revoked, they require no subsidiary«notice. 
 
 On the grounds of the present evidence, I therefore see no reason 
 to hold the claimants discharged ; but I do not proceed to an ultimate 
 decision upon their interests, till I see the effect of that additional 
 evidence which is promised to be produced upon the fact of the 
 French retractation of their decrees, said to have been very recently 
 received from Paris by the American charge d'affaires in this country. 
 Having no official means of communicating with foreign ministers, I 
 shall hope to receive the information in a regular manner, through 
 the transmission of the British o&ces of state. 
 
 Judgment, resumed. 
 Sir William Scott. As the claimants have failed to produce any 
 evidence of the revocation of the French decrees, and have nothing 
 to offer as the foundation of a demand for further time, I must con- 
 form to what I declared on a former day, and proceed to 
 [ * 324 ] make the * decree effectual. I should certainly have been 
 extremely glad to receive any authentic information fending 
 to show that the decrees of France, to which these orders in council 
 are _ retaliatory, bad been revoked ; and it was upon a suggestion 
 offered on the part of the claimants, that despatches had been very 
 recently received from Paris by the American minister in this coun- 
 try, by which the fact might be ascertained, that the court, on the 
 former day, deferred its final judgment. It would have been unwil- 
 ling to proceed to the condemnation of these vessels, without giving 
 the proprietors the opportunity of showing that the French decr&es, 
 on which our orders in council are founded, had been revoked. But 
 they admit that they have no such evidence to produce ; the property 
 of the ships and cargoes is daily deteriorating, and it is my duty to 
 delay no longer the judgment which is called for on the part of the 
 captors. 
 
 From every thing that must have preceded, and from every thing 
 that must have followed the revocation of the French decrees, if such 
 revocation had taken place, I think I am justified in pronouncing that 
 no such event has ever occurred. The only document referred to on 
 behalf of the claimants is the letter of the person styling himself Due 
 de Cadore. That letter is nothing more than a conditional revocation : 
 it contains an alternative proposed, either that Great Britain shall not 
 only revoke her orders in council, but, likewise, renounce her prin- 
 ciples of blockade, — .principles founded upon the ancient and esta- 
 blished law of nations ; or that America "shall cause her neutral 
 rights to be respected ; in other words, that she shall join France in a 
 
HIGH COURT OF ADMIRALTY. 325 
 
 The Fox and others. Edw. 
 
 compulsive confederation against this country. It is quite impossible 
 that England should renounce her principles of blockade to 
 adopt the * new-fangled principles of the French govern- [ * 325 ] 
 ment, which are absolute novelties in the law of nations ; 
 and I hope it is equally impossible that America should lend herself 
 to a hostile attempt to compel this country to renounce those princi- 
 ples on which it has acted, in perfect conformity to ancient practice, 
 and the known law of nations, upon the mere demand of the person 
 holding the government of France. The casus faderus, therefore, if 
 it may be so called, does not exist ; the conditions on which alone 
 France holds out a prospect of retracting the decrees, neither are nor 
 can be fulfilled. Looking at the question, therefore, d priori, it can- 
 not be presumed that the revocation has passed. On the other hand, 
 what must have followed if such had been the fact ? "Why, that the 
 American minister in this country must have been in possession of 
 most decisive evidence upon the subject ; for I cannot but suppose 
 that the first step of the American minister at Paris would have been 
 to apprise the American minister at, this court of so momentous a 
 circumstance, with a view to protect the American ships and cargoes 
 which had been broughtrin under the British orders in council. If no 
 such information has been received by him, there never was a case in 
 which the rule, "cZe non apparentibus et non existentibus eadem est 
 ratio" can more satisfactorily apply. For it is quite impossible that 
 such a revocation can have taken place without being attended with 
 a clear demonstration of evidence that such was the fact. 
 
 I am, therefore, upon every view of the case, of opinion, that the 
 French decrees are, at this moment, unrevoked. But if by any possi- 
 bility it can have happened that an actual revocation has taken place 
 against the manifest import of the only public French declaration 
 referred to, and without having been yet communicated to 
 the American minister in *this country, who was so much [ *326 ] 
 concerned to know it, for the benefit of the persons for whose 
 protection it must have been principally meant, the parties will have 
 the advantage of the fact, if they can show upon an appeal that those 
 decrees have been revoked at a time and in a manner that could 
 justly be applied to the determination of these causes ; revoked at a 
 period which would reach the dates of this capture, and in a manner 
 unencumbered with stipulations, which it was well known this coun- 
 try could never accept, and to which there was every reason to pre- 
 sume that the ju^ice of America could never permit her to accede, 
 upon the refusal of Great Britian. On such a state of evidence the 
 claimants will carry up with them to the superior court the principle 
 that might entitle them to protection according to the view which 
 
327 CASES DETERMINED IN THE ' 
 
 The Goede Hoop. Edw. 
 
 this court has taken of the subject. But things, standing as they do 
 before me, — all the parties having acted in a manner that leads neces- 
 sarily to the conclusion that no bond fide revocation of the Berlin and 
 Milan decrees has taken place, — I must consider these cases as falling 
 within the range of the British orders in council, and, as such, they 
 are liable to condemnation. 
 
 [*327] ♦*GoBDB Hoop, Pieters. 
 
 November 7, 1809. 
 
 Ej^pired license. Parties having used due diligence, but prevented by accidents not within 
 their control from carrying their intentions into eifect within the time, entitled to pro- 
 tection. 
 
 This was a leading case^ and became of importance, as it furnished 
 the court with an opportunity of stating generally the principles by 
 which its decisions would be governed, in questions arising on the 
 capture of vessels sailing under British licenses. The ship was char- 
 tered at Marenries, to proceed in ballast to Rochelle, and there to 
 take on board her present cargo. She arrived at Rochelle on the 1st 
 of April, 1809, and completed her lading on the 13th of May, but did 
 not sail until the 29th June, on which day she was captured, as the 
 license had expired. The excuse set up was, that the ship was de- 
 tained after her cargo was on board, by an embargo which had been 
 imposed by the French government ; and that, for some days after 
 it w^as taken off, she was prevented from sailing by contrary winds. 
 
 [*328] * Judgment. 
 
 Sir W. Scott. This was the case of a vessel under 
 Oldenburg colors, which was captured in the prosecution of a voyage 
 from Rochelle to Hull, and brought to Plymouth. There was a 
 license on board granted to Henry Nodin, on behalf of himself and 
 other British merchants, for four vessels under particular colors, which 
 are enumerated, to proceed with cargoes of brandies from Charente, 
 Bordeaux, or any port of France not blockaded, to any port .of Great 
 Britain, and permitting the masters to receive their freights, and 
 depart with their vessels and crews. The license is dated 15th No- 
 vember, 1808, and is to remain in force six months from that period. 
 Now the ship was taken the 29th of June last, and, therefore, accord- 
 
HIGH COURT OF ADMIRALTY. 329 
 
 The Goede Hoop. Edw. 
 
 ing to the literal construction of the license, after the time had expired 
 during which it was to continue in operation. 
 
 This question has led to some discussion on the rules of interpreta- 
 tion to be applied to licenses generally ; and as those rules will, of 
 necessity, embrace a great variety of cases, it is extremely desirable 
 that they should be settled now, as far as this can be done by the 
 authority of this court. These licenses owe their origin to the gene- 
 ral prohibition, which declares it to be unlawful for the subjects of 
 this country to trade with the enemies of the king, without his per- 
 mission ; for a state of war is a state of interdiction of communica- 
 tion. That is a law which is not peculiar to this country, but one 
 which obtains very generally among the states of Europe. In former 
 wars this prohibition was attended with very little inconvenience, as 
 the greater part of the countries in the neighborhood remained neu- 
 tral, and presented to the belligerents various channels of 
 communications, through which * they obtained from each [ * 329 ] 
 other such commodities as they stood in need of. While 
 the world, therefore, continued in that state, of course licenses would 
 be granted only in very special cases, where it appeared that there 
 was a necessity to have a direct communication with the enemy ; 
 and, being matter of special indulgence, the application of them was 
 striciissimi juris. At the same time, when I so describe them, I do 
 not mean to say that there ever was a period in which a rational 
 exposition, allowing a fair and liberal construction of the intention 
 of the grantor, would not have been received. There never was a 
 period, for instance, in which it could have been contended that the 
 words, " six months," were subject to Such a strict and literal inter- 
 pretation, that a failure, arising from circumstances which the party 
 could not control, would have the effect of vitiating the license, 
 where he could show that he had used all due diligence, and was 
 prevented from completing the voyage within the time, by embar- 
 goes in foreign ports or by the fury of the elements. These are acci- 
 dents which prejudice no person ; and, therefore, I presume the time 
 never existed when the party would not have been at liberty in this 
 court to allege such facts, and when he would not have been entitled 
 to a virtual protection from its decisions, although the terms of the 
 license were not literally complied with. While he was baffled by 
 these obstructions, the intervening time was, as it were, annihilated, 
 and he was to be put again in possession of the time so lost. That 
 interval, in which he was not at liberty to act, was, in fair construc- 
 tion, no time, as to the operation of the license. It was a construc- 
 tion founded on the intention of the grantor, that M'here a party 
 had acted with good faith, and had complied with the terms 
 
330 CASES DETERMINED IN THE 
 
 The Goede Hoop. Edw. 
 
 [ * 330 ] prescribed as nearly as controlling * circumstances would 
 permit, he should have a fair indulgence respecting those 
 points in which he had been prevented from a literal performance, by 
 obstructions which he could neither foresee nor obviate. This was 
 the rule of interpretation, when licenses were even matters of special 
 indulgence. 
 
 But it has happened that, in consequence of the extraordinary and 
 unprecedented course of public events, these licenses have, in a cer- 
 tain degree, changed their character, and are no longer to be consi- 
 dered exactly in the same light. It is notorious that the enemy has 
 in this war directed his attacks more immediately against the com- 
 merce of this country than in former wars ; and a circumstance of 
 still greater weight is, that he has possessed himself of all those 
 places that in former wars remained in a state of neutrality. To 
 what part of the continent can we now look for a country which is 
 not either under the actual dominion of France, or in th&t state of 
 subjection to it which operates with all the effect of dominion ? It 
 is a state of things in which it has become impossible for England 
 to carry on its foreign commerce, without placing it on a very differ- 
 ent footing from what its convenience required in former wars. To 
 say you shall have no trade with the enemy, would be, in effect, to 
 say that you shall not trade at all ; because that commerce which is 
 essential to the prosperity of the country cannot be carried on in 
 those small and obscure nooks and corners of Europe, if any such 
 can be found, which are still independent. The question, then, comes 
 to this, how is the foreign commerce of the country to be main- 
 tained ? It must be either by relaxing the ancient principle entirely, 
 and permitting an unlimited intercourse with the ports of 
 [ * 331 ] the enemy, and when the ports of other nations are ' put 
 under blockade (as they are by the orders in council) for 
 other reasons than those of a direct hostile character, they become 
 liable to be considered and treated in like manner, so far as the pur- 
 poses of blockade require ; or it must be by giving a greater exten- 
 sion to the grant of licenses. As to the relaxation of the general 
 principle, by which an open and general intercourse with the enemy 
 would be allowed, the consent of both parties is requisite to make 
 that effectual ; and even if the enemy permitted it, the legislature 
 would probably not think proper to proceed to that length, and for 
 reasons, I presume, connected with the public safety. It has, there- 
 fore, tolerated a resort to the other mode, of permitting a trade by 
 licenses ; which, though they are so denominated, are likewise, in 
 effect, expedients adopted by this country to support its trade, in 
 defiance of all those obstacles which are interposed by the enemy. 
 
HIGH COURT OF ADMIRALTY. 332 
 
 The Goede Hoop. Edw. 
 
 They are not mere matters of special and rare indulgence, but are 
 granted with great liberality to all merchants of good character, and 
 are expressed in very general terms, requiring, therefore, an enlarged 
 and liberal interpretation. At the same time, they are not free from 
 control. Restrictions, dictated by prudent caution, are annexed ; 
 and, where they are so annexedg|hose restrictions must be supposed 
 to have an operative meaning. It is not, therefore, in the power of 
 this court to apply such an interpretation to a license as would be in 
 direct contradiction to its express terms, or to say that effect should 
 be given to one part and not to another. If the permission is for a 
 ship to go in ballast, it would be impossible for the court to say that 
 it shall go with a cargo ; for that would not be an interpretation, but 
 a contravention, of the license. But where it is evident 
 that the parties have acted with * perfect good faith, and [ * 332 ] 
 with an anxious wish to conform to the terms of the license, 
 I presume that I am only carrying into effect the intention of the 
 grantor, when I have recourse to the utrrlost liberality of construction 
 which it is in the power of this court to apply. As a general rule, 
 therefore, it is to be understood that, where no fraud has been com- 
 mitted, where no fraud has been meditated, as far as appears, and 
 where the parties have been prevented from carrying the license into 
 literal execution by a power which they could not control, they shall 
 be entitled to the benefit of its protection, although the terms may 
 not have been literally and strictly fulfilled. If I assume too much 
 in laying down this rule, it must be rectified in the Superior Court. 
 But looking to the intentions of the government, not only to what 
 they are, but to what I am led to suppose they must be ; looking ,to 
 the extreme difficulty of carrying on the commerce of the country 
 in the struggle which it has to maintain, not only against the power 
 but against the craft of the enemy ; looking to the frequency and the 
 suddenness with which he lays on or takes off his embargoes, accord- 
 ing to the exigency of the moment ; looking to the various obstruc- 
 tions that present themselves in obtaining vessels, in consequence of 
 the small remainder that there is of neutral navigation in Europe ; 
 looking, also, to this circumstance, that all- this intercourse must be 
 carried on by the subjects of the enemy, that it must be a confiden- 
 tial transaction^to be conducted by an enemy shipper at great risk 
 and hazard to himself; looking to the total change which has taken 
 place in the nature and character of these licenses, if that denomina- 
 tion is to be continued ; I say, looking to all these considerations, 
 where there is clearly an absence of all fraud and of all 
 discoverable * inducement to fraud, I must go to the utmost [ * 333 ] 
 length of protection that fair judicial discretion willwar- 
 
 EDW. 20 
 
334 CASES DETERMINED IN THE 
 
 The Goede Hoop. Edw. 
 
 rant, though there may, under such circumstances, have been a con- 
 siderable failure in the literal execution of the terms of the license. 
 There may be great inconvenience in the whole system of licenses, 
 as indeed it is scarce possible,«an the present state of the world, that 
 there should not be great practical inconvenience in any mode of con- 
 ducting its commerce. That is a question of policy, with which this 
 court has npthing to do. It has only to enforce the just execution 
 of legitimate orders, issued by competent authority. 
 
 Having laid it down, therefore, as a general principle, that where 
 there is clear bona fides in the holder, this court, though it certainly 
 will not contravene the terms of a license, will give it the most 
 liberal construction, I come now to apply that rule to .the case 
 before me. The principal ground of objection is, the delay which 
 took place in the sailing of the vessel; but I must observe, that 
 having called on the counsel for the captors to point out what par- 
 ticular fraud could have been intended by this procrastination, I have 
 only been answered by a sort of general suggestion, that such an 
 extension of the period allow.ed might afford an opportunity of bring- 
 ing the license into use a second time. But that any such use was 
 made, or intended to be made, of the license, in the present instance, 
 has not been suggested, and, therefore, it is to be taken as a case 
 clear of that act or intention of fraud. It is objected to the master, 
 that he did not produce his license to the captors, and that, on his 
 arrival at Plymouth, he delivered certain papers and, documents to 
 his agents there. But it is impossible not to take into consideration 
 
 the difficulties under which such persons labor; they are 
 [ * 334 ] persons * exposed to great harassments both on the one side 
 
 and on the other. They know that they are embarked in 
 transactions of great confidence and mystery, requiring the utmost 
 care and circumspection, and they are to pick their way, in fear and 
 silence, walking, as it were, at every step, over burning ploughshares. 
 That, under such circumstances, there should have been something 
 of reserve in the conduct of this neutral master, is not very much 
 matter of surprise, or of serious judicial animadversion. As far as 
 can be collected from the contents of the papers, no fraud seems to - 
 have been meditated in keeping them back ; and I dwell the less upon 
 this objection, because it is one which the captors have no right to 
 take in this case,, as it appears that they have not done their duty in 
 bringing in the papers in a regular manner. It is the known duty of 
 the prize-master to take possession of the ship's papers, and, upon 
 his arrival, to make an affidavit and bring them in ; but here they 
 were left in the custody of the master of the ship. When the ship 
 comes into port, does the prize-master demand them? — no, that was 
 
HIGH COURT OF ADMIRALTY. 335 
 
 The Goede Hoop. Edw. 
 
 not done; they are brought in some days afterwards by a person of 
 the name of Smith; who describes himself as the agent of the agents 
 of the captors. If, therefore, any papers were kept back, it is a fault 
 of which the captors have no right to complain ; there is an end of 
 any objection that can proceed from that quarter, as to an unfairness 
 in the production of the papers. But these papers are such as the 
 master could not have any interest in withdrawing ; and, therefore, 
 there is not much in the substance of the objection. The account 
 given by the master is, " that the vessel sailed from Marennes, in 
 France, in the month of March last, where she was chartered to pro- 
 ceed in ballast to Rochelle, there to take on board her present 
 cargo; that *the said ship sailed from Marennes, aforesaid, [*335] 
 on the 28th of March last, and arrived at Rochelle on the 
 1st of April following ; and in the same month began to take on 
 board her present lading, and completed the same on the 13th of May 
 following. That the said ship sailed from Rochelle aforesaid, being 
 her last clearing port, previous to the capture, on the 29th June last, 
 having been detained from sailing, after her cargo was on board, by 
 means of an embargo by the French government, and for some days 
 by contrary winds." It is said that this was a very long time, and so 
 it is ; and it is a long time which the court is under the necessity of 
 allowing, on account of the immense difficulties which are to be 
 overcome. You cannot generally send ships from England, and they 
 must therefore be procured as they may in ports of the enemy. This 
 ship was chartered in an enemy's port, and as there must have been 
 a good deal of previous correspondence, it is not surprising that a 
 considerable time elapsed before the business was concluded. The 
 ship sailed from Rochelle on the 21st June, and was taken on the 
 same day. Now the whole labor of the argument has been employed 
 to show, that some fraud or other must be presumed, from the length 
 of time which elapsed after the expiration of the license. But what 
 is the natural presumption in this case? why, that the party would 
 not countenance an unnecessary delay, which must be contrary to 
 his own direct interest. This furnishes a very strong ground to sup- 
 pose that it w^as by accident that the ship was prevented from com- 
 pleting her voyage within the time expressed in the license. If it 
 could be shown that the license had been used before, and that the 
 delay in the present instance arose from its previous use, or 
 that there was any other fraudulent * purpose to be answered, [ * 336 ] 
 most certainly I should then call for more particular explana- 
 tions; but as no fraudulent motive has been pointed out, I must 
 suppose that the party was not dilatory in furthering the completion 
 of his own mercantile adventure. The only thing suggested is the 
 
337 CASES DETERMINED IN THE 
 
 The Catharina Maria. Edw. 
 
 fact that the time limited by the license had expired. That has been 
 accounted for by the intervention of an alleged embargo. Shall I, 
 under these circumstances, order the fact of the embargo to be 
 established by further proof, when it is so probable in itself, and load 
 this table with French decrees and ordinances, which would, after 
 long delay, in all probability, lead to the same conclusion at last ? 
 Looking to the local circumstances of the country in which the 
 transaction originated, and to the conduct of the French government 
 at that particular period, I think it my duty to stand upon the pre- 
 sumption that the embargo did exist, and to hold the parties entitled 
 to restitution, paying the captors their expenses, which I cannot 
 refuse, where the parties are acting in apparent contravention of the 
 literal terms of their license. In such cases his Majesty's officers 
 have a right to be satisfied, and they are entitled, in justice, to be pro- 
 tected in their expenses. It is an inconvenience not arising from 
 capture, but from the present state of affairs, and from which the 
 court cannot relieve the claimants, however it may regret that they 
 should be subjected to it. The license, I observe, is only 'to bring a 
 cargo of brandy, and as there are other goods on board, those goods 
 must be condemned, as the permission is limited to the brandy. 
 
 [ * 337 ] * Cathaeina Maria, Brathering. 
 
 License to proceed in ballast to a port of the enemy, for thff purpose of bringing a cargo 
 from thence to this country, will not protect the vessel carrying a cargo to the port of the 
 enemy. 
 
 This was the case of a vessel under Mecklenburgh colors, which 
 was captured on a voyage from Eostock to Liebau, with a cargo of 
 wine and brandy. 
 
 Judgment. 
 Sir W. Scott. I can have no doubt that this vessel is liable to 
 condemnation, under the order in council which prohibits all trade 
 between ports from which the British flag is eXcluddd. Protection is 
 indeed contended for by virtue of a license found on board at the 
 time of capture, permitting a vessel, bearing any flag except the 
 French, to sail in ballast to any port in the Baltic or the White Sea, 
 
 1 January 7, 1807. 
 
• HIGH COURT OF ADMIRALTY. 338 
 
 The Catharina Maria. Edvv. 
 
 for the purpose of bringing a cargo from thence to this country. But 
 that will certainly not enable the vessel to carry a cargo to the port 
 of the enemy. The ulterior branch of the voyage, the voyage to this 
 country, is that alone wherein the vessel is permitted to carry a cargo 
 by the terms of this license, and having been captured with a cargo 
 on board during her voyage to the Russian port, it cannot be said 
 that she is to derive protection from it. There would be an end of 
 the orders in council, by which the trading between the ports of the 
 enemy is prohibited, if their effect could be taken off by proceeding to 
 such ports with cargoes, with the ostensible purpose of an ulterior 
 voyage to this country. It has therefore been made a general condi- 
 tion of these licenses, that a vessel on her voyage to the enemy's port 
 shall go in ballast, unless she is proceeding from some open port. 
 And although it has been argued, that the first branch of the voyage 
 is of subordinate consideration, I cannot take upon myself 
 to overlook *this consideration, and to say, that a license [*338 ] 
 permitting a vessel to proceed to an enemy's port in ballast, 
 shall extend to the protection of a vessel proceeding thither with a 
 cargo. If, as it has been observed, the object of obtaining naval 
 stores from Russia is of such high importance to this country as to 
 overcome every other consideration, the terms of these licenses may, 
 upon proper representation, be altered by his Majesty's government; 
 but it is not within the competence of this court to make such altera- 
 tions, or to relieve the claimants by giving to the terms of a license 
 an interpretation evidently not within its meaning. 
 
 Then again it has been urged, that the French authorities at Ros- 
 tock compelled the master to take this cargo on board. I must ob- 
 serve, in the first place, that this suggestion comes out in a manner 
 not much calculated to inspire implicit confidence in the mind of the 
 court; but were it otherwise, such an excuse can never be admitted.^ 
 What is to become of these orders in council, if the enemy, by the 
 mere introduction of a force which the'master of a merchant vessel 
 cannot resist, is to defeat their operation ? force would in all bases be 
 employed, and in many cases collusively. In every instance in which 
 the necessities of this country might require the introduction of 
 Russian produce into the ports of England, the enemy would derive 
 a concurrent advantage by the transfer and circulation of his own 
 commodities. I am under the necessity of considering the vessel, 
 therefore, as captured on a voyage which, by no latitude of interpre- 
 tation, can be brought within the terms of the license by which alone 
 
 1 [The Seyerstadt, 1 Dod. 241.] 
 20* 
 
339 CASES DETERMINED IN THE ■ 
 t 
 
 The Carl. Edw. * 
 
 it could be protected ; and the plea, that the cargo was taken on board 
 by compulsion, being in its own nature inadmissible, the cargo can- 
 not be exempted from the fate of the ship. 
 
 [*339] * Gael, Berlin. 
 
 January 29, 1810. 
 
 Vessel proceeding to the port of shipment in ballast, the license having expired, but with an 
 indorsement, setting forth that a new license had been obtained, and would be applied to 
 this vessel on her arrival at the port of shipment. Kestitution. 
 
 This was the case of a vessel in ballast, which was captured on a 
 voyage from Louisa to Cronstadt. A claim was given by a British 
 house of trade, setting forth, that in the month of August, 1808, and 
 also in the months of February and May, 1809, they had procured 
 licenses to protect various ships engaged in importing cargoes from 
 Russia to this country ; that the licenses were forwarded, soon after 
 they were procured, to their agent at Petersburgh ; but that, owing to 
 the difficulty of procuring vessels in the Russian ports, some of the 
 licenses obtained in August, 1808, remained at the end of the season 
 in the hands of their agent, and, among others, the license on board 
 this vessel ; that in May or June, 1809, they were informed by their 
 agent, that he had engaged the ship Carl, then in the port of Louisa, 
 to proceed from thence in ballast to Cronstadt, to take on board a 
 cargo which he had purchased for their house, for the purpose of pro- 
 ceeding with it to a British port ; that they were subsequently in- 
 formed by their agent, that not having then received any of the 
 licenses procured by them in February and May, 1809, he had, in 
 order to save the season, sent to Louisa one of the licenses procured 
 in August, 1808, with a view to protect the ship from capture on Jier 
 way from Louisa to Cronstadt. The claim further set forth, that it 
 was the fixed intention of the British merchants, and also of their 
 agent, that one of the licenses procured in February and May, 1809, 
 
 (copies of which were annexed to the claim,) and which 
 [ * 340 ] had actually * been forwarded previous to the capture, 
 
 should be used to protect the ship Carl on her voyage from 
 Cronstadt to England ; but which of the licenses would have been 
 so appropriated they could not set forth, as it must have depended on 
 the time of their coming to hand. 
 
HIGH COURT OF ADMIRALTY. 341 
 
 The Carl. Edw. 
 
 Judgment. 
 
 Sir W. Scott. In any view of the case there can' be no doubt 
 that the captors were fully justified in detaining this vessel, as the 
 license found on board had expired several months before this transac- 
 tion took place. The license permits a vessel under any flag, except 
 the French, to bring a cargo to this country from any port in the 
 Baltic ; and there is an indorsement on the -back of it in these words ; 
 " The annexed license came to the hands of the undersigned, a 
 British subject, now in this country, upon commercial business, too 
 late in the season to make the intended use of it ; but having bought 
 the Louisa-built ship Carl, which I have ordered here to take in a 
 cargo of Russian produce for England, I have provided her with the 
 documents for a free passage in ballast from Louisa to Cronstadt, 
 not doubting to provide her with a new license for England, having 
 advice of such documents taken out and obtained by my friends. I 
 trust, therefore, under these circumstances, a free passage, and even 
 protection, will be given by all British or allied cruisers to the said 
 ship." Dated St. Petersburgh, 10 (22) May, 1809. Such a state- 
 ment the captors were justified in disregarding ; for certainly, this 
 court, in considering the application and use of these licenses, has 
 never laid it down that time is an ingredient of no con- 
 sequence. [ * 341 ] 
 
 * And here I cannot help expressing my surprise, that the 
 licenses taken out for this particular trade are limited to the period 
 of six months, as well on account of the length of the voyage, as the 
 known fact that the ports of Russia are very ill supplied with ship- 
 ping ; a difHculty which is frequently to be removed by obtaining 
 vessels from other ports in the Baltic. These considerations do, in 
 my apprehension, form a ground for this court to exercise an equita- 
 ble discretion in distinguishing this class of cases from some others 
 which have been alluded to in the argument. For this court will 
 consider it a part of its duty to attend to the local circumstances and 
 situations of the different countries in which these licenses are to be 
 carried into effect. Where there is evidently no fraud in the transac- 
 tion, the court will, in considering this class of cases, hold this rule 
 less strictly than it would do relatively to transactions taking place 
 in countries where the opportunities of carrying adventures into 
 effect are more obvious. Now, in the present case, I ask, whether 
 there is any thing like an indication of a fraudulent intention ? It is 
 surely one symptom of fairness, that the agent shipper puts on board 
 this acknowledgment of the infirmity of the license, and refers to one 
 subsequently to be obtained in England for protection. I certainly 
 see something of negligence in the house here, in not making imme- 
 
342 CASES DETERMINED IN THE 
 
 The Europa. Edw. 
 
 diate application at the council office for a license expressly for this 
 particular ship, the moment it was known to them that she was to 
 be sent to Cronstadt with this expired license on board. 
 
 But looking to the importance of this commerce, and the difficulty 
 of maintaining it under the deficient supply of navigation in the 
 
 ports of Russia, if I were to fasten down upon the parties 
 [ * 342 ] penal consequences *for every trifling irregularity, it would 
 
 be to put this important branch of the commerce of the coun- 
 try into a state of thraldom that must amount to an utter extinction 
 of it. Under these considerationis, I think I am not stepping beyond 
 the equitable discretion which this court is bound to exercise, in say- 
 ing, that these licenses convey a virtual protection to this vessel ; and I 
 shall therefore restore, on payment of the captor's expenses. 
 
 Europa, Schmidt. 
 
 Eebruary 20, 1810. 
 
 License to proceed to this country — deyiationto the river Yadhe — condemnation. 
 
 This was the case of a vessel under Bremen colors, which was 
 captured in the river Yadhe, on a voyage from Archangel, with an 
 asserted destination to Leith, for orders. In his answer to the seventh 
 interrogatory, the master stated that he had been under the necessity 
 of putting into the Yadhe, in consequence of the ship having struck 
 upon a sand, and lost an anchor and cable ; and that the voyage was 
 to have ended at some port in England, which he was to be informed 
 of at Leith, where he was to have called for orders respecting the 
 port he was to proceed to for the purpose of delivering his cargo. ' 
 
 Judgment. 
 
 Sir William Scott. This ship, which had sailed from a Russian 
 
 port, with a professed destination to London, was captured in the 
 
 river Yadhe. The excuse set up is, that the vessel had sustained 
 
 damage, and was in want of repair; but this certainly is an excuse 
 
 which, if it were to rest only on the averment of the mas- 
 
 [ * 343 ] ter, could not safely be relied on. Supposing * it to be true 
 
 that the original destination to this country has been altered 
 
 in consequence of a vis major, it is impossible to consider the fact as 
 
 sufficiently established by the mere averment of the persons on board. 
 
HIGH COURT OF ADMIRALTY. 344 
 
 The Speculation. Edw. 
 
 For although the demand of further evidence may press hard in par- 
 ticular instances, the situation in which this court would be placed 
 in receiving such excuses in other cases, from the very persons who, 
 if there be any fraud in the case, are the parties to that fraud, renders 
 the precaution indispensable. The master of this vessel says, that 
 on his arrival at Leith he was to write to a respectable merchant in 
 this town for further orders ; and if this statement is correct, that 
 gentleman is probably in possession of correspondence which will 
 afford the claimant an opportunity of proving his case by evidence 
 not coming solely from the master himself. The master says, that 
 " be intended to look for convoy off the coast of Norway, and not 
 succeeding, edged off for Heligoland ; but before reaching that place 
 a gale of wind came on, which forced the vessel towards the Yadhe, 
 and being thick weather, she struck upon a sand, and afterwards 
 came to an anchor, but her cable parting, she steered for the Yadhe, 
 in order to go to Eckwarden to repair the damage she had sustained, 
 and to get an anchor and cable. All the witnesses state that there 
 had been a gale of wind ; but I have to regret that there is no infor- 
 mation before the court respecting the actual state of the vessel, and 
 I shall, therefore, allow further proof of the destination to this coun- 
 try, from such evidence as the British merchant, vouched by the mas- 
 ter, may be able to supply ; and also a commission of inspection to 
 ascertain the condition of the ship. 
 
 Ultimately condemned, upon failure of evidence of a destination 
 to this country. 
 
 * Speculation, Eberhard. [ * 344 ] 
 
 Febraary 16, 1810. 
 
 License on board, but not intended to be applied to this vessel — no ulterior destination to 
 this country — intention to sell the ship in the enemy's port — condemnation. 
 
 Judgment. 
 Sir William Scott. This ship, under Lubec colors, was cap- 
 tured on a voyage from Copenhagen to Riga, in ballast, with a 
 license on board, which does not appear to refer in any manner, to 
 this vessel, as it is not indorsed, and the name of the ship is not to 
 be found in the body of the license. The court is extremely unwil- 
 ling to be rigorous in respect to the application of licenses to the 
 
 # 
 
345 CASES DETERMINED IN THE 
 
 The Speculation. Edw. 
 
 vessejs which they are intended to protect. But they must, in some 
 specific manner, be so applied ; and I cannot take the mere averment 
 of the fact by the British claimant to be sufficient. In this case a 
 license was found on board at the time of capture, and prima facie .it 
 might be taken as intended to be applied to this vessel ; but the fact 
 may be otherwise. For instance, the license may be going for the 
 protection of some other vessel, to which it is to be applied, and it 
 would be impossible to say, that the mere circumstance of its being 
 on board the vessel that conveys it shall be sufficient for her pro- 
 tection also. 
 
 There is nothing in the present case to show that this license was 
 intended by any of the parties to be applied to this vessel. All that 
 appears is, that the owner of the ship, at Hamburg, is sending this 
 license to his correspondent at Riga, telling him that he would send 
 instructions for its application ; and directing him to let his ship on 
 freight, or in failure of that, to put her up to sale. His words are 
 these : " I hereby take the liberty of enclosing you a license at your 
 disposal, having to-day an opportunity for sending you the present. 
 I hope it will soon reach you, and I will write further to you on this 
 subject by post." And in another letter on board, addressed 
 [ * 345 ] to the same person, he says, " The * bearer hereof is Captain 
 Eberhard, commanding the ship Speculation ; have the good- 
 ness to procure him as good a freight as possible, in order that this under- 
 taking may render me a good profit. If I could get 9,500 or 10,000 
 R. D. Hamburg banco nett for the ship, I should be inclined to sell 
 her again, for which purpose I hereby empower you to do so." Here, 
 then, are very slender grounds whereon to infer that this license 
 would have been applied to this vessel by the correspondent of the 
 owner at Riga. But if we had got that length, would that be suffi- 
 cient? I am opinion that it would not. Licenses are granted by 
 the government of this country, on a prospect of reciprocal advantage 
 to the government which grants it, and the foreigner who receives it. 
 The permission of going from one port of the enemy to another, 
 requires that the vessel shall be going thither for the purposes of Bri- 
 tish trade. Now, it cannot be argued that such was the intention of 
 the parties in the present case, because no such voyage was in con- 
 templation ; for, on failure of obtaining a freight, there was the alter- 
 native purpose of selling the ship at Riga. There must, in all these 
 cases, be an intention conformable to the objects for which the license 
 has been granted. Parties are not to take advantage of the perrhis- 
 sion to proceed to the port of the enemy, without an engagement 
 that the vessel is proceeding thither for the purposes of a trade imme- 
 diately connected with this country; for surely licenses cannot be 
 
HIGH COUET OF ADMIRALTY. 346 
 
 La Cousine Marianhe. Edw. 
 
 presumed to be granted for the purposes of carrying on the enemy's 
 trade, without any ulterior view to British use and advantage. Here, 
 therefore, is a total failure not only in the application of the license 
 to this particular vessel, but also in its effect, supposing it had 
 been so applied to a vessel * proceeding to the port of the ene- [ * 346 ] 
 my for sale. Then comes the question, whether, throwing the 
 license out of the case, this vessel would be subject to condemna- 
 tion; and it is argued, that being a prize vessel, purchased by a neu- 
 tral of the enemy, she is entitled to all the privileges of a neutral ves- 
 sel, and at liberty to proceed in ballast from one enemy's^ port to an- 
 other. If that were the only- circumstance in the case, it might be so ; 
 but it is to be remembered that this vessel was purchased by the 
 neutral in a blockaded port, where a traffic cannot be allowed in 
 ships more than in goods, and consequently the transfer is illegal. 
 In the next place, if this vessel was proceeding to Riga to be sold, I 
 am of opinion that this would be in itself a trading in contravention 
 of the order 7th January, and therefore the ship would be liable to 
 confiscation. 
 
 Cousine Marianne, Deboer. 
 
 March 13, 1810. 
 
 The words, " to whomsoever the property may appear to belong," not being inserted in the 
 license, enemy's property not protected under it. 
 
 This was the case of a vessel under Prussian colors, which was 
 captured on a voyage from Bordeaux to London, and claimed as pro- 
 tected, under a license permitting Messrs. Wombwell & Co., and 
 other British merchants, to import a cargo of enumerated goods into 
 Plymouth, for the payment of duties, and then to proceed on to a 
 port in the Baltic. The words, " to whomsoever the property may 
 appear to belong," not being inserted in this license, the question was, 
 whether certain parts of the cargo, which belonged to French mer- 
 chants, were protected under it. 
 
 Judgment. 
 Sir W. Scott. The question in this case is, whether the pro- 
 perty of these goods vested in the British consignee at the 
 *time of the capture ; for this court has never yet restored [ *347 ] 
 the property of the enemy, except in those instances where 
 
348 CASES DETERMINED IN THE • 
 
 La Cousine Marianne. Edw. 
 
 the words, " to whomsoever the property may appear to belong," are 
 introduced into the license. Where those words occur, they have 
 been held to exclude all inquiry into the proprietary interest ; but they 
 are not to be found in the license on board this vessel, and the court, 
 therefore, is not at liberty to depart from the general rule. 
 
 It is a settled principle in this court that, in order to constitute an 
 effectual transfer of the property, there must be either an order for 
 the goods, or an acceptance of them by the consignee, prior to the 
 capture. If the capture takes place, where no order has been given, 
 and before the goods have been accepted, they must be considered as 
 the property of the persons who have so consigned them. In this 
 case, therefore, the court has called for evidence, to show whether 
 any order had been given by the British merchants, or any act done 
 by them in the nature of an acceptance, before the capture. It is 
 not pretended by the claimants that any specific order was given for 
 these goods ; but an affidavit is now introduced, purporting that the 
 manufacturers at Valenciennes knew the quality of the goods wanted 
 by the house here, and that it was understood they were to make 
 their shipments without waiting for orders. I certainly cannot con- 
 ceive that any such understanding could impose upon the parties 
 here an obligation to accept goods to any quantity, as well as of the 
 specific quality ; but what malfes this account the more unsatisfac- 
 tory is, that the shipment is not made by the manufacturers at 
 Valenciennes, but by a house at Paris. And how are the parties 
 here to be bound by their act ? The course of trade, re- 
 [ * 348 ] ferred to in this affidavit, does not apply to the house * at 
 Paris, but to the manufacturers at Valenciennes. If, how- 
 ever, the shipment had been made by the manufacturers themselves, 
 the question would still remain for the consideration of the court, 
 whether a general order to ship goods of a certain quality would 
 impose upon the parties a legal obligation to accept goods of that 
 description to any quantity. In order to show that the parties here 
 have a vested interest in the property, it must be shown that they 
 were under a legal obligation to accept these goods on their arrival. 
 Now I have no idea that these shippers, putting their character as 
 alien enemies out of the question, could have compelled the British 
 merchants to a specific payment for these goods. There might exist 
 an expectation, on their part,. that they would be accepted and paid 
 for • but there was no legal obligation on the British merchants, and, 
 therefore, unless it had been shown that there was some act done 
 by them, in the nature of an acceptance of the goods, prior to the 
 capture, I cannot but be of opinion that the legal property still 
 remains in the enemy, and, consequently, that this portion of the 
 
HIGH COUET OF ADMIRALTY. 349 
 
 The Vrow Cornelia. Edw. 
 
 cargo must be condemned, as not being protected under the words of 
 this license. 
 
 * Vrow Cornelia, Dykstra. [ * 349 ] 
 
 March 14, 1810. 
 
 License to bring a cargo in one vessel, sufficient to protect the same cargo' shipped on board 
 two vessels, one of them having only an attested copy on board, and having taken in her 
 portion of the cargo in another port. 
 
 This was a question on the effect of an attested copy of the ori- 
 ginal license, under which the brandies on board this vessel were to 
 have been imported into Hull, from Charente, the vessel having 
 sailed from Bordeaux. There was a further question, whether the 
 license being for a cargo of brandy, and the original having been 
 used for 289 puncheons, which were shortly after forwarded from 
 Charente to Hull, in The Johannes Von Letten, this copy of the 
 license could enure to the protection of the goods on board this ship, 
 being the other part of the original cargo intended to have been 
 brought in one vessel from Charente, when the license was obtained. 
 The claimants showed that the cargo was purchased on their ac- 
 count, and ready to be shipped when the license was applied for; but 
 that they were unable to make the shipment at Charente, as the 
 foreign vessels in that port were under sequestration, and The Goede 
 Verwagting, which was chartered for that purpose, had been pre- 
 vented by the French decrees from going thither. That, under these? 
 circumstances, they sent on this portion of the cargo overland to Bor- 
 deaux, where it was shipped in The Vrow Cornelia, and the seques- 
 tration being in a few days after taken off from the Johannes Von 
 Letten, then at Charente, they availed themselves of the opportunity 
 to ship the remainder direct from that port. 
 
 * Judgment. . [ * 350 ] 
 
 Sir W. Scott. In the use and application of licenses, 
 the court will not limit the parties to a literal construction. It is 
 sufficient that they show, under the difficulties of commerce, that 
 they come as near as they can to the terms of the license; and 
 where that is done, the court will not prevent them from having the 
 entire benefit intended by his Majesty's government. If I did not 
 adopt this rule, I should inflict a severe wound upon British com- 
 
 EDW. 21 
 
351 CASES DETERMINED IN THE 
 
 The Vrow Cornelia. Edw. 
 
 merce, than which nothing can be farther from my inclination ; and 
 if the cruisers expect a more rigid construction of licenses from me, 
 they will find themselves disappointed. Wherever I am satisfied 
 that there is no bad faith in the parties, and no undue extension of 
 the terms of a license beyond the meaning of the council board, any 
 little informalities or any trifling deviations shall not injure them. 
 
 It appears that, in the present instance, the license was granted to 
 import these brandies into this country from Charente ; but, for the 
 reasons stated in the affidavits, it is shown that there was an impos- 
 sibility of bringing out the cargo from that port, and consequently 
 this portion of it was very warrantably forwarded from Bordeaux, to 
 be exported from thence ; for it is known that, in the present state of 
 France, a merchant is often unable to tell from what port he can ship 
 his cargo. 
 
 It was put upon the parties to prove, that the goods ordered from 
 
 Charente are the same goods that were put on board this vessel at 
 
 Bordeaux ; and it is said that there is reason to suspect that this is 
 
 not the case, as the charge of warehouse rent is not in the 
 
 [ * 351 ] invoices. I should have been * startled if it had. It is not 
 usual to introduce such a charge there ; and I do not see 
 what motive there could be to attempt an imposition on the court in 
 this part of the case. The only question, therefore, to which it is 
 necessary for me to direct my attention is, whether there has been 
 any fraud upon the government in the application of the license, or 
 in the use of it. 
 
 Mr. Corlass and his partner, in Yorkshire, are great dealers, and 
 there are other dealers concerned in this transaction, but not to the 
 same extent. These, through Corlass, order a particular quantity 
 of brandy, and he says he has usually half the quantity in the ship ; 
 and this assertion I have no reason to question. They make appfi- 
 cation for a license for this conjoined cargo, of which Corlass has the 
 superintendence, he having what is equal to all the rest; and the 
 formal business is done through Hodgson, whom I suppose to be a 
 broker. Application is thus made to the council board, and they 
 obtained a license for the cargo, to be imported into this country in 
 The Goede Verwagting, or any neutral vessel. What is the fair 
 construction of this license ? Certainly, that they might import a 
 cargo sufficient in bulk to stow The Goede Verwagting full, or any 
 other neutral merchant ship. If they, under cover of this license, had 
 imported in two vessels what no one mercantile vessel in the port of 
 Charente could hold, it might be considered as a fraud ; but the 
 whole quantity, it has been shown, is not beyond the capacity of 
 vessels frequently sailing from that port. Upon the faith of this 
 
HIGH COURT OF ADMIRALTY. 352 
 
 The Vrow Cornelia. Bdw. 
 
 license, thus obtained, orders were given by Corlass to his agents in 
 
 France for a particular quantity of brandies, for others and 
 
 for himself, sufficient * to fill up the measure of the vessel, [ * 352 ] 
 
 and under such license he had a right to have what would 
 
 fill up anj» such vessel as The Goede Verwagting. 
 
 It appears that The Goede Verwagting, under the present difficul- 
 ties oT commerce, could not get admission at Charente, in conse- 
 quence of which delay the license expired. In this distress the par- 
 ties apply for a new license, to import the brandies in another ship ; 
 not for a ship of any particular dimensions, for they must be content 
 with what they could get, and they send a ship which, having only a 
 copy of the license, could not proceed to the place of destination. 
 It then became necessary to adopt other means ; and what do 
 they do ? They take The Johannes Von Letten, and in that they 
 put a cargo consisting of a portion of these goods, under the protec- 
 tion of the license itself, and they provide a certificate that The Vrow 
 Cornelia put to sea from Bordeaux, having on board a copy of this 
 license, with 300 puncheons, another portion of the intended cargo, 
 and so forth. Thus documented, these vessels openly avow that 
 two are to be sent ; and thus the parties establish their good faith 
 and integrity, by the most ingenuous disclosure of the whole trans- 
 action. 
 
 The application to the council board was for permission to bring a 
 cargo, and if a proper ship could not be got, which is- a matter likely 
 to occur under the present difficulties of commerce, it is fit that they 
 should be at liberty to put that cargo on board two ships ; to say 
 that this is a fraudulent use of a license, is not correct. The quan- 
 tity the government looked to ; that is the matter to be considered ; 
 and if the quantity in two ships be only equal to what 
 might * have come, and was intended to have come in one, [ * 353 ] 
 where is the fraud ? If you do not prove that the quantity 
 has exceeded the intention of the grantor, you prove nothing. Under 
 these circumstances, I think the parties are perfectly entitled to the 
 restitution of the property, and I do not see any objection to the pro- 
 priety of their conduct. 
 
354 CASES DETERMINED IN THE 
 
 The Johan Pieter. Edw. 
 
 [*354] *JoHAN Pieter, Schwartz. 
 
 March 30, 1810. 
 
 License expu-ed in consequence of embargo in enemy's port — on proof of the identity of 
 the transaction, held to be a subsisting license, after government had ceased to grant such. 
 
 This ship was captured on a voyage from Charente to New Castle, 
 with a cargo of brandies, having sailed from Charente on the 23d 
 February, 1810. Claims were given in by British merchants for the 
 ship and cargo, as protected by a license on board the vessel, bearing 
 date 27th April, 1808. In the claim for the cargo it was stated that 
 the ship had been chartered by the British claimants, and sent out in 
 April, 1808, for the purpose of bringing away a cargo of brandy on 
 their account from Charente, where she arrived in the month of June 
 following, but was immediately placed under an embargo, by which 
 she was detained till February, 1810, and the cargo which had been 
 ordered by them, and was at the time of her arrival ready to be put 
 on board, was continued in warehouses until February, 1810, when it 
 was permitted to be laden. 
 
 On behalf of the captors it was contended, that the license having 
 expired, it could not be held to protect the voyage, unless it could be 
 shown that this was the identical transaction in contemplation when 
 the license was obtained, and that its progress had been interrupted 
 by obstacles not within the control of the parties themselves — that 
 the goods were not even put on board till a very long period after the 
 expiration of the license, and in , that respect the case differed from 
 those which had hitherto presented themselves to the notice of the 
 court. 
 
 [*355] "Judgment. 
 
 Sir W. Scott. The leading principle which the court 
 has laid' down for himself, in considering these cases of licenses, is 
 this, that where there appears to have been no fraud, either actual or 
 meditated, the court will strain every nerve to relieve the parties from 
 those difficulties to which they are subjected by. the caprice and vio- 
 lence of the enemy, and the unprecedented state of all commercial 
 transactions. In doing this it is content to take the question upon 
 the evidence arising from the case itself, without calling upon the 
 parties to disclose the whole course of their commercial correspon- 
 
HIGH COURT OF ADMIRALTY. 356 
 
 The Johan Pieter. Edw. 
 
 dence with the enemy. Where the court is satisfied of the identity 
 of the transaction, and that all fair diligence has been used in order 
 to its completion within the time prescribed, it will look no further. 
 It will not call upon the parties for the production of unnecessary and 
 oppressive proof. If the embargo is shown to have existed, it will 
 not call upon them to explain from what motives the government of 
 France has from time to time varied its policy with regard to the 
 small portion of foreign commerce that it retains. 
 
 In the present case, I think there is as much evidence to found 
 a presumption of fairness, as the court is in the habit of requiring in 
 ordinary cases. It is unnecessary for me to go through all the 
 evidence from which I draw this conclusion ; and I shall content my- 
 self with expressing my perfect conviction that these are the identical 
 goods intended to be brought to this country at the time when the 
 license was obtained, and that the integrity of the transaction cannot 
 be impeached. 
 
 I have only, therefore, to determine, whether it is in the 
 power of the court to consider this as a subsisting * license, [ * 356 ] 
 after his Majesty's government has ceased to grant licenses 
 of this description ; and I think it ought to h% so considered. 
 
 Where a party has, through his own laches, suffered his license 
 to expire, he has no right, after government has changed its policy, to 
 call upon the court to give it new life, and to awaken it from that 
 state in which it had slept for months and years. But where a license 
 has been fairly acted upon as far as the party was enabled to pro- 
 ceed, the court is not called upon to put the transaction in motion, 
 but to protect its progress ; and, I think, such a case is fully entitled 
 to that protection which it would have derived from the license at 
 the time when it was put in operation, and was impeded by extrane- 
 ous circumstances. This is no novel principle ; it is the application 
 of the common and known rule of law, nunc pro tunc. The court 
 will accept that as done now which would have been done before, 
 but for insurmountable difficulties ; and I shall, therefore, restore the 
 ship and cargo, subject to the captors' expenses. 
 
 21' 
 
357 CASES DETERMINED IN THE 
 
 The Jonge Frederick. Edw. 
 
 [ * 357 ] * JoNGE Frederick, Cloassen. 
 
 May 10, 1810. 
 
 License to proceed from this country with a cargo, sufficient to protect the vessel returning 
 ' with the same cargo, haying been prevented from delivering in the enemy's port. 
 
 This was the case of a vessel under Prussian colors, which had 
 sailed from London for Ostend, under a license to proceed with a 
 cargo of British manufactured goods, &e., to any port between the 
 island of Walcheren and Boulogne. On her way to Ostend the ship 
 was driven by stress of weather intp Nieuport, where her license was 
 destroyed to prevent seizure by the officers of the French govern- 
 ment, and application was made for permission to land and dispose 
 of the cargo there, but it was refused. Under these circumstances, 
 the agents of the British n^grchants received directions from England 
 to send back the ship with, her cargo to this country, and on her 
 return she was captured and brought in for adjudication. In the 
 claim it was stated, that the British merchants, in order to avoid any 
 inconvenience that might arise from the destruction of the license at 
 Nieuport, had applied for another license, permitting the vessel to re- 
 turn with the cargo she had carried out; and this second license was 
 annexed to the claim. 
 
 Judgment. 
 Sir W. Scott. I have no doubt that the license to return is 
 unnecessary in this case, the master having found it impossible to 
 dispose of his cargo in- the port of the enemy to which he was 
 destined when the first license was obtained. Because the permission 
 of his Majesty's government having been granted to export this 
 
 cargo, the original license must be sufficient for the protec- 
 [ *358 ] tion of the ship and cargo, not only ewfido, *but redeundo, 
 
 where the original purpose has been defeated by the elements 
 ■or the acts of the enemy. At the same time, in order to entitle him- 
 self to this benefit, it is absolutely necessary that the claimant should 
 .show that these are the identical goods that were carried out, and 
 that no others were taken on board in the enemy's port. But as there 
 is no particular reason for any suspicion of fraud in this case, the 
 court will content itself with an affirmance on oath that no other 
 goods were taken on board the vessel. Restored. 
 
HIGH COURT OF ADMIRALTY. 359 
 
 The Europa. Edw. 
 
 EuROPA, Sundberg.i 
 
 March 15, 1810. 
 
 Naval stores — condition of license to touch at Leith for convoy, not complied with — license 
 invalidated, hut the naval stores protected on other grounds — the remaining part of cargo 
 condemned. 
 
 This was the case of a vessel under Dantzic colors, which was cap- 
 tured on a voyage from Riga to London, with a cargo of hemp and 
 iron. The ship and cargo were claimed as protected under a lioense, 
 and it was argued, on the part of the captors, that the vessel having 
 been captured to the westward of the Texel, she had violated an im- 
 portant condition of the license, by which it was provided, that if 
 any part of the import cargo should consist of naval stores, and be 
 destined to any port south of Hull, the vessel should proceed to 
 Leith or Dundee for convoy, and, consequently, that requisition not 
 being complied with, the parties could not claim protection for their 
 property under the license. 
 
 « 
 
 For the claimants it was contended, that a license for 
 the hemp was unnecessary, as it was fully protected *by [*359 ] 
 the order in council of the 4th February, 1807, and that the 
 license applied only to the iron, which did not come within the 
 description of naval stores. 
 
 Judgment. 
 Sir W. Scott. I am perfectly clear, that if this case stood upon 
 the license alone, the ship and cargo must be condemned, as there 
 has been a violation of a fundamental condition of the license, with- 
 out which it cannot have effect, unless it were shown, that from stress 
 of weather, or some other insurmountable obstacle, the condition 
 could not be complied with. Where that, indeed, is the case, the 
 court would take upon itself to do that which it must presume the , 
 government would have done under the known rule of law, that no 
 persons can be bound to impossibilities. No impossibility is sug- 
 gested in the present case ; but I think there is a good deal in the 
 argument, that the order of 4th February, 1807, is sufficient for the 
 protection of the hemp, and, consequently, of the vehicle that con- 
 
 i [Affirmed on appeal, January 26, 1811.J 
 
360 CASES DETERMINED IN THE 
 
 The Cornelia. Edw. 
 
 — _ ^ . — , 
 
 veys it, as that order permits the importation of hemp and other 
 enumerated articles, in neutral vessels, from any port not under 
 blockade. I can by no means accede to the position, that because 
 the parties had recourse to the protection of a license, therefore the 
 order in council is superseded. Suppose they had overlooked the 
 order in council, it is not the less imperative upon the court, and I 
 cannot overlook it. The hemp, therefore, must be restored ; but as a 
 substantive condition of the license has been violated, it is vitiated 
 in toto, and cannot enure to the protection of the other part of the 
 cargo, which is not within the order in council, and therefore I shall 
 condemn the iron. 
 
 [ * 360 ] * Cornelia, Roose. 
 
 May 17, 1810. 
 
 License to bring a cargo to this country sufficient to protect the voyage in ballast to the port 
 
 of shipment. 
 * 
 Judgment. 
 Sir W. Scott. This is the case of a Prussian vessel, which was 
 captured on a voyage from Boulogne to Varel, in ballast, and as- 
 serted to be going thither for the purpose of bringing a cargo to this 
 country, under a license permitting a vessel bearing any flag, except 
 the French, to proceed with a cargo of enumerated articles to any 
 port of this kingdom north of Dover. The question, for my deter- 
 mination is, whether or not this permission is to be considered as a 
 sufficient protection for the vessel, on her way to the port of lading, 
 in ballast ; this license being expressed in terms which look only to 
 the voyage from the port of lading to this country, as it does not 
 contain the usual clause, permitting the vessel to proceed to the port 
 of lading in ballast. I confess that I should be inclined to hold that 
 it is a sufficient protection, under such circumstances ; but it would 
 only be indurectly, and by an extension of the terms of the license, 
 that the ship could be so protected, and therefore I must have the 
 clearest proof that she was actually proceeding to the port of Varel, 
 for the express purpose specified in the license. 
 
 Subsequently condemned, on failure of proof of the intention of 
 proceeding to Varel, for the purpose of bringing a cargo to this 
 country. 
 
HIGH COURT OF ADMIEALTY. 361 
 
 The Sarali Maria. Edvv. 
 
 * Sarah Maria, Marstrand. [*361] 
 
 May 30, 1810. 
 Corn license ; time extended. 
 
 Judgment. 
 
 Sir W. Scott. This is the case of a vessel laden with wheat, 
 and bound on a voyage from Marennes to London, and claimed as 
 protected under his Majesty's license, which expired on the 28th 
 January, 1810, the vessel not having cleared out from the French port 
 until the 24th March. ' 
 
 I must here take the opportunity of observing, that it is not merely 
 from a tenderness for the hardships to which British merchants are 
 exposed, but from a due attention to the policy of the government, 
 under the known fact of an existing scarcity of grain in this coun- 
 try, that the court is disposed to give the utiiiost effect to these corn 
 licenses, and to expect that, on the part of the captors, no unneces- 
 sary difficulties will be thrown in the way of restitution, when the 
 most satisfactory information has been offered them by the merchants 
 of this country. The court has, in other instances, extended the time 
 for licenses, on account of impediments arising in the ports of the 
 enemy ; and his Majesty's government has, in these cases, felt the 
 same necessity. Successive orders in council have extended the 
 periods for the expiration of licenses for the importation of grain, 
 where impediments have arisen to prevent their being carried into 
 effect sooner. This is a fact, of which the captors can hardly have 
 been ignorant. Nor can I construe the intention of his Ma- 
 jesty's government so narrowly as to suppose, ars has * been [ * 362 ] 
 suggested, that the impediments in the contemplation of 
 the government were solely those attending the clearing out of the 
 vessels from the enemy's ports. The indulgence must embrace, also, 
 the difficulty of procuring ships for the purpose, and all other insur- 
 mountable impediments, of whatever description. In the present 
 case, the cause of the delay has been explained ; but, as this license 
 is out'of da,te, it is suggested that it may have been used before, and 
 it is urged against the claimants that they have not negatived that 
 imputation. I shall certainly not require that to be done ; where 
 there is nothing to raise a suspicion of such an abuse of the indul- 
 gence, I will not lay such an onus upon the British merchant. This 
 is the first case in which I have had an opportunity of delivering my 
 
363 CASES DETERMINED IN THE 
 
 The Henrietta. Edw. 
 
 sentiments on this subject, and I wish them to be attended to by 
 captors. As it is the first case of this class, I shall give the captors 
 their expenses ; but I wish it to be understood that I will not do it in 
 any future case arising under the same circumstances. 
 
 [ * 363 ] * Henrietta, Torbiornsen. 
 
 July 31, 1810. 
 
 License to import into this country sufficient for the voyage to a British port, with an ulte- 
 rior destination to a port of the enemy, after paying tonnage duties. 
 
 This was the case of a Danish vessel, proceeding with a cargo of 
 rye from Fannoe to Leith, under a license allowing her to import 
 permitted articles into any port of this country north of Dover, but 
 ultimately with the intention of going to North Bergen with her 
 cargo, after paying the tonnage duties at Leith, and obtaining per- 
 mission to go there if it could be had. 
 
 Judgment. 
 SiE W. Scott. I am inclined to think that this is a fair case on 
 the part of the master, and that it would be narrowing the construc- 
 tion too much to say, that a destination to Leith to pay tonnage 
 duties is not a good execution of the license. The license author- 
 izes the importation of a cargo into Leith from the port of the enemy, 
 and the master says he intended to go on to Bergen after payment 
 of the duties at the British port ; but this intention must be under- 
 stood with reference to the authority and permission of the govern- 
 ment of this country subsequently to be obtained. I do not see how 
 that ulterior purpose can vitiate the license for the voyage to Leith ; 
 it is but fair to suppose that, on the arrival of the vessel there, appli- 
 cation would have been made to government for a fresh license to 
 proceed to Bergen. It might not be possible for the parties in a 
 foreign port to obtain the exact kind of license that would authorize 
 
 the continuous voyage to Bergen, and therefore they divide 
 [ * 364 ] the voyage, and proceed first to a British port, avowing * the 
 
 purpose of going on to Norway at the bottom of the license. 
 Had the vessel been captured on the ulterior branch of the voyage, 
 with only this license on board, the case would have been different ; 
 but she is actually proceeding to the port of Leith at the time of cap- 
 
HIGH COURT OF ADMIEALTY. 365 
 
 The "Wolfarth. Edw. 
 
 ture, and under a sufficient protection for that branch of the voyage. 
 I shall, therefore, restore, allowing the captors their expenses. 
 
 NicoLiNE, Nielson. 
 
 August 1, 1810. 
 
 License to carry com from Denmark to Norway. Military stores concealed. Condem- 
 nation. 
 
 Judgment. 
 Sir W. Scott. The question in this case is, whether this ship is 
 entitled to protection from the license on board ? For if not, as 
 Danish property, the vessel will be subject to condemnation. No 
 principle, applicable to questions of this nature, is better founded in 
 reason and justice than that all persons trading under the protection 
 of licenses are bound to act with the purest good faith, and the obli- 
 gation is in no degree diminished where the privilege is granted to 
 an enemy. Now what is the case here ? The vessel is permitted, 
 by the license on board, to proceed with a cargo of corn only, from 
 Denmark to Norway, first touching at Leith to pay tonnage daties ; 
 but it turns out that a quantity of fire-arms of different descriptions 
 have been found stowed away under the cargo. It is impossible to 
 suppose that, by granting a license to carry corn, it was ever intended 
 by his Majesty's government to permit the transport of articles of 
 this noxious description from Denmark to the ports of Nor- 
 way, which are crowded with privateers. * I have no doubt [ * 365 ] 
 that this breach of good faith amounts to a total defeasance 
 of the license, and, consequently, that the ship and cargo must be 
 condemned. 
 
 Wolfarth, Harting. 
 
 August 1, 1810. 
 License to go to the enemy's port in ballast. Cargo on board. Condemnation. 
 This was the case of a Prussian vessel, which was captured on a 
 
366 CASES DETERMINED IN THE 
 
 The Emma. Edw. 
 
 voyage from Stettin to St. Petersburg, for the purpose of bringing a 
 cargo of tallow and hemp to this country from the latter port, under 
 a license which was on board the vessel at the time of the capture, 
 and -which enabled her to go there only in ballast. The master had 
 a quantity of beech wood on board, which, in his deposition, he 
 described as ballast, but the cabin-boy, in his evidence, stated it to 
 be half a cargo. 
 
 Judgment. 
 
 Sir W. Scott. This is conduct which it becomes this court to 
 watch with the utmost jealousy. If the condition of the license is 
 such that the vessel is to proceed to the enemy's port in ballast, it is 
 obvious that she cannot be permitted to carry thither any thing that 
 comes fairly within the description of cargo. Here is a certificate of 
 origin on board, which, in itself, is sufl5cieni to give that character to 
 the commodities on board ; and to say that indulgence is to be 
 shown in this case, merely because the amount of the cargo is only 
 equal to half the tonnage of the shii?,is to say that the orders in 
 council shall be carried into effect to the extent of a rnoiety only. 
 
 Ship and cargo condemned. 
 
 [ * 366 ] * Emma, Mallgren. 
 
 August 1, 1810. 
 
 ToucMng for orders at an interdicted port, not known to be such at the time of sailing. 
 
 Restitution. 
 
 Judgment. 
 Sir W. Scott. This is the case of a vessel which was captured on 
 a voyage from Riga to Gottenburg, for orders, and I am certainly by no; 
 means disposed to relax the rule prohibiting vessels with licenses to 
 this country from going into any interdicted port for orders. When 
 the capture took place, the ports of Sweden had become interdicted 
 ports to this vessel, under the order 7th January ; but it does not 
 appear that, at the time when the vessel sailed, the parties at Riga 
 had any knowledge of the exclusion of the British flag from the 
 ports of Sweden ; that exclusion did not take place till the 24th of 
 April, and this vessel sailed from Riga on the 24th of May. There 
 was, indeed, something of a rumor prevalent at Riga at the time, 
 
HIGH COURT OF ADMIRALTY. 367 
 
 The Frau Magdalena. Edw. 
 
 that such was the state of things in Sweden, but not in such a shape 
 as would necessarily induce an actual belief of it ; and I shall, there- 
 fore, permit evidence to be brought in, for the purpose of showing 
 whether the fact was publicly known at Riga when the ship sailed. 
 
 Ultimately restored, as it was not shown that the fact of the exclu- 
 sion of the British flag from the ports of Sweden was known at Riga 
 when the ship sailed. 
 
 * Feau Magdalena, Hansen. [ * 367 ] 
 
 October 24, 1811. 
 Touching at interdicted port for orders — license violated — condemnation. 
 
 Judgment. 
 Sir W. Scott. ■ This was the case of a Danish vessel, captured 
 on a voyage from St. Petersburg to London, under a license, but 
 with directions to touch at Neustadt for orders. A claim has been 
 given for the ship, as coming to London, and for part of the cargo 
 only, as consigned to a house of credit in this town. In support of 
 this assertion, a letter of advice is referred to, by which the British 
 claimants say that they were enipowered to dispose of this portion 
 of the cargo, and that they believe the voyage was to end in a port 
 of this country. But that is matter of belief only. In point of fact, 
 they know nothing of the transaction but from the letter on board, 
 which is not sufficient ; for it can be matter of no great difficulty for 
 the foreign shippers to write a letter to that effect to their corres- 
 pondents here, and to countermand it afterwards, if they should be 
 able to dispose of their cargo elsewhere. It is said, that all the evi- 
 dence in the case supports the averment of an actual destination tO' 
 London. That is not so ; the master was to call at Neustadt for 
 orders, which might have been of a contrary tenor, directing him to 
 deliver his cargo in that port. 
 
 ^ It has been repeatedly decided in cases of iDlockade, and this class 
 of cases must be decided by analogy to the rules of blockade, that a 
 vessel cannot be permitted to touch at an interdicted port for orders,, 
 under a license for a direct voyage to this country. This 
 *i3 a rule which the court has felt it necessary rigidly to [*368 ], 
 adhere to, except in those cases where the vessel had quitted 
 
 EDW. 22 
 
369 CASES DETERMINED IN THE 
 
 The Hoppet. Edw. 
 
 the intermediate port with the identical cargo she had carried in, and 
 was actually proceeding for England at the time of capture. In 
 those cases, the presumption.' that there was an intention of deliver- 
 ing at the intermediate port was repelled by the fact, that the ship 
 had come out again with the same cargo, and the court therefore 
 relaxed the rule. The rule is founded not only upon the presump- 
 tion that, at the intermediate port, the vessel might receive another 
 destination, but that she might actually deliver her cargo in that 
 very port. The court cannot inquire, nor has it the means of ascer- 
 taining, whether there was any mala fides in the contemplation of 
 the parties ; it can merely look to the fact whether the vessel was 
 going to an interdicted port or not ; and, if so, the presumption of 
 law must be, that she was going thither for the purpose of violating 
 the license. The fact may, in gome cases, be otherwise, and the rule 
 may, at times, operate with severity upon innocent persons; but it is 
 a sacrifice which must be made to the general security. 
 
 In the present instance, the parties may, for any thing that appears, 
 have intended to act honestly ; but they are doing that which, in 
 express terms, the law of this country prohibits, and I must, therefore, 
 hold this ship and cargo subject to condemnation. 
 
 [ * 369 ] * HoppET, Halberg. 
 
 November 1, 1811, 
 
 Touching at interdicted port for orders. License expressly permitting it. Restitution. 
 
 Judgment. 
 SiK W. Scott. This vessel was proceeding, at the time of cap- 
 ture, on a voyage from St. Petersburg to London, under a license 
 permitting her to come to this country after touching at a Swedish 
 port for orders ; and it is the first license of the kind that has come 
 before the court. The general principle maintained by this court 
 has been, that a vessel proceeding under license from an interdicted 
 port to a port of this country is not at liberty to touch at another 
 interdicted port for orders. But for reasons which have approved 
 themselves undoubtedly to the government of this country, licenses 
 have been granted, containing the express permission to call at Swe- 
 dish ports for instruction. It is the clear duty of this court to uphold 
 
HIGH COURT OF ADMIRALTY. a70 
 
 The Bourse. Edw. 
 
 the intention of his Majesty's government, by granting to the claim- 
 ants immediate restitution ; and as the voyage has been defeated by 
 the seizure, I shall not allow the captor his expenses, who, with this 
 license staring him in the face, had certainly no right to interrupt 
 this course of the transaction. 
 
 * Bourse, alias Gute Erwagtung, [*370] 
 
 November 1, 1811. 
 License to sail nnder any flag except the Prench held to exclude French ownership. Con- 
 
 JUDGMENT. 
 
 Sir W. Scott. This is the case of a vessel navigating under 
 Prussian colors, but in reality belonging to French owners. The 
 ship w?LS captured on a voyage from Bordeaux to London, under a 
 license permitting her to sail under any flag except the French ; and 
 the question is, whether the ship is entitled to protection ? The 
 cargo, which belongs to other parties, and is not involved in the 
 question, has been restored by consent. It has always appeared to 
 me, that the exception of the French flag only is not very clear and 
 intelligible ; but if I am called upon to construe it, I am inclined to 
 hold that a vessel, being French property, was intended to be ex- 
 cluded from the benefit of the license, although not accompanied 
 with the formal characteristics of the French flag. Wherever, there- 
 fore, these words, " bearing any flag except the French," have pre- 
 sented themselves to the notice of the court, it has felt the necessity 
 of giving them a more substantive meaning, as excluding French 
 interests, and has held, that where French interests clearly appear, 
 the vessel cannot be protected by the mere absence of the French 
 flag. If otherwise, the whole French navigation might be conducted 
 with the utmost safety; nothing else being requisite but that a foreign 
 flag should be substituted for the French. It does not appear to me 
 that it could be the intention of the state to give that accommoda- 
 tion to the public enemy. If I am wrong in this supposition, the 
 error must be corrected by superior authority. In the present case, 
 
 1 [The Jonge Arendl, 5 C. Eob. 14.] 
 
371 CASES DETERMINED IN THE 
 
 The Jonge Clara. Edw. 
 
 the vessel is navigating under the Prussian flag, but the prpperty is 
 proved to be French, and I shall, therefore, condemn the ship. 
 
 [ * 371 ] * Jonge Clara, Stevens. 
 
 August 7, 1811. 
 
 License to sail under any flag except the French, held to protect the property of persons in 
 countries unexpectedly annexed to France while engaged in British commerce. Construc- 
 tion of the terms of the license as to the quality of the cargo. Non-6numerated articles 
 condemned without freight. 
 
 W' 
 Judgment. 
 
 Sir W. Scott. This is the case of a vessel taken on a voyage 
 from Bordeaux to London, with a cargo of wine, seeds, cream of tar- 
 tar, verdigris, capers, and other goods. A claim is given in for the 
 ship and cargo, as protected under the license on board, permitting 
 this vessel, under any flag except the French, to export from London 
 and Poole to any port in France, between L' Orient and the river 
 Garonne, any articles which by law might be exported, except cottbn- 
 wool, and to import in return a cargo of grain, meal, flour, burr- 
 stones, seeds, French cambrics, lawns, olive oil, and wine; upon 
 condition that the vessel importing the wine, should have exported 
 to France under the same license British or East India manufactured 
 goods, sugar and coffee, and that the cargo so to be imported should 
 consist of two thirds in bulk of grain, meal, flour, and seeds, and in 
 no case of more than one third in bulk of wine. The ship is the 
 property of a person at Embden, and it is contended by the captors, 
 that in consequence of the annexation of that place to France, this 
 vessel is now liable to be considered as the property of a French 
 subject. But I observe that the ship is described by name in the 
 license which was granted for its protection while engaged in British 
 commerce, and it can hardly be contended, that a sudden and unex- 
 pected change in the political relations of the country to which she 
 belonged should deprive her of thafe protection, if the parties have 
 
 acted fairly under it. It is a known fact, that many vessels 
 [*372] belonging to countries annexed *to France have obtained 
 
 licenses, and that no alteration was made in that respect 
 until February of the present year. 
 
 But it has been further urged on the part of the captors, that this 
 
HIGH COURT OF ADMIEALTY. 373 
 
 The Jonge Clara. Edw. 
 
 license has been violated in many respects ; that the quality of the 
 outward and return cargoes were not such as are permitted by the 
 license, and that it had expired before it was made use of. It is said, 
 that by this license the parties were bound to carry out British or 
 East India manufactured goods, sugar or coffee, to the amount, at 
 least, of one third of the tonnage ; and that, in point of fact, the out- 
 ward cargo consisted of salted codfish and herrings. In my appre- 
 hension, these goods are sufficiently within the spirit and meaning of 
 the license ; they are not in a state of nature ; they were cured in this 
 country j they are articles which have received the aid of British in- 
 dustry, and in which ihe commerce of the country is deeply interested. 
 Indeed, if any doubt could arise upon the subject, the custom-house 
 clearance, where the nature of the articles composing the outward 
 cargo must have been fully understood, would put the question at 
 rest. 
 
 Another objection started is, that the vessel has some goods on 
 board which are not permitted by the license, which provides, that 
 the return cargo shall consist of grain, meal, flour, and seeds, and in 
 no case of more than one third of wine ; and it is thence contended, 
 that in conformity with the terms of the license, the cargo must 
 necessarily consist of two thirds of the first descriptions, and that 
 this condition is a sine qua non, and that where it is not complied 
 with, the license is vitiated in toto. I cannot think so, as it appears 
 to me, that the restriction is thrown loose by the words, " in 
 no case," which immediately follow; because, * supposing [* 373 ] 
 the parties were not to be permitted. to substitute any other 
 articles, those words, which qualify and mitigate the preceding im- 
 perative words, would be nugatory. I am therefore inclined to hold, 
 that the terms of the license are sufficiently satisfied, if the quantity 
 of wine does not exceed one third of the tonnage. There are other 
 goods on board which are not within the enumeration of the license, 
 and they must of course be condemned, but the penal consequences 
 will not go to affect the license. It would fall extremely hard upon 
 the commercial interests of the country, if the innocent goods of one 
 merchant should be confiscated on account of the rnisconduct of 
 another. Such a position would carry the doctrine of infection 
 beyond what is done even in cases of contraband, where the penalty 
 attaches only to the property belonging to the same owner. 
 
 I cannot admit that this license has been vitiated on any such 
 grounds as those I have adverted to ; but there is a farther objection, 
 which is, that this license was granted on the 2d October, 1810, for 
 four months, and it appears that this ship was captured so late as the 
 4th July, 1811. This, certainly, is a circumstance which requires the 
 
 22* 
 
374 CASES DETERMINED IN THE 
 
 The Jonge Clara. Edw. 
 
 fullest and most satisfactory explanation, for parties are bound to 
 adhere to the terms of the license under which they claim protection, 
 unless they can show that they were prevented from so doing by some 
 unavoidable impediment. Licenses are granted upon the exigency 
 of the moment, and it is obvious, that strong reasons of policy may 
 operate with his Majesty's government to cause or to prevent the 
 granting of them at different times ; and it is the business of .the 
 government, an3 not of the private merchant, to say at what periods 
 this permitted intercourse with the ports of the enemy shall take 
 
 place. 
 [ * 374 ] * Wherever the license has been out of date, the court has 
 
 not shown a disposition to be pedantically narrow on this 
 point,* or to notice a trifling excess ; but here I think it highly neces- 
 sary to call upon the parties for some explanation of the delay. In 
 former cases, the court has held the embargo of the enemy to be a 
 sufficient excuse, thinking it hard, that through the act of the enemy 
 the British merchant should lose the benefit intended him by his own 
 government, which would be in effect to place him at .the mercy of 
 the enemy. But then the embargo must be satisfactorily proved. 
 The court cannot so construe a license as to allow a ship to proceed 
 to the enemy's port, and to remain there an unlimited time at the 
 discretion of the parties. Now it is certainly unfavorable to this case, 
 that no charter-party is exhibited, binding the master to return ; and 
 I observe also, that the papers on board seem to represent the lading 
 of the vessel as having taken place so late as May and June ; a delay 
 which must be fatal to the case, unless it can be shown that there was 
 an embargo. The master says, that he was under an embargo from 
 January to the middle of June ; but this cannot be considered as a 
 matter proved upon his mere averment. The utmost indulgence I 
 can show the claimants, is to allow them to establish that fact by 
 other evidence, and such evidence they must possess, as I conceive it 
 to be impossible that the merchants in this country should not have 
 -received some intimation of the cause of the detention of the vessel 
 "during so many months. 
 
 On a subsequent day, the court, upon the production of the further 
 iproof, restored the ship and the wine, but refused freight and expenses 
 to the neutral master upon the non-enumerated goods condemned, as 
 ,the vessel was not privileged to carry them. 
 
HIGH COURT OF ADMIRALTY. 375 
 
 The Minerva. Edw. 
 
 * Minerva, Davidson. [ * 375 ] 
 
 October 29, 1811. 
 License on condition of touching at Leith — not complied with — condemnation. 
 
 This was the case of a vessel under Danish colors, with a cargo of 
 deals, lathwood, staves, &c., captured on a voyage from Christiansand 
 to Jersey. A license was obtained for this vessel by name, by which 
 it was provided that she should go to Leith, there to take convoy to 
 the Downs or Portsmouth, and from thence to take convoy for Jersey. 
 The vessel had not gone to Leith, but was steering to Yarmouth to 
 take convoy there ; and the question therefore was, whether the court, 
 under such circumstances, could say that the license had been suffi- 
 ciently complied with. 
 
 Judgment. 
 Sir W. Scott. This is the case of a vessel which is claimed as 
 protected under a license; the cargo is asserted to belong to British 
 merchants, but I do not observe that it is so set forth in the claim. 
 It is a license which is granted for this particular ship to carry a cargo 
 from Christiansand to Jersey, on the condition that she shall touch 
 at Leith for convoy. The license is granted to these British mer- 
 chants on a condition for which they are responsible ; they stipulate 
 with government for a due observance of the terms of the license, 
 and if thfe terms are departed from in any essential point, the court 
 cannot protect the parties from the inevitable consequences. The 
 question then is, has this license been virtually and substantially 
 carried into execution ? Certainly not. Here is not a mere 
 'departure from a subordinate regulation; it is a funda- [*376 ] 
 mental condition of the license, without which it would not 
 have been granted. The court is not called upon to inquire into the 
 reasons of this regulation ; but it is highly probable that his Majesty's 
 government may think it proper that vessels with cargoes of this 
 description on board should take convoy at Leith, that they may be 
 subject to British inspection in that part of their navigation which 
 brings them into the neighborhood of the ports of the enemy. It is 
 evidently introduced for that purpose, and being so, can never be con- 
 sidered as a condition to be waived at the option of the party who 
 has accepted it. The condition is fundamental, and the breach of it 
 must be fatal. It is not for me to relax those terms on which the 
 public wisdom has deemed the conveyance of such articles to be con- 
 sistent with the public safety. 
 
377 CASES DETERMINED IN THE 
 
 The St. Iran. Edw. 
 
 St. Ivan, Wacklin. 
 
 November 12, 18H. 
 License obtained subsequently to tie date of the cfipture — no protection.1 
 
 This was the case of a Russian vessel with a cargo of pitch and 
 tar, which had sailed from Uleaborg, in Finland, on the 16th of July, 
 1811, for London, and was captured on the following day. A claim 
 was given by the consignees in this country for the cargo as Swedish 
 property, stating that they had received a letter from the owners, 
 dated 11th July, 1811, directing them to apply to his Majesty's go- 
 vernment for a license permitting the ship St. Ivan to proceed from a 
 port in Sweden to the port of London, with a cargo of pitch and tar. 
 Application was accordingly made by them at the council 
 [*377 ] office, and a license was * granted, dated 30th July, 1811, 
 which was annexed to the claim, together with a letter ad- 
 dressed to the consignees by the owners, dated 11th July, 1811, stat- 
 ing that they had ordered the master to sail without waiting for the 
 license, in order to avoid delay. 
 
 Judgment. 
 
 Sir W. Scott. This ship, which is clearly Russian property, was 
 captured on the 17th of 9uly, 1811, on a voyage from Uleaborg to 
 London, with a cargo of pitch and tar. The ship is claimed as pro- 
 tected under a license, dated 30th July, 1811, which is ttj^ny days 
 after the capture ; the question therefore is, whether the license, which 
 is annexed to the claim, can by any means have a retroactive effect, 
 so as to protect this ship and cargo, and I am clearly of opinion that 
 it cannot. 
 
 The statute ^ which authorizes the council to grant such licenses 
 as his Majesty was in the habit of granting, can be carried no further 
 than the term license, which is an instrument in its very nature pro- 
 spective, pointing to something that has not yet been done, and can- 
 not be done at all without such permission. Where the act has been 
 already done, and requires to be upheld, it must be by an express 
 confirmation of the act itself, or by an indemnity granted by the' 
 party ; but a license necessarily looks to that which yet remains to be 
 done, and can extend its influence only to future operations. It is 
 
 t [The Vrow Deborah, 1 Dod. 160.] 2 43 Geo. IH. 
 
HIGH COUET OF ADMIEALTY. 378 
 
 The St. Ivan. Edw. 
 
 true that it has been held in this court, as well as in the courts of 
 common law, (for there have been decisions expressly upon this point,) 
 that the king may, for reasons of state, release a prize as against the 
 interest of the captors. The captors bring in their prizes subject to 
 such interposition on the part of the crown, but it is of very 
 *rare occurrence, and speaking with all due reverence, ought [*378 ] 
 to be of rare occurrence, and only under very special circum- 
 stances ; as, for instance, where the detention of the yessel may be 
 detrimental to the general interests of the country. In such cases 
 there can be no serious doubt of the authority or of the intentions of 
 the crown. The order for release recites the capture and detention, 
 and proves the knowledge and intention of the crown acting upon 
 those facts. But the council has no such power, and could have no 
 intention to go beyond the powers conveyed to it by the act of par- 
 liament, which extends only to the granting of licenses. 
 
 In the present instance, when the license was applied for, it was 
 totally withdrawn from the knowledge of the council that the ship 
 had sailed, still less that she had been taken ; for the license is granted 
 " upon condition that the vessel shall clear out from the port of Ore- 
 grund on or about the first day of Septemlier, 1811." The license, 
 therefore, is clearly out of the question, although the parties seem 
 with great sincerity to have. relied on it for protection, as I observe 
 the master, in his instructions, is told to proceed to Hano to join con- 
 voy, and that there he will receive the license expected from England. 
 But whatever may have been their expectations or intentions, it can- 
 not avail them ; and it only remains for me to consider, whether the 
 cargo can be protected on any other ground. As to the ship, there 
 can be no doubt what must be its fate, as Eussia is at war with this 
 country. The cargo, which is documented as Eussian property, the 
 master says was to be delivered in London on account of the owner 
 of the vessel, as he believes, upon the information he derived from the 
 owner in Finland, and in this he is confirmed by all the 
 ship's papers. It is true, a claim has * been given on behalf [ * 379 ] 
 of the house of Falcke & Co., of Stockholm, in opposition 
 to the ship's papers and the depositions ; such claims, in opposition 
 to the original evidence, have been in some few instances, and under 
 very strong, circumstances, admitted, but with the utmost jealousy 
 and caution, and never without an explanation in the claim. Here, 
 on the contrary, no explanation, no evidence is offered in support of 
 this Swedish claim ; it rests upon the mere broad assertion of 
 Swedish property. Under such circumstances, I am bound to say 
 the claim cannot be admitted; and the cargo, therefore, as Eussian 
 property, must follow the fate of the ship. 
 
380 CASES DETERMINED IN THE 
 
 The Hector. Edw. 
 
 Hector, Eels. 
 November 28, 1811. 
 
 Condition to touch at Leith, if destined to any port of this kingdom south of Hull, not held ' 
 to include the ports of Ireland. 
 
 This was the case of a vessel under American colors, captured on 
 the coast of Norfolk, on a voyage from Archangel to Dublin, with a 
 cargo of hemp, flax, tar, &c. The license was for a vessel under any 
 flag except the French, to proceed to a port of the United Kingdom, 
 and stipulating, that if the vessel should be destined to any port of 
 this kingdom south of Hull, with naval stores, she should stop at 
 Dundee 'or Leith for convoy, which in this instance had. not been 
 complied with ; and on that ground the captors pressed for condem- 
 nation. 
 
 Judgment. 
 Sir W. Scott. It has been held that the words, this kingdom, 
 
 since the union, must generally be considered to mean this 
 [ * 380 ] United Kingdom, for the kingdom of * England, as a separate 
 
 kingdom, has ceased to exist. If, therefore, this license was 
 to be construed on a strict technical sense of the words, Ireland 
 would certainly be included. But as this court has been accustomed 
 to construe licenses with reference to the probable intention of his 
 Majesty's government in granting them, and considering that this is 
 a mode of expression not likely to be employed, if the ports of Ireland 
 were intended to be included, I think I must understand the condition 
 as applying to ports of England south of Hull. It would be an 
 awkward and indirect mode of prescribing the conduct of vessels 
 bound to Ireland, to distinguish ports of that island as south of Hull. 
 And I am confirmed in this view of the subject, by the circumstance 
 that late licenses which have been granted for the ports of Ireland, in 
 which another mode is adopted for securing the delivery of the cargo 
 at the asserted port of destination, namely, by a clause which makes 
 it imperative on the parties to go north about.^ It is likewise to 
 be observed, that in this license the words, this kingdom, appear to 
 
 iln the case of The Success, Smith, December, 1811, the license contained the fol- 
 lowing clause : " If to Ireland, the vessel shall go north about ; if to any port of this 
 kingdom south of Hull, then to stop at Dundee or Leith for convoy." 
 
HIGH COURT OF ADMIRALTY. 381 
 
 The Snipe, and others. Edw. 
 
 be placed in some degree of opposition or exception to the words, 
 United Kingdom, which has been used in the antecedent part of the 
 sentence. 
 
 * The Snipe, and others. [ *381 ] 
 
 July 30, 1812. 
 
 Breach of the blockade imposed under the retaliatory order in council of 25th April, 1809. 
 Revocation of the Berlin and Milan decrees not proved. Condemnation.! 
 
 Judgment. 
 
 Sir W. Scott. This American ship was taken by a British priva- 
 teer, near the mouth of the river of Bordeaux, upon the 28th March 
 last, with papers for Gottenburg, but certainly going to Bordeaux. 
 A claim has been given for the ship and cargo, as the property of 
 American citizens. On the part of the captors it is contended, that 
 the ship and cargo are liable to condemnation under the British orders 
 in council. On the part of the claimants it is contended, that the 
 operation of those orders had ceased, the French decrees, to which 
 they were retaliatory, having been repealed, and consequently the 
 British orders having expired in point of justice and authority, and 
 according to pledges solemnly and repeatedly given by the British 
 government, that they should cease whenever the French decrees 
 w* actually revoked. This case, which involves some othe» cases 
 that resemble it in the general circumstance of the ship's being em- 
 ployed in voyages to and from France about this time, has been 
 argued with much zeal and ability, and now stands for the final 
 judgment of the court. 
 
 It is not necessary to travel minutely into the history of the public 
 transactions of the several governments which have produced this 
 and other questions, arising out of their several public declarations. 
 It is matter of universal notoriety, that the French ruler 
 published, in November, 1806, a decree dated at * Berlin, [ * 382 ] 
 (from whence it usually takes its title,) by which he declared 
 the British isles to be in a state of blockade. That the British 
 government, in January and November, 1807, published orders of 
 
 l[TheFox, Edw. 311.] 
 
383 CASES DETERMINED IN THE 
 
 The Snipe, and.others. Edw. 
 
 blockade, the former prohibiting the trade of neutrals between ports 
 from which the British flag was excluded, the latter imposing a total 
 blockade of those ports. These orders were intende'd and professed 
 to be retaliatory against France; without reference to that character, 
 they have not, and would not have been defended ; but in that cha- 
 racter they have been justly, in my apprehension, deemed reconcilable 
 with those rules of natural justice, by which the international com- 
 munication of independent states is usually governed. On the 26th 
 December following, the French government issued an edict, dated 
 Milan, (from whence it is commonly denominated,) by which a still 
 stronger pressure was imposed on British commerce and British 
 maritime warfare. On the 26th April, 1809, the retaliatory measure 
 on the part of Great Britain, dated November, 1807, was restricted 
 in the extent of its local operation, and these two orders, namely, the 
 order of January, 1807, and the restricted order of April, 1809, are 
 the orders now in force, and it is upon the latter that this vessel is 
 proceeded against by the British captor, being taken on a voyage to 
 one of the ports to which the British blockades have been restricted. 
 The "United States, in March, 1809, passed a non-intercourse act 
 directed against both countries, but accompanied with a legislative 
 declaration that it should cease to operate against either belligerent 
 which should repeal their respective orders of blockade. In August, 
 
 1810, the person styled Due de Cadore wrote a letter to the 
 [ * 383 ] minister of the * United States at Paris, notifying that some 
 
 sort of revocatioa of the French decrees had taken place, 
 and that they were to cease to be effective from the 1st November in 
 that year.i The United States were content to accept this as an au- 
 thentic and sufficient revocation, and repealed their non-intercoursaict 
 as against France, continuing it as against Great Britain, which nad 
 not considered this repeal as authentic upon any evidence of its exist- 
 ence which had been furnished, and of course had declined to with- 
 draw its retaliatory orders. In the month of May, 1811, this court 
 condemned the American ship Fox, and several other ships and car- 
 goes, on the ground of a total absence of all satisfactory proof that 
 the French decrees had been authentically repealed. 
 
 On the 10th March,^ in the present year, the French ruler published 
 an official report of his minister of foreign relations, proclaiming the 
 continued and successful operation of his decrees. On the 21st April ^ 
 the British government published a declaration, the effect of which I 
 may hereafter more particularly state, but generally authorizing this 
 
 1 Appendix O. ^ Appendix P. 3 Appendix Q. 
 
HIGH COURT OF ADMIRALTY. 384 
 
 The Snipe, and others. Edw. 
 
 court to receive evidence from any foreign claimants of the repeal of 
 the French edicts, and to decree restitution thereon. On the 20th 
 May, the British government received from Mr. Russel, the American 
 resident at this court, a paper bearing date 28th April, 1811,^ and pur- 
 porting (as he described it) to be a decree repealing the Berlin and 
 Milan decrees so far as concerned American vessels. On the 23d 
 June, this government issued a declaration, signifying that American 
 vessels, captured after 20th May, (the date of that communication,) 
 should not be proceeded against to condemnation, but only detained 
 till certain contemplated events should determine what 
 further course ought to be taken respecting * them. With [*384 ] 
 respect to those captured before the 20th May it is silent ; 
 they can claim no special benefit from this proclamation. If they 
 can entitle themselves to restitution, it must be by proof given under 
 the order of April last, that the French decrees were actually then 
 repealed, in which case the court is authorized to restore, without any 
 further declaration on the part of the British government. When I 
 say repealed, I of course mean repealed in such a manner, and with 
 such formalities, as to impose upon other states an obligation of 
 noticing and respecting such repeal. And Great Britain, the adverse 
 belligerent, has a right to scrutinize the procedure in the strictest 
 and most inquisitive manner ; because not only is it the act of its 
 enemy, to which on that account less faith is due, but because it 
 affects to repeal a measure which was established in its professed 
 origin as a measure of destructive hostility against this country. I 
 have likewise to recollect, that the proofs in this case must come 
 from the claimants almost exclusively, for they must come from the 
 enemy's country, which to the captors is inaccessible for any purpose, 
 and particularly for that of procuring correct information. The 
 claimants have been the parties in the transactions ; they must be 
 perfectly conusant of the facts ; and if that which might and ought 
 to have been established with certainty is left a matter of doubt, the con- 
 sequences will press upon those who have so left it. The burden lies, 
 therefore, with great responsibility upon them to show that upon the 
 fair result of these transactions, and of the several attendant docu- 
 ments which they have produced, the question of the title of this 
 vessel, and perhaps others, to restitution, is fairly established. 
 
 * In examining this question, I have to observe, that the [ * 385 ] 
 Berlin and Milan decrees of France were ushered into the 
 world with all the solemnity requisite to attract the notice of those 
 
 1 Appendix O. 
 EDW. 23 
 
386 CASES DETERMINED IN THE 
 
 The Snipe, and others. Edw. 
 
 that were to be in any degree affected by them, — that is, of the 
 whole civilized world in the different characters of allies, neutrals, and 
 belligerents. They were published in the Moniteur, and other official 
 papers of France. No man who had access to the common vehicles 
 of information could have a doubt of their existence. The interpre- 
 tation of them might, in many particular respects, be a subject of 
 dispute ; but no man could call into controversy their authenticity, 
 their date, or their time of operation. As far as such particulars are 
 required to be established by any rules, either of abstract justice, or 
 of the conventional law of nations, or of ordinary diplomatic usage, 
 there is nothing to be complained of in these decrees. These decrees, 
 both in their original text and by many subsequent declarations, (one 
 so late as March of the present year,) are declared to be fundamental 
 laws of the French empire. The meaning of this character so 
 assigned, is not perhaps easy to fix with precision. By fundamental 
 laws (in the meaning of writers on public law, Grotius, Pufendorf, 
 and others) are usually meant such laws as are supposed to be so 
 deeply interwoven in the political constitution of the state, as to be 
 above the reach of even the sovereign power to alter. Such a supre- 
 macy of the ],aw above the power of legislation, if it exists anywhere, 
 could not well be intended here; but it is fairly to be understood, (if 
 it carries any meaning at all,) that a peculiar character of firmness 
 and sanctity is impressed upon these laws ; that France considers 
 them as founded upon principles of policy from which she will not 
 lightly depart ; and the only cases in which she would be induced to 
 
 depart from them, are specified in the Milan decree to be 
 [ * 386 ] two. One, * when Great Britain revoked those particular 
 
 maxims and usages of war which France affects to repro- 
 bate ; the other, when neutral nations compel Great Britain to respect 
 their flags. The former event requires no explanation ; the other is 
 of less definite meaning : but the general understanding of the world, 
 as guided by the comments occasionally furnished by France, had 
 fixed its signification to be, when measures had been taken with 
 effect, by a neutral state, to compel Great Britain to exempt it from 
 the exercise of what she is in the habit of describing as her maritime 
 rights. 
 
 In this form were those decrees given to the world at large, with 
 all the evidence of the most studied notoriety, — enforced and pro- 
 tected by such declarations, — incorporated by France into the body 
 of her laws, with this special character imposed upon them, and ex- 
 pressly handed over for execution to every minister of that govern- 
 ment who could have any share in the application of them. Since 
 that time, not contented with her own execution of these laws, she 
 has been pressing the execution of them upon her allies, by remon- 
 
HIGH COURT OF ADMIRALTY. 387 
 
 The Snipe, and others. Edw. 
 
 strance, by authority, by force. She has subverted commonwealths 
 and kingdoms to enforce their execution ; and if the causes of a war 
 lately commenced are at all known, it is known that the refusal of a 
 great northern state to concur with sufficient activity in the execution 
 of these measures, is in the number of those causes. 
 
 Now, in the case of decrees so promulgated and protected, it might 
 reasonably be expected, upon every principle of reason, of good faith, 
 and of honest policy, that if a revocation of any kind did take place, 
 it should be notified in such a manner as to leave no doubt whatever 
 of the fact. It is requisite for the most ordinary exercise of legisla- 
 tion that it should be published to all whom it concerned. 
 This is one of the most "elementary principles respecting [ *387 ] 
 every thing in the nature of law. A variety of authorities, 
 collected and cited with much learned industry by Dr. Stoddart, con- 
 cur in establishing the well-known maxim that decretum non obligat 
 sed promulgaiio. It is unnecessary to add, that such a publication 
 must be authentic, that is, that it must come in such a shape as not 
 to convict itself of fallacy and fraud, because the effect of fraud is to 
 destroy all credit. It is the just fate of him who uses it that eliam 
 cum verum dicet amittit fidem. It must likewise be intelligible and 
 clear, for if it is wrapped in obscurity it ceases to be a publication. 
 If these are requisites indispensable in ordinary cases, much more are 
 they so in a professed revocation of a measure to which the attention 
 of the world has been so much called, both in its origin and progress, 
 where so many important interests depended upon the certainty and 
 truth of the revocation, and where no one event had occurred that 
 could lead any man's mind to a conjecture that any such revocation 
 was to take place. For things had continued exactly in the same 
 state ; Great Britain persisted in the ordinary exercise of her mari- 
 time rights, together with that of her retaliatory measures superin- 
 duced upon them. No country had compelled her to respect their, 
 flag in the sense which I have ventured to attribute to that expres- 
 sion, when the person styled Due de Cadore wrote a letter, dated 5th 
 August, 1810, to the American minister at Paris. 
 
 That letter (as far as the present subject is concerned) is in these 
 terms : " I am authorized to 'declare that the Berlin and Milan decrees 
 are revoked," — (not will be revoked,) — "and will cease to have their 
 effect from the 1st November." ^ Words cannot be more 
 general, more unconditional, than this assertion. The *as- [*388 ] 
 sertion is of a revocation universal, and a revocation abso- 
 lute ; but unfortunately these expressions follow : " It being well 
 
 Appendix O. 
 
389 CASES DETERMINED IN THE 
 
 The Snipe, and others. Edw. 
 
 understood" (it is not said by whom or on what grounds) "that the 
 English shall revoke their orders in council, and renounce their new 
 principles of blockade, or that the United States will cause their 
 rights to be respected by the English!" How is this clause to be 
 construed ? Is it to be considered as constituting part of the decree 
 of revocation, or merely as an exposition of the motives and expecta- 
 tions, and understandings (bien entendu) of those who revoke, and 
 not constituting any part of the revocatory decree ? If the former, it 
 converts the absolute decree into a conditional one. It likewise 
 appears to convert the general decree into a partial one limited to 
 the Americans ; for it is their particular conduct that is referred to. 
 , In order to ascertain the real nature and meaning of the passage, 
 recourse must be had to the decree of revocation itself; for it is 
 quite impossible to apply a definite meaning to this letter so framed. 
 Instead of being clear and definite, — all precision, as it has been 
 described, — it is altogether obscure, involved, and contradictory. 
 Under such qualifications, it cannot be considered as the decree of 
 revocation itself, even if all the objections which arise from its non- 
 conformity to all reason»Me usage belonging to such a subject could 
 be waived. Of course, therefore, a demand was made at the time, 
 and has been many times repeated, for the production of the instru- 
 ment of revocation ; which, however, has never yet been produced. 
 This country has denied, on the ground of the non-production, the 
 existence of any such revocation, no decree or other authentic docu- 
 ment having been produced. The reasonableness of this demand 
 
 and denial, seems to be sufficiently admitted by the act of 
 [ * 389 ] France now set up : for * what is it ? The production of an 
 
 asserted decree of revocation, thereby admitting that a de- 
 cree is the proper form of revocation ; and admitting, likewise, in my 
 apprehension, that no such decree existed, as the person designated 
 Due de Cadore, referred to ; because there cannot be a doubt that if 
 it had, France would have founded herself in her present pretension 
 upon that, and not upon the decree now produced of a much posterior 
 date. 
 
 In this state of things, what was the natural conduct of a govern- 
 ment acting with fair and honest purposes ? Here was a revocation 
 held out as a boon to America, the existence of which was denied. 
 Could the party refuse, in such a case, the necessary means of prov- 
 ing its existence ? If it existed, and to any practical effect, the neu- 
 tral state had a right to its production. It was a document requisite 
 for the secure enjoyment of the privileges it affected to convey to the 
 neutral, not only in France, but in all the dependent states upon 
 which she had forced her policy. It was still further necessary, in 
 order to entitle the Americans to the benefit of a relaxation on the 
 
HIGH COURT OF ADMIEALTY. 390 
 
 The Snipe, and others. Edw. 
 
 part of Great Britain. For it was notorious that Great Britain was 
 pledged to America for a repeal of her prohibitions as soon as it was 
 shown that France had done the like. To leave a doubt, therefore, 
 and a fair doubt, upon the fact of revocation, was a direct fraud upon 
 America, with respect, at least, to a very large proportion of the 
 advantages she was entitled to. Even if no such edict had originally 
 existed, if the matter had passed in the slovenly and informal mode 
 of this strange le^tter of Monsieur Champagny, and in no other, still 
 she ought to have passed and published an edict immediately, if 
 found necessary, for the satisfaction and security of America. If it 
 existed, nothing could be more easy than to produce it. It 
 *must have existed in a hundred quarters; in the public [*390 ] 
 records, in instructions to cruisers, in notifications and orders 
 to the prize courts, in a series of restitutions uniformly made under 
 its authority. But no trace of it is to be discovered in any of these 
 quarters. No industry of the American claimants, assisted by the 
 zealous importu'nity of their government, has been able to extract any 
 such instrument. When the case of The Fox, with several others, 
 came on here in May, 1811, no other revocation was set up, but that 
 assertion of Monsieur Champagny, styled the Due de Cadore, backed 
 by one solitary obscure case of The Orleans Packet, as naked of 
 authority as it appeared to be of circumstances. It was urged, in 
 that case, that the American government had been content to act 
 upon it. The court had only to observe, that the authority of the 
 American government completely bound its own subjects by its con- 
 struction of that letter, but did not at all bind this court ; and that 
 this court could not judicially arrive at any such conclusion. It has 
 been made matter of some slight observation, that the court did, upon 
 that occasion, indulge the claimants, at their own earnest solicitation, 
 and upon repeated assurances that the American resident expected 
 despatches which would put the matter out of all doubt, with time to 
 bring forward such communications, requiring only that they should 
 come through the regular channel of its own government. If the 
 court can be thought to have exceeded its powers in this indulgence, 
 it iiertainly was prompted to do so by the hope that if any such de- 
 spatches did arrive, and did pass through the hands of the British 
 government, they would have produced an immediate revo- 
 cation of the British orders. *It could have little doubt that [ *391 ] 
 the evidence which was sufficient to satisfy the judicial con- 
 science of the court, would be quite enough to satisfy the expecta- 
 tions of the British government. 
 
 Since that time many condemnations have passed here under the 
 subsisting orders, — one or two before the Lords of Appeal. But no 
 
 23* 
 
392 CASES DETERMINED IN THE 
 
 The Snipe, and others. Edw. 
 
 allusion has been yet made to any known act of French revocation. 
 This subject has given rise to a great deal of political controversy 
 between the respective governments. Upon the 8th of May, 1811, 
 Mr. Russel declares, "that no ship captured since the 1st of Novem- 
 ber, had either been released or brought to trial." i Now, I ask, if 
 there had been any admitted existing revocation, how could this pos- 
 sibly have happened ? Its existence must have been known to all 
 persons concerned either in enforcing it or claiming the benefit of it. 
 How could The Orleans Packet have been seized expressly under 
 these decrees,^ as Mr. Russel asserts, in December, 1810, by the director 
 of the customs of Bordeaux, if these decrees had been notoriously 
 repealed from the 1st November. What must have been the conduct 
 of the American master under such an injury ? An instant demand 
 of restitution, with costs and damages from the tribunals. Could the 
 tribunals have resisted such a demand ? She had actually come into 
 the French ports upon the faith of that letter, which the supercargo 
 had read at Gibraltar. I ask what must be the conduct of this court, 
 if months after the repeal of the orders in council, the comptroller of 
 the customs at Liverpool, or any other great port in this kingdom, 
 were to seize a vessel under those orders ? Could a grosser calumny 
 
 be suggested, than that this court would not order instant 
 [ * 392 ] restitution, with as heavy * costs and damages as it could 
 
 inflict upon the seizor ? Could such an injury have remained 
 unredressed for a week, if it could by any possibility have been com- 
 mitted ? What advice would the seizor have received from the law- 
 officers of the crown, but to get out of such a scrape as fast as he 
 could, Vel prece vel pretio ? What advice would the American 
 claimant have received from any practiser in this court to whom he 
 might have applied ? Why, to demand costs and damages, and not 
 to take back his ship without such compensation. That any remon- 
 strance to government should have been requisite, any application 
 depending there for a 6onsiderable time, and the property restored 
 more than a month afterwards on bond to stand adjudication, on a 
 subject which Mr. Russel justly describes in terms to be "an act 
 ostensibly proving the continued operation of the decrees,"^ and that 
 bond not given up till the month of July, 1811, by an act of the state, 
 exercising its prerogative, and not by any act of the tribunals, execut- 
 ing a known law, are a series of facts which prove decisively two 
 things ; one, that the Due de Cadore's letter was not, in itself, a revo- 
 cation of the French decrees ; and, secondly, that no other revocation 
 was publicly known. 
 
 • Appendix V. "Appendix S. ' Appendix X. 
 
HIGH COURT OF ADMIRALTY. 393 
 
 The Snipe, and others. Edw. 
 
 In the month of March, 1812, the French government published an 
 official report^ of the minister of foreign relations^ the Due de Bas- 
 sano, as he is styled, announcing the actual existence and the con- 
 tinued successful operation of these decrees for the last fifteen months ; 
 and, as far as can be inferred from mere silence respecting America, 
 an unlimited operation, for there is not the slightest recognition of 
 the American exemption, and the terms are as broad and 
 as comprehensive as could have been employed if no * such [ * 393 ] 
 exemption had ever existed. It was peculiarly necessary to 
 have adverted to such an exemption, under the doubts that notori- 
 ously prevailed respecting it, and the more particularly as America 
 had now become the most considerable power, and, according to 
 some of the arguments offered on behalf of the claimants, the only 
 power to which such a decree could apply. Under this extraordinary 
 silence, accompanied with the known fact that captures continued to 
 be made, that none were proved to be restored by any act of law, that 
 no document had been produced, though repeatedly required by Ame- 
 rica in aid of justice, the British government issued a declaration, 
 dated 21st April, 1812, in which it assumed that no revocation had 
 yet taken place, but declared that it would permit foreign claimants 
 of ships and cargoes to give evidence that these decrees had been 
 absolutely and unconditionally repealed before their capture, by some 
 authentic act of the French government publicly promulgated, and to 
 claim the restitution of them without further order on its part. By 
 this declaration the government devolved upon the court the painful 
 office of ascertaining the fact of a repeal so qualified, amidst all the 
 obscurity in which the fluctuating practice in the conduct, and the 
 studied ambiguity in the language, of the French government, might 
 choose to involve it. The court, which had before required that it 
 should be authentically informed of the repeal, with the expectation 
 that such intelligence from the British government would come accom- 
 panied with a revocation of its own correspondent orders, was now 
 empowered to receive evidence directly from the claimants, without 
 any formal transmission through the hands of the govern- 
 ment itself. All that was now required being, * that the [ * 394 ] 
 information should be conveyed to the court in such a form 
 as courts of justice are in the habit of receiving on the known princi- 
 ples of legal evidence. 
 
 This declaration was followed by a communication made by the 
 American minister in this country to the government, on the 20th 
 
 ^ Appendix P. 
 
395 CASES DETERMINED IN THE 
 
 The Snipe, and others. Edw. 
 
 May last,^ of an instrument which he described to be "the copy of a 
 decree, purporting to be passed by the Emperor of the French on the 
 28th day of April, 1811," declaring the French decrees to be non- 
 avenues from the 1st November, 1810, with respect to American 
 ships. As it is important to look at the meaning of terms employed 
 in an instrument which claims such a character, I am not afraid of 
 the censure of having viewed them with any hypercritical attention, 
 when I say that I have thought it necessary to look for the interpre- 
 tation of these words, which are not either diplomatic or judicial 
 words, in dictionaries of the best authority of that country, particu- 
 larly in the Dictionaire de L'Acadeniie; and I there find that the 
 only sense attributed to avenir is arriver par accident. So that 
 according to this explanation, the word avenue, if applied with pro- 
 priety, must mean, not having accidentally happened from the first of 
 November, which appears to be somewhat of an extraordinary mode 
 of describing a positive repeal by an act of state of something that 
 was existing before. Upon the 23d June following, this communica- 
 tion,2 which was made as soon as the British government resumed its 
 functions after a calamitous event that had in a great measure sus- 
 pended them, it declared a repeal of its orders to take place from the 
 20th May, leaving those vessels which had been taken be- 
 [ * 395 ] fore to the general operation of the law, * and of such edicts 
 as it had previously published in conformity to it ; but, cer- 
 tainly without recognizing, in any manner, the authenticity of this 
 instrument, for the British declaration sets out with describing it as 
 an instrument purporting to be a decree. It nowhere describes it as 
 a decree, — the "instrument," referenda to the first description, is the 
 term employed throughout, and though his Majesty is content to sus- 
 pend the full operation of the order in council from the date of this 
 communication, it is upon no waiver of any objections to it, but 
 avowedly upon his desire to reestablish the friendly intercourse of 
 nations. 
 
 This instrument^ being propounded as a decree of repeal on the 
 part of the French government, it becomes my duty to examine 
 whether this is a decree satisfying the requisites contained in the 
 order 21st April. It has been made a question, whether it is not one 
 of those requisites that the French repeal shall be subsequent to the 
 21st April, as has been strongly contended by Dr. Adams ; whether 
 this is a condition literally binding upon the court ; and whether, by 
 its powers of just interpretation, looking to the spirit of the declara- 
 
 ■ Appendix O. '' Appendix Q. » Appendix O. 
 
HIGH COUET OF ADMIRALTY, 396 
 
 The Snipe, and others. Edw. 
 
 tion, or by any of its general powers independent of the declaration, 
 it could apply a repeal which satisfied all other requisites, without 
 satisfying this requisite, if it is so to be considered. I shall not enter 
 into this question, because, in the view of the court, a decision of the 
 principal point can be obtained without particularly considering it. 
 The other requisites are free from all question either of justice or 
 authority, being, in truth, no other than such as the court would have 
 prescribed to itself, if no order whatever had prescribed them. The 
 repeal must be authentic, or it is a nullity ; it must be pub- 
 licly * promulgated, or it has no legal existence ; it must be [ *396 ] 
 absolute, because, if partial, it may be still more injurious 
 to the just rights of the other belligerents than the general prohibi- 
 tion. It never can be admitted, that in a war of general prohibitions 
 between two belligerent states, one shall have a right to carve out its 
 own exemptions for its own particular convenience, and call upon the 
 other to respect them. It must be unconditional for a similar reason ; 
 for the conditions imposed may be only aggravations of the original 
 wrong. A repeal, for instance, on condition of a declaration of war, 
 would be more mischievous than the mere general prohibition of 
 commerce. These are requisites not founded in fleeting policy, or in 
 occasional interests, but in universal and immutable justice ; the 
 same to-day as yesterday.; the same at Stockholm as at London, all 
 other circumstances being the same. And with respect to the power 
 of the court as to these requisites, it is an idle subject of discussion, 
 in a case where both justice and authority unite in conferring them. 
 
 The authenticity of the instrument is the first point ; that, indeed, 
 on which all the others depend, because, if not authentic, all other 
 questions fall to the ground. It is the title-deed under which the 
 parties claim ; they must prove it authentic ; till that is done, nothing 
 is done ; if its authenticity is disproved, nothing can be done. 
 
 Now, in the first place, what is meant by its being authentic ? By 
 authentic is to be understood every thing that is requisite to give 
 authority. It implies internal good faith and truth, and external legi- 
 timacy. In the latter sense, it must proceed from the authority it 
 lays claim to. It must be genuine, — not spurious^ — as the act of 
 that authority ; but that is not enough. It must appear to 
 possess internal good faith and truth ; *it must not be stained [ *397 ] 
 with evident falsehood and fallacy ; for, on defects of that 
 kind, it will lose its authenticity. Those on whom the fraud and 
 fallacy are intended to operate have a right to repudiate it altogether, 
 as of no authority whatever. 
 
 Whether this paper is authentic in the first sense and meaning of 
 the word, as an act of the French government, depends much upon 
 
398 CASES DETERMINED IN THE 
 
 The Snipe, and others. Edw. 
 
 the fact that it has been delivered as purporting to be such by the 
 American riiinister. The usual mode of authenticating the acts of a 
 government, is by a general publication avowed, or, at least, not con- 
 tradicted by the government whose name it bears. So authenticated 
 it proves itself. This document has not, that I know of, appeared in 
 any solemn and public enunciation, recognizing its character ; it has 
 not appeared in any oiiicial paper of the government of France ; nor 
 in any communication to any other government in the world, although 
 almost every other government was interested in it. The American 
 minister does not state from whom he received it,^ nor when he 
 received it ; omissions rather to be lamented in a case where dates 
 of time, and the vehicles of communication, are circumstances of so 
 much importance. I observe, that neither this person styled Due de 
 Bassano, nor Mr. Barlow, date their verificati9n of the copy, though 
 Mr. Hamilton, the British under-secretary of state, dates his verifica- 
 tion on the 3d of last month. Now, I must say, that if this court 
 accepts it as a genuine instrument under such circumstances, it is 
 very much upon the respect due to the opinion of Mr. Russel, though 
 that opinion is expressed with the caution that accompanies it. As- 
 suming, however, that it is to be received as the act of the 
 [ * 398 ] French government, it remains to be ' seen how far other- 
 wise it is authenticated, as far as its character of truth and 
 good faith is concerned. 
 
 The first matter that attracts notice is its date. It attributes to 
 itself to have been executed on the 28th of April, 1811. The date of 
 such an instrument is of the first importance in support of its claim 
 to veracity and good faith ; destroy the date of an instrument, show 
 that it is false, without its falsehood being referable to mere error, or 
 explained satisfactorily as such, and you falsify the instrument in toto. 
 It is a falsification of a fatal kind, particularly where time is con- 
 cerned. It is a gross deception, and a deception which can have been 
 practised only for purposes of fraud ; no part of an instrument so dis- 
 honored can claim an honest attention from any person against whom 
 the fraud is intended. 
 
 Now, that this instrument did not exist at the time of its date, or 
 for twelve months after, is established to my satisfaction, by a demon- 
 stration that excludes all doubt. Because, if it had been then executed, 
 nothing can be more clear than that it must have been produced; yet 
 where is the person who ventures to assert any knowledge of it before 
 the 20th of May, 1812. Every motive of just and honorable policy 
 
 Appendix 0. 
 
HIGH COURT OF ADMIRALTY. 399 
 
 .The Snipe, and others. Edw. 
 
 called upon France to produce it without hesitation. It was due to 
 the Americans, whose property was .every day confiscated in England 
 and sequestered in France on the failure of its production. "What 
 motive of just policy could induce any reserve about it. America 
 was to be conciliated by its production, and Great Britain was to 
 acquire no new privilege, unless she followed the example. The ruler 
 of France was, therefore, called upon by every motive that could 
 influence an honest and an honorable mind to produce it if 
 it had existed. *If it had been known to the American [*399 ] 
 minister at Paris, there can be no doubt that he would not 
 have kept it back under the pressure of so much public duty and so 
 much forcible application. Equally clear is it that it was totally un- 
 known to the American government ; for never, till this time, has it 
 been in the remotest manner alluded to in the warm intercourse of 
 controversy that has taken place between the two countries. "What 
 is the proof that at this moment is known to the American govern- 
 ment ? It appears most clearly, that the long correspondence be- 
 tween that government and the British representative, Mr. Forster, 
 consisted very much in demands for the production of some such 
 instrument on the one side, and of reasons assigned for not producing 
 it on the other ; but such reasons as nowhere indicate that the Ame- 
 rican government were ever in the possession or ^knowledge of any 
 such instrument. In all probability it is now upon its transatlantic 
 passage. Nor is it less clear that it was totally unknown to the tri- 
 bunals of France, for, independent of the affirmative evidence of Mr. 
 Russel, that no such order had reached him in May, "1811, there can 
 be no doubt that if it had, it must have disclosed itself in the discus- 
 sions and decisions of those tribunals. It has been said by Dr. Arnold, 
 Ihat it is enough if the order is known to the courts. Most certainly 
 not ; because it is equally necessary to be known to all who are enti- 
 tled to the benefit of it. Orders are sometimes published in the form 
 of instructions to this court, but then they are accessible to all ; to 
 captors, to claimants, and to every person they employ ; as notorious 
 to such persons as to the court itself; equally so to the public at Idfge. 
 Is it a matter of any difficulty for any man to possess him- 
 self * of all the instructions that have been issued during the [ *400 ] 
 whole of this war ? Give the French tribunals all the dishonest 
 secrecy you please ; you can never suppose a state of things in which 
 they were dealing out restrictions every day without its being at all 
 known to the astonished claimants who received them, that this was 
 all in consequence of a repeal of the grand decrees \vhich had ordered 
 the confiscation. "Were the cruisers all this time left without a know- 
 ledge of the revocation which was to control the seizures that had 
 
401 CASES DETERMINED IN THE 
 
 The Snipe, and others. Edw.' 
 
 been authorized ? To suppose a secrecy, and a mystery, and a clan- 
 destinity, and a doubt, on such a subject, is more intelligibly and con- 
 sistently expressed by describing it at once as a system of studied 
 artifice and fraud throughout. 
 
 I should do great injustice to the conduct of Mr. Russel, — to his 
 acknowledged attention to the duties of his important office, — if I 
 referred his entire silence with respect to the existence of such an 
 instrument, up to the 20th of May last, to any other cause than his 
 total ignorance of its existence. He was resident in France at the 
 time it bears date, attentive to all the transactions in which the inte- 
 rests of his government were concerned ; he resided there many 
 months afterwards. No reference was made to any such document 
 during his residence, as far as appears in any answer to the pressing 
 inquiries of the American minister here, for the purpose either of pro- 
 curing a formal repeal of the order in council, or the restitution of the 
 American property brought into our ports. On the 8th May, 1811, 
 he gives an account of a very extraordinary case on the part of the 
 
 American master of the ship Grace Ann Green, who, in a 
 [ *401 ] most atrocious manner, (for so this court in support *of the 
 
 law of nations is bound to describe it,) had risen upon his 
 British captors, rescued his ship by violence from them, carried her 
 into a French porf, and there delivered up nine Englishmen prisoners 
 of war to the enemy, to whom he pleaded all these exploits as matter 
 of special merit, which ought to exempt him from the operation of the 
 Berlin and Milan decrees. If these decrees were extinct at that time, 
 there could have been no occasion to plead such extraordinary merits, 
 and the plea could not have been received for any such purpose. 
 But Mr. Russel writes that he -^vas liberated, and he cannot tell, 
 whether on a general revocation, or on a special exemption from 
 those decrees." A special exemption ! how, a special exemption from 
 decrees, which, according to this paper, had had no existence from 
 the 1st November, 1810, and which his own country had not only 
 declared in terms to be extinct, but had acted upon the declared ex- 
 tinCTion in the most formal and decisive manner, and had censured 
 and punished the tardiness of this country in not doing the like. Mr. 
 Russel comes to this country in September, 1811, and it is not till 
 May, 1812, that this asserted decree of revocation is produced, under 
 all the stimulating motives which his known zeal for the public ser- 
 vice and the private interests confided to his protection furnished for 
 producing it upon occasions that were occurring every day. When 
 finally produced, no explanation is given of the time when it was 
 received, but it is delivered with evident intimations of distrust ; for 
 I cannot but allow great weight to the observation of Dr. Adams, 
 
HIGH COURT OF ADMIRALTY. 402 
 
 ( 
 
 The Snipe, and others. Edw. 
 
 that Mr. Russel distinguishes most studiously between this instru- 
 ment and the two letters that accompany it, by describing them, as 
 they are, letters, and with the dates actually belonging to 
 *thera, and this as the copy of a decree that purports to [*402 ] 
 have been passed on such a day. 
 
 Taking all this evidence, (and much more might be adduced,) as 
 resulting from the conduct of the French government, viewed in 
 every possible direction ; from that of the American government and 
 its representatives; from that of the French tribunals; — in short, 
 from that of every moral agent whose conduct could be at all con- 
 nected with this paper ; — it results that this paper never appeared till 
 about twelve months after it bears date, and that it did not appear, 
 because, in truth, it did not physically exist. But suppose, for a mo- 
 ment, that it was really executed at the time it bears date, would that 
 give it a legal existence till it was actually promulged ? Certainly 
 not; in all reason and in all practice such an instrument operates 
 only from the date of its promulgation. If accident has delayed for 
 a great length of time the publication, it ought to be reexecuted, and 
 with a reference to the real time of its promulgation ; or it should be 
 issued with an explanation of the causes that have deferred it, and 
 pointing to the time of its real operation. But, if it be sent into the 
 world with its antiquated date, claiming the authority of that date, 
 and of that date only, it has either that authority or it has none. 
 That authority it cannot have, and it is just as deficient in point of 
 honest claim as if the execution had taken place in the fraudulent 
 mode of an antedated instrument. In either way, I should depart 
 from the sobriety of judicial language, if I described it in the terms, 
 that in my apprehension, belong to it. It is one other instance of the 
 exorbitant demand which that person is in the habit of making upon 
 the credulity of mankind. It is sufficient to observe, that in 
 my judgment, *its authority is fully disproved ; that it comes [ *403 ] 
 into the world with such indisputable characters of false- 
 hood as utterly to destroy its operative credit. I have no doubt that 
 the true conclusion arising from the course of facts is, that this paper 
 owes its birth to the British declaration of the 21st April, 1812 ; that 
 it is a later production of this same year, and that it claims an earlier 
 origin only for such purposes as it is the duty of all courts of justice 
 to defeat. 
 
 If this conclusion be just, it follows that all attempts to prove the 
 operation of such a document must fail, because it is impossible to 
 prove the operation of a document which did not exist. If you even 
 proved, in some instances, a course of practice similar to that which 
 the document holds out, it would by no means establish the existence 
 
 EDW. -(24 
 
404 CASES DETERMINED IN THE 
 
 The Snipe, and others. Edw. 
 
 of such a document, because such a practice might take place inde- 
 pendently of any sUch document. It likewise appears to follow, that 
 the court cannot make the order prayed, for further proof, because, 
 if it is once established that the document is born with such a stain 
 of corruption in its very essence and constitution, it is out of the 
 reach of any purifying means that can be applied to it ; and least of 
 all of such as are to be applied by those to whom it owes that vicious 
 essence and constitution. They who fabricate such an instrument 
 will fabricate the means of supporting it, and this court does not, 
 w^here imposition is intended upon itself, resort for proofs of good 
 faith to the officina fraudis which attempted the imposition. 
 
 In the next place, what are the auxiliary proofs that are now offered 
 as to matter of fact ? There are two letters ^ which do not at all refer 
 to this paper, being both prior in date ; one of them, the letter to the 
 Conseil des Prises, suspensive upon the future fact of the 
 [ *404 ] * Americans causing their rights to be respected by England ; 
 letters which, though published and known months ago, 
 have never been brought forward in any of the cases that have been 
 before the court as founding any title to restitution ; and which com- 
 pletely falsify the letter of the Due de Cadore, because, instead of 
 enjoining the French cruisers not to molest American ships and ves- 
 sels, they expressly provide for the case of their detention subsequent 
 to the 1st of November, the day on which they profess to revoke ; — 
 letters which are completely disproved by the letter of Mr. Russel, of 
 May, 1811, in which he declares that "no American ship, taken since 
 1st November, had, at that time, either been released or brought to 
 trial." 
 
 There have been cases offered, in a paper described to come from 
 the American minister at Paris ; and it is, therefore, necessary for me 
 to advert a little to the evidence resulting from that paper, and parti- 
 cularly with respect to the cases referred to in them. They are intro- 
 duced by an affidavit, for which the court is indebted to the conde- 
 scension of Mr. Russel. He states, in the affidavit, upon which I 
 should, from motives of respect, be very cautious of dropping any 
 particular observation that does not necessarily arise, "that during 
 the time of his residence in France, he verily believes that no Ameri- 
 can vessel or cargo was condemned." I will first observe, that in 
 this affidavit no notice is taken whatever of this revocation, dated 
 April, 1811, no additional verification is thrown in, though I presume 
 it could be no secret what were the doubts that had been expressed 
 
 Appendix 0. 
 
HIGH COURT OF ADMIRALTY. 405 
 
 The Snipe, and others., Edw. 
 
 with respect to the authenticity of that paper^ in the course of the dis- 
 cussions which had here taken place.^ I have likewise to 
 observe, that in the letters of * Mr. Barlow, which come [*405 ] 
 down so late as 2d March, 1812, there is the same prudent 
 silence observed with respect to the existence of this document ; no 
 reference to it whatever being made in any form of words that I can 
 find in these letters. Mr. Russel states, that "during the time of his 
 residence in France, he verily believes that no American vessel or 
 cargo was condemned for a violation of the Berlin or Milan decrees, 
 which had been captured after the 1st November, 1810 ; and he be- 
 lieves that such a condemnation could not have taken place without 
 information thereof having reached him." Here, therefore, is no de- 
 claration of a fact, but a declaration of an opinion or belief, and an 
 opinion or belief founded upon another belief, that if such condemna- 
 tions had taken place, they must have travelled to the knowledge of 
 Mr. Russel. Now, I ask, if the fact had been clear and certain that 
 a repeal had passed, whether it is possible that this would have been 
 the form of words in which Mr. Russel would have expressed himself. 
 Supposing the fact to be, that a repeal had passed in this country of 
 the orders in council, could it have been a matter of doubt? would it 
 have been merely a subject of belief? would it not have been a fact 
 to be ascertained without trouble, with the most absolute and most 
 complete notoriety ? If such an order had been issued to this court, 
 and it had been required from Mr. Russel, on the part of his own 
 government, or on the part of any of its citizens whose interests were 
 confided to his care, to ascertain the fact that such an instrument 
 had been issued to the court, could it have been a business of an 
 hour's labor to have procured a copy of that document, to have had 
 it established in the most authentic manner, and to have communi- 
 cated it, not in the form of a reasoning belief founded upon 
 a belief, but in the form *of a direct and authenticated as- [ *406 ] 
 sertion of the fact. The very form in which Mr. Russel has 
 deposed to the fact is, I think, the strongest proof that it is not a fact 
 upon which a very considerable degree of doubt is not reasonably to 
 be felt. Mr. Russel states, "that several cases have come to his 
 knowledge, in which restitutions have been decreed to the claimants, 
 although the vessel would have been liable to condemnation under 
 the Berlin and Milan decrees," but without stating any particular 
 cases. Here are no copies of the decrees of the courts before whom 
 those cases were brought, nor, indeed, any assertion that the restitu- 
 
 Appendix U. ^ This affidavit was brought in after the principal argument. 
 
407 CASES DETERMINED IN THE 
 
 The Snipe, and others. Edw. 
 
 tions were made by the authority of the courts, — that they were not 
 made by the authority of the state itself. This is the whole of the 
 information that Mr. Russel, upon his own knowledge, and from his 
 own belief, conveys to the court. 
 
 With respect to what has passed since the month of September, 
 when Mr. Barlow succeeded him in the mission, he says, "that he 
 has been informed by the American minister resident at Paris, that 
 there has not been an instance of the application of the Berlin and 
 Milan decrees to an American vessel or cargo since the month of 
 September ; that many vessels and cargoes had been restored to the 
 lawful owners thereof, which would have violated those decrees had 
 they been in force ; that he has no doubt that more specific informa- 
 tion, as to cases restored in the French courts of prize, might be pro- 
 cured from the records of the said proceedings ;" on which assertion, 
 undoubtedly, the question arises, why such information has not been 
 procured ? because, it being perfectly well known that it has been a 
 question long depending, whethei: this was a law promulgated to the 
 courts, and which the courts were bound to carry into exe- 
 [ *407 ] cution, *it certainly was the natural duty of the claimants 
 to have provided themselves with the most indubitable 
 proofs, showing these restitutions had taken place. This assertion of 
 Mr. Russel destroys the supposition of Dr. Lushington, that no more 
 authentic proofs could be obtained, because it is admitted by Mr. 
 Russel, in this assertion, that there is no doubt whatever that, if fur- 
 ther time were allowed, more specific proof of the proceedings of the 
 courts might have been produced. 
 
 I come now to consider the particular cases mentioned in the let- 
 ters, because, giving to the general averment of Mr. Barlow all the 
 respect due to this assertions of an accredited minister upon such a 
 subject, residing at another court, it still remains my duty to consider 
 what are the special cases he has produced in support of them, inas- 
 much as those cases may tend to show upon what grounds this general 
 averment has been constructed, and how far the statement it contains 
 has been accurately extracted from such premises. In the letter bear- 
 ing date 29th January, of the present year, he mentions this case : 
 " The ship Acastus, Captain Cottle, from Norfolk, bound to Tonnin- 
 gen, with tobacco, had been boarded by an English frigate, and was 
 taken by a French privateer and brought into Fecamp, for the fact of 
 having been so boarded." Evidently, therefore, in the opinion at 
 least of the French privateer, which had received no revocatory orders, 
 the Milan decree was at this time in actual operation, for the capture 
 was made upon the express ground of a contravention of the Milan 
 order. "On the 2d January," he says, "I stated the facts." To 
 
HIGH COURT OF ADMIRALTY. 408 
 
 The Snipe, and others. Edw. 
 
 whom ? not to the tribunals at Paris ; not to the tribunals in that 
 district into which the ship was brought; nor does it appear 
 that *the claimants applied to those tribunals; but "in a [*408 ] 
 few days afterwards the ship and cargo were ordered by the 
 emperor to be restored to the owners, upon condition ;" — upon what 
 condition ? — "that she had not violated the French navigation laws." 
 Now, upon what pretence could the French navigation laws possibly 
 be applied to this ship ? — a ship bound from Norfolk, in America, to 
 Tonningen, no part of the French dominions. The navigation laws 
 of a country are confined to a trade to or from that country. Our 
 navigation laws, for instance, undoubtedly have a right to prescribe 
 rules to be observed by foreigners trading to or from this country ; 
 but do they pretend in any manner to intermeddle with the naviga- 
 tion of foreign states, as between themselves ? In what way could 
 the French navigation laws apply to such a case as this ? Bellige- 
 rent orders might, but navigation laws could not at all. To whom, 
 however, are these navigation laws referred ? They are referred to 
 the Council of Prizes. The council determine that no such violation 
 had taken place, as certainly no such violation could possibly have 
 taken place; and then she is delivered, — but delivered by the em- 
 peror. 
 
 The next case to which this gentleman refers in his subsequent 
 letter, is that of the schooner Fly ; and it is this : " She was of and 
 from New York, loaded with cotton, sugar, and coffee, bound to St. 
 Petersburg, and taken by an English cruiser, and carried into Cowes ; 
 thence released." Does she go to Petersburg, the place of her desti- 
 nation ? No, she goes into Havre. Why, then, here is a fraudulent 
 case of a ship bound ostensibly to Petersburg, but bound really to 
 France ; she was released at Cowes, and then pursued her fraudulent 
 voyage into the French port to which she was destined. 
 " She declared *the facts as above related," which she might [ *409 ] 
 undoubtedly do with perfect safety, having contrived and 
 effected a fraud for the supply of France ; and she was reloaded with 
 French goods, and departed without molestation. Such a case as 
 this I do not consider as of any authority, where such a fraud had 
 been practised by a vessel in favor of French commerce, for the sup- 
 ply of French necessities, and a ship, as I likewise observe, under 
 French license. 
 
 The next is the case of "the ship Phoebe, from Boston to Civiti 
 
 Vecchia, laden with colonial produce, which had been boarded, arrived, 
 
 entered, sold, and now reloading for departure." This is another 
 
 license case, — a case peculiarly favored and distinguished, because, 
 
 24* 
 
410 CASES DETERMINED IN THE 
 
 The Snipe, and others. Edw. 
 
 undoubtedly, when a license is granted to import goods into France, 
 I cannot conceive that any case can occur in which the Berlin and 
 Milan decrees can be applied to ships so privileged, and conforming 
 (as far as their own voluntary conduct was concerned) to the terms 
 of the license. An exemption from the Berlin and Milan decrees 
 must indisputably be considered to be granted on account of any in- 
 voluntary acts to which the ship had been subjected in the voyage. 
 She had been boarded by an English cruiser, while sailing with a 
 French license, and for the purpose of the supply of the markets of 
 France. 
 
 The case of " the ship Recovery, of Boston, boarded, arrived, and 
 
 entered as above, at the same place, now selling her cargo," is another 
 
 of these license cases which was freighted at the same place. Out 
 
 of these seven cases here are two others, which are by decrees of the 
 
 emperor, not by decrees of the courts ; and one other case, 
 
 [ * 410 ] which is the case of " the * brig Ann Maria, bound to a port 
 
 in France, put into Falmouth, then came to Morlaix, entered, 
 
 sold, bought, reloaded, and departed as above." There is no proof 
 
 whatever that the fact of her touching at Falmouth was at all known, 
 
 or that she had declared this fact, nor is any explanation given upon 
 
 what authority she had been restored, whether by an act of the state, 
 
 or by an act of the tribunals. 
 
 Of these seven cases, then, which are specially referred to, three 
 are cases of vessels under license, in which an actual and special pro- 
 tection had been given ; two are restored, not by judgments of the 
 tribunals acting upon the known law, but by the act of the person 
 exercising the sovereign powers of the state in a way that suited his 
 policy or his fancy in the particular case ; and in one of the other two 
 it does not at all appear that the fact was known that the ship had 
 violated the French decrees by visiting an English port. So that 
 one only remains, and what the real circumstances of that case were 
 it is quite impossible for the captors to investigate — they may be 
 such as, if known, would prevent the case from being of any author- 
 ity whatever. This I see, that the case is without date ; that the 
 ship was originally destined to a French port ; that she had only 
 been visited by a British cruiser, and had not been seized by any 
 French captor on her arrival. 
 
 To the observation I have already made on the practice, as insuffi- 
 cient to support this document, even if proved, I will only add, that 
 if there were a practice founded upon any such decree, it must have 
 been a practice uniformly, universally, and notoriously proceeding 
 upon all such cases since the 1st November, 1809. There. 
 [ * 411 ] must be a numerous and uninterrupted " series, accompa- 
 
HIGH COURT OF ADMIRALTY. 412 
 
 The Snipe, and others. Edw. 
 
 nied (unless there has been gross negligence on the part of the 
 claimants) with regular proofs now ready to be produced. This 
 would have been legal evidence, well entitled to the attention of the 
 court, in proof of the non-execution of the Berlin and Milan decrees, 
 in consequence of an authentic revocation, publicly promulged. I do 
 not entirely accede to the position of Mr. Russel, that the non-exist- 
 ence of the decree can only be proved by the promulgation of the re- 
 peal,^ and by the non-execution of the decree, because the mere non- 
 execution may prove nothing but the present suspension of the decree 
 pretended to be repealed. The property may remain in a state of 
 detention within the grasp of the decrees, whenever it is thought fit 
 to call them into action. It is not the mere present non-execution of 
 the rule, but an execution of a contrary rule introduced by the repeal, 
 that is the proper evidence. Show an authentic and public repeal, 
 show that repeal followed up, not by a mere cessation, but by imme- 
 diate liberation under sentence of the courts, and a judgment of costs 
 against those who presume to infringe it. That is the proper evi- 
 dence in which the other belligerent may be expected to acquiesce ; 
 but it is evidence of a very different nature indeed from that which 
 is furnished by the representation given in one of the letters ^ alluded 
 to, that " in the month of May, 1811, not one vessel captured 
 since the 1st of November had been either released or brought to 
 trial." 
 
 It is hardly worth while to advert to three affidavits offered to the 
 court, by which it appears that three American vessels, bound to Bri- 
 tish ports, had been examined by French privateers, and suffered to 
 proceed. I do not find that any reference was made to the 
 repeal * of the Berlin and Milan decrees, as the motives for [*412 ] 
 such releases. They might be for reasons of private conve- 
 nience, such as often occur in the cases of British ships which are 
 released by the enemy, when the cruiser is already encumbered with 
 as many prizes as she can dispose of. Or they might be in conse- 
 quence of special orders for special purposes — for the public service 
 of France, or for the purpose of giving a color now and then to such 
 suggestions as are now offered to the court. To be sure, if these 
 cases are to be taken as they^ are described, they prove too much ; 
 they prove not only that the French have repealed their own Berlin 
 and Milan decrees, but that they have renounced their own rpost 
 undeniable right under the general law of nations ; namely, of 
 
 1 Appendix T. ^ Appendix V. 
 
413 CASES DETEEMINED IN THE 
 
 The Snipe, and others. Edw. 
 
 seizing contraband of war going to an enemy's port, for two out of 
 these three cases are cases of naval stores coming to this country. 
 If it be asked whether in the evidence adduced several restitutions 
 do not appear to have been made of American ships confiscable under 
 the Berlin and Milan decrees. I answer, without reserve, that I be- 
 lieve there may have been such instances. It would be indecent to 
 deny what these gentlemen have averred in general terms, though 
 their specific instances are very unsatisfactory. But I answer further, 
 that these restitutions have been acts of state, proceeding on motives 
 of policy, or humor in the particular instances, not judgments of tri- 
 bunals acting upon a known law, at the instance of parties who claim 
 the benefit of it. It was said, on behalf of the claimants, that we 
 have no right to dictate to France modes of restitution ; I answer, 
 
 that we undoubtedly possess such a right, because the law 
 [ * 413 ] of nations authorizes us to make a demand of that kind.* 
 
 The law of nations obliges every maritime country to have 
 tribunals of this species, from which injured parties have a right to 
 demand redress, not ex gratia, or as matter of court favor, but ex 
 debito justiticB. And it is no answer, when we call for a law, to show 
 us a particular act of state that has done the same thing. If they 
 proceeded upon the law, show the law in the usual manner, by the 
 production of the edict itself, by recorded applications of it in a legal 
 form, and by the testimony of eminent professors of the law. If you 
 can show no such thing, it leaves the matter open to the conclusion, 
 which has a good deal of other collateral authentic history to support 
 it, namely, that the French ruler reserved this subject entirely to his 
 own sovereign will and pleasure ; that he granted restitutions and 
 refused restitutions very much at his own special discretion, with lit- 
 tle interference on the part of the tribunals. I think strong traces of 
 this are to be found in the correspondence of Mr. Russel ; sometimes 
 the " emperor refuses to permit any American cases to be reported to 
 him," though all depending upon his decision.^ At other times " he 
 declines," as stated by Mr. Russel, " taking any decision with regard 
 to the list, before it had been submitted to," what? not to the coun- 
 cil of prizes, but to the council of commerce. Then comes a journey 
 to Cherbourgh, and fetes and festivals, and the matter is adjourned 
 sine die. No wonder that the French cruisers should betray a very 
 inconsistent practice of their own in such an uncertain state of things 
 — what to take, or what not to take. But what this country de- 
 mands is a clear and determinate rule of law, acted upon in a clears 
 
 Appendix W. 
 
HIGH COURT OF ADMIRALTY. 414 
 
 The Snipe, and others. Edw. 
 
 and determinate manner; not a crooked and fluctuating practice, 
 bending to present policy, or even to present humor, in such a 
 manner as to leave no certainty to guide any individual, or 
 * any state that looks to it for the direction of her conduct. [ * 414 ] 
 If the matter is left in a state of uncertainty, it is enough ; 
 because, if honestly meant and fairly authenticated, no possible doubt 
 could hang upon it. It would be enough that the matter was left 
 in a questionable shape as to whether the decrees were revoked or 
 not, or how they had been revoked. But the case, in my apprehen- 
 sion, goes much further — it goes to the effect of establishing that 
 no such revocation has actually taken place. 
 
 Having arrived, at least in the conviction of my own judgment, to 
 the conclusion, that the instrument relied upon is a false and fraudu- 
 lent instrument, without good faith, without authenticity, and without 
 promulgation, it becomes less necessary for me to consider how far 
 it would have satisfied the other requisites prescribed in the order, if 
 it had not been an instrument totally deficient in these primary and 
 fundamental qualifications. I shall, therefore, not impose upon my- 
 self the task of inquiring how far, in the case of such general decrees, 
 violating the rights of neutrals universally, a revocation of them in 
 favor of any one state, calling itself neutral, is entitled to the respect 
 of the other belligerent, whose rights may be more deeply affected by 
 the partial revocation than by the general prohibition itself — how far 
 the state, which has imposed the injurious prohibition, has any right 
 to make such a selection of neutrals more than it had the right to im- 
 pose the original prohibition — how far a state, calling itself neutral, 
 has a right entirely to disband from the common confederacy of civil- 
 ized nations, and to accept, as a mere indulgence to itself, that which 
 it ought to claim and possess as the common birthright of 
 all neutral states whatsoever — how far * it is at liberty, con- [ * 415 ] 
 sistently with any known principles of general justice, or of 
 national good faith, by such an acceptance for its own temporary con- 
 venience, to concur in establishing principles immediately fatal to the 
 rights of all other neutral countries, and ultimately and consequentially 
 to its own ; and if it is not so at liberty, to what extent of opposition 
 beyond the indignant rejection of such selfish favors, if they are so 
 offered, it is bound to carry its resistance. These are momentous 
 questions ; and they become more momentous if the assertion of a 
 right to accept such selfish advantages upon a species of dereliction 
 of neutral rights and duties, should be coupled with the assertion of 
 a still more noxious right to accept them upon terms which can have 
 no other merit allowed to them than that of qualified hostility to the 
 other belligerent. For the neutral state to contend against that belli- 
 
416 CASES DETERMINED IN THE 
 
 The Snipe, and others. Edw. 
 
 gerent, that she had accepted such terms, had acted upon them, and 
 by such acceptance and acting had a right to insist that the condi- 
 tional bargain had ceased to be conditional, and ought now to be 
 considered as absolutely against him, does seem something of a pre- 
 tension not very consistent with the expectation of a ready acquies- 
 cence on the part of that other belligerent. It were much to be 
 lamented, if a state of things should exist which called for the discus- 
 sion of such questions. The conclusion to which I have arrived ex- 
 cludes the necessity of inquiring whether such a state of things does 
 exist, and what decision ought to be applied to the questions arising 
 out of it. It is equally unnecessary to inquire whether the accept- 
 ance of any conditions (be their nature what it may, even future, 
 prospective, or continuous, as Dr. Stoddart has observed) leaves the 
 
 revocation still in a conditional state, or converts it into an 
 [ * 416 ] absolute one, * (though the conditions are still resting in 
 
 future unexecuted performance,) together with several other 
 minor considerations, on which much learned industry -has been be- 
 stowed. Such as whether the revocation, if it existed, was absolute, 
 even with respect to all the claims of the favored neutral ; whether it 
 comprised cargoes as well as ships ; and whether it extended to the 
 protection of American property on board the vessels of other neutral 
 countries, or of the products of England on board American vessels, 
 become American property by purchase. 
 
 With these observations I dismiss this case, having brought to the 
 consideration of it, as I trust, all that impartiality and independence 
 of mind so strongly pressed upon me by advice, of which I should be 
 less disposed to doubt the propriety, if I had in the slightest degree 
 felt the necessity. In a case which, though not attended with much 
 difficulty, is not without its delicacy, I have endeavored to discharge 
 my duty as in other cases, certainly without any disregard to the 
 satisfaction of other minds, but indispensably to the satisfaction of 
 my own. If that satisfaction has been acquired upon principles 
 erroneously assumed or applied, it is my consolation in this, as in 
 other cases, that those principles may receive their correction from 
 the proper authority. For, without taking upon myself to say how 
 they ought not to be corrected, I may venture to intimate that the 
 law and constitution of this country point to the tribunal of appeal 
 as the proper forum by which the judgments of this court are prima- 
 rily and properly to be examined. Acknowledging, with all respect, 
 that authority, I pronounce that this ship, and the other American 
 ships, captured before the 20th May, are liable to condemna- 
 tion ; and that those which have been captured since * are [ * 417 ] 
 
HIGH COURT OF ADMIRALTY. 417 
 
 The Snipe, and others. Edw. 
 
 entitled to the benefit of the protection held out in the declara- 
 tion of 23d June — a declaration founded not upon the faith of 
 that pretended revocation of the French decrees, but upon motives 
 of conciliation, upon 4he desire entertained and expressed by his Ma- 
 jesty of reestablishing the intercourse between neutral and belligerent 
 nations upon its accustomed principles. 
 
APPENDIX 
 
 A. 
 
 Note to page 2. 
 
 Order in Council, November 19, 1806. 
 
 Wheeeas it has been represented to his Majesty, that it would be expedient, 
 in the present circumstances to permit, under certain rules and regulations, a 
 commercial intercourse to be carried on in British vessels, navigated according 
 to law, from the free ports in the Bahama Islands, and the port of Road Har- 
 bour, in the island of Tortola, to such ports and places in the island of St. Do- 
 mingo as are not, or shall not be under the dominion and in the actual posses- 
 sion of his Majesty's enemies ; his Majesty, by and with the advice of his 
 privy council, is pleased to authorize, and doth hereby authorize the governor 
 of the Bahama Islands, and the governor in the Leeward Islands, (or the 
 president of the council residing in the island of .Tortola, and the chief justice 
 and collector of -the customs of, the said island, if by writing under the hand 
 and seal of the governor of the Leeward Islands they shall be deputed 
 for that purpose,) and each of them, to grant licenses -under their hands and 
 seals respectively, but in his Majesty's name, to British vessels navigated ac- 
 cording to law, to clear out from the port of Eoad Harbour, in the island of 
 Tortola, and from the free ports in the Bahama Islands, respectively, with car- 
 goes of the produce or manufacture of the United Kingdom of Great Britain 
 and Ireland, and salt from the Bahama Islands, to such ports or places in the 
 island of St. Domingo as are not or shall not be under the dominion and in 
 the actual possession of any of his Majesty's enemies, (the name of the ves- 
 sel, and the port or ports to which the vessel is bound, to be inserted in every 
 such license,) and to bring back from such ports in the said island, to the free 
 ports in the Bahama Islands, or to the port of Eoad Harbour, in the island of 
 Tortola, or to some port of the United Kingdom, any articles the pro- 
 duce of the said island of St. Domingo ; such articles * of produce to [ * 2 ] 
 be in all respects subject to the duties and regulations to which the 
 produce of foreign islands is by law subject : Provided, however, that such 
 vessels shall not carry any sugar to the said island of St. Domingo, nor carry any 
 negroes, either to or from the said island. And his Majesty is further pleased 
 to direct, that every license so granted shall be entered upon record in the 
 proper office, and an account thereof be transmitted to his Majesty's secretary 
 EDW. 25 
 
iii APPENDIX. 
 
 of state, for the colonial department. And his Majesty doth hereby order and 
 command all and every the commanders and officers of his ships and vessels 
 of war, and the commanders of all private ships of war, and others whom it 
 may concern, to suffer all and every such ships and vessels having such 
 licenses as aforesaid, and conforming to the regulations therein prescribed, to 
 pass and repass upon their respective voyages, which shall be described in 
 such licenses. And in case, through ignorance, or in breach of this, his Ma- 
 jesty's order in council, any ships or vessels having such license as aforesaid, 
 shall be brought in for adjudication, his Majesty doth hereby further order and 
 command, that they shall forthwith be released by his Majesty's Court of Ad- 
 miralty, upon proof that the parties have duly conformed to the regulations 
 and restrictions prescribed in the said license. 
 
 (Signed) W. Fawkenee. 
 
 B. 
 
 Note to page 2. 
 
 Instruction, llth February, 1807. 
 
 OuE will and pleasure is, that all British vessels which have cleared out for 
 any of the ports of our United Kingdom to Buenos Ayres and the River Plata, 
 may be permitted, either to proceed without interruption to any port of the 
 island of St. Domingo, not in the immediate possession and under the control 
 of France or Spain, there to dispose of their cargoes, and to lade produce in 
 return, and to carry the same to any port of our United Kingdom, or to trans- 
 ship their cargoes on board neutral vessels, and to send the same for sale to 
 any hostile colony, and to bring back returns on board such neutral vessels, to 
 any port of our United Kingdom. 
 
 By his Majesty's command, 
 
 (Signed) Spencer. 
 
 [ * 3 ] * C. 
 
 Note to page 2. 
 
 Orders in Council, I5th July, 1807. 
 
 Whereas it has been represented to his Majesty, that it would be expedient 
 in the present circumstances to permit, under certain rules and restrictions, a 
 commercial intercourse to be carried on in British vessels, navigated accord- 
 
APPENDIX. iv 
 
 ing to law, from the province of Nova Scotia, to such ports and places in the 
 island of St. Domingo, as are not or shall not be under the dominion and in the 
 actual possession of the government of France or Spain ; his Majesty, by and 
 with the advice of his privy council, is pleased to authorize, and doth hereby 
 authorize, the governor of the said province of Nova Scotia, to grant licenses 
 under his hand and seal, but in his Majesty's name, to British vessels, navi- 
 gated according to law, to clear out from any port of the said province of Nova 
 Scotia, with cargoes of the produce of the said province of Nova Scotia, or any 
 British colony or plantation, or of the produce or manufacture of the United 
 Kingdom of Great Britain and Ireland, to such ports and places in the island 
 of St. Domingo, as are not or shall not be under the dominion and in the actual 
 possession of the government of France or Spain, (the name of the vessel and 
 the ports to and from which the vessel is bound to be inserted in any such 
 license,) and to bring back from such ports in the said island, to some port of 
 the said province of Nova Scotia, or to some port of the United Kingdom, any 
 articles the produce of the said island of St. Domingo, such articles of produce 
 to be in all respects subject to the duties and regulations to which the pro- 
 duce of foreign islands is by law subject : Provided, however, that such ves- 
 sels shall not carry any sugar to the said island of St. Domingo, nor carry any 
 negroes either to or from the said island. And his Majesty is further pleased 
 to direct, that every license so granted shall be entered upon record in the 
 proper office, and an account thereof be transmitted to his Majesty's secretary 
 of state for the colonial department. And his Majesty doth hereby order and 
 command all and every the commanders and officers of his Majesty's ships 
 and vessels of war, and the commanders of all private ships of war, and all 
 others whom it may concern, to suffer all and every such ships and vessels, 
 having such license as aforesaid, and conforming to the regulations therein 
 prescribed, to pass and repass upon their respective voyages, which 
 shall be described in such licenses. And in case * through igno- [ * 4 ] 
 ranee, or in breach of this, his Majesty's order in council, any ships 
 or vessels having such license as aforesaid, shall be brought in for adjudication, 
 his Majesty doth hereby further order and command, that they shall forthwith 
 be released by his Majesty's Courts of Admiralty, upon proof that the parties 
 have duly conformed to the regulations and restrictions prescribed in the said 
 licenses. 
 
 (Signed) Stephen Cotteell. 
 
 D. 
 
 Note to page 4. 
 Pelican, Burke. 
 
 In the case of The Pelican, Burke, the same question occurred in the Court 
 of Appeal, 6th May, 1809. It was the case of a vessel under Danish colors, 
 
V APPENDIX. 
 
 captured on a voyage from Port au Prince to New York, with a return cargo 
 of cofTee, &c. The judgment of the court was delivered by Sir William 
 Grant, to the following effect : — 
 
 " Although it was matter of notoriety, that a considerable part of St. Do- 
 mingo had been emancipated from the dominion of France, yet, when the 
 former cases (Dart and Happy Couple) were decided, we thought there was 
 no sufficient ground to authorize the court to presume a change in its national 
 character. . It always belongs to the government of the country to determine 
 in what relation any other country stands towards it ; that is a point upon 
 which courts of justice cannot decide. Now, although the cases of The Dart, 
 and Happy Couple, involving that question, did not come on for hearing before 
 this board until some time after the subsequent orders in council had issued, 
 yet those orders were not in existence at the time when the captures took 
 place. But they had been promulgated previously to the present capture ; 
 and we are of opinion that they do contain a recognition on the part of his 
 Majesty's government, that there are ports and places in St. Domingo not only 
 not in the possession, but also not under the dominion of France. The only 
 ground for condemnation in this case is the trading from a hostile colony ; 
 but that cannot apply to those parts of it which are not considered or held to 
 be under the dominion of the enemy ; and therefore the real question 
 
 [ * 5 ] * is as to the description and character of the port or place from 
 which the vessel was trading. It is evident, that whatever may have 
 been the motive for granting these licenses under the orderS in council, it 
 could not be to sanction or authorize a trade with such parts of the colony as 
 are hostile, because in the orders themselves a distinction is taken as to differ- 
 ent-parts of St. Domingo, to some of which a trade is permitted, to others not. 
 It was not necessary that government should have ascertained in what way 
 affirmatively St. Domingo should be politically and commercially considered. 
 It is sufficient for the present question, that the orders negative a hostile cha- 
 racter applying to certain parts of the colony ; and it was not contended in 
 argument, that the port from which this vessel sailed was not one of those to 
 which these subsequent orders would apply. We are therefore of opinion that 
 this property must be restored ; but as the question is altogether new, we think 
 the captors ought to be reimbursed in their expenses. 
 
 Note to page 17. 
 
 Orders in Council, January 7, 1807. 
 
 Whereas the French government has issued certain orders, which, in vio- 
 lation of the usages of war, purport to prohibit the commerce of all neutral na- 
 tions with his Majesty's dominions, and also to prevent such nations from trad- 
 ing with any other country, in any articles the growth, produce, or manufacture 
 of his Majesty's dominions : 
 
APPENDIX. VI 
 
 And whereas the said government has also taken upon itself to declare all 
 his Majesty's dominions to be in a state of blockade, at a time when the fleets 
 of France and her allies are themselves confined within their own ports by the 
 superior valor and discipline of the British navy : 
 
 And whereas such attempts on the part of the enemy would give to his 
 Majesty an unquestionable right of retaliation, and would warrant his Majesty 
 in enforcing the same prohibition of all commerce with France, which that 
 power vainly hopes to effect against the commerce of his Majesty's 
 subjects ; a prohibition * which the superiority of his Majesty's naval [ * 6 ] 
 forces might enable him to support, by actually investing the ports 
 and coasts of the enemy with numerous squadrons and cruisers, so as to make 
 the entrance or approach thereto manifestly dangerous : 
 
 And whereas his Majesty, though unwilling to follow the example of his 
 enemies, by proceeding to an extremity so distressing to all nations not en- 
 gaged in the war, and carrying on their accustomed trade, yet feels himself 
 bound, by a due regard to the just defence of the rights and interests of his 
 people, not to suffer such measures to be taken by the enemy, without taking 
 some steps on his part to restrain this violence, and to retort upon them the 
 evils of their own injustice : 
 
 His Majesty is therefore pleased, by and with the advice of his privy coun- 
 cil, to order, and it is hereby ordered, that no vessel shall be permitted to trade 
 from one port to another, both which ports shall belong to or be in the posses- 
 sion of France or her allies, or shall be so far under their control as that Bri- 
 tish vessels may not freely trade thereat. And the commanders of his Majes- 
 ty's ships of war and privateers shall be, and are hereby instructed to warn 
 every neutral vessel coming from any such port, and destined to another such 
 port, to discontinue her voyage, and not to proceed to any such port ; and any 
 vessel after being so warned, or any vessel coming from any such port, after 
 a reasonable time shall have been afforded for receiving information of this, 
 his Majesty's order, which shall be found proceeding to another such port, 
 shall be captured- and brought in, and, together with her cargo, shall be con- 
 demned as lawful prize. And his Majesty's principal secretaries of slate, the 
 Lords Commissioners of the Admiralty, and the Judges of the High Court of 
 Admiralty and Courts of Vice-Admiralty, are to take the necessary measures 
 herein, as to them shall respectively appertain. 
 
 (Signed) W. Fawkenee. 
 
 Note to page 32. 
 
 Order of Council, November 11, 1807. 
 
 Whereas certain orders, establishing an unprecedented system of warfare 
 against this kingdom, and aimed especially at the destruction of its 
 commerce and resources, were some time * since issued by the [ * 7 ] 
 
 25* 
 
viii APPENDIX. 
 
 government of France, by which " the British islands were declared 
 [ * 8 ] to be in a state of blockade," ^ thereby subjecting * to capture and 
 
 1 FRENCH DECREE. 
 
 November 21,1806. 
 The annexed translation of the decree of 21 st November, which appeared in the public pa- 
 pers, has been corrected by the ofiScial commnnication in the Moniteur. 
 
 Napoleon, Emperor of the Prench, and King of Italy. 
 Considering, 
 
 1. That England does not acknowledge the laws generally observed by all civilized nations. 
 
 2. That she regards eyery individual as an enemy who belongs to an enemy's state, and 
 consequently makes prisoners of war, not only of the crews of ships of war, but ajso of the 
 crews of merchant vessels, and even supercargoes and merchants who are proceeding in their 
 course of trade. 
 
 3. That she extends to merchant ships and to wares, and to property of private persons, 
 that right of conquest which ought only to be applied to property belonging to the hostile 
 states. 
 
 4. That she extends the right of blockade to commercial unfortified towns, and to ports, 
 harbors, and mouths of rivers, which, according to the principles and practice of civilized 
 nations, is only applicable to fortified places. 
 
 That she declares places in a state of blockade before which she has not a ship of war, 
 though no place can be considered in a state of blockade, unless it is so invested that ap- 
 proach cannot be attempted without imminent danger. 
 
 That she even declares places in a state of blockade, which, with all her forces united, she 
 is incapable of blockading, namely, whole coasts and empires. 
 
 5. That this monstrous abuse of the right of blockade has no other object than to obsti;uct 
 the communication of nations with each other, and to raise the trade and the industry of 
 England upon the ruin of the trade and industry of the nations of the continent. 
 
 6. That since such is the object of England, whoever is concerned in the commerce of 
 English merchandise, on the continent, thereby favors her views and becomes her accomplice. 
 
 7. That this conduct on the part of England, which is only worthy of the earliest ages of 
 barbarism, has redounded to the advantage of that state, and to the injury of all others. 
 
 8. That it is a natural right to oppose an enemy with the same weapons he employs, and 
 to combat him by the same means which he employs against others, especially when that 
 enemy disclaims all ideas of justice, and all the liberal sentiments which have resulted from 
 the civilization of mankind. 
 
 We have resolved to direct against England the same system which she has established 
 by her maritime code. The regulations of the present decree shall therefore be henceforth 
 considered as forming a fundamental law of the empire, hntil England shall acknowledge 
 that the right of war is the same by land as by sea — that it does not extend to private pro- 
 perty, of any kind whatever, or to the persons of individuals unconnected with the profession 
 of arms, and that the right of blockade is limited to fortified places, actually invested by a 
 suflScient force. We have therefore decreed, and do hereby decree, as follows : 
 
 Article 1. The British Isles are declared in a state of blockade. 
 
 2. All trade and all correspondence with the British Isles are prohibited. 
 Consequently, all letters or packets that are addressed to England, or to Englishmen, or 
 
 which are written in the English language, shall not henceforth be forwarded by post, but 
 shall be seized. 
 
 3. Every individual English subject, of whatever rank or condition, who shall be found in 
 any country occupied by our troops, or the troops of our allies, shall be considered as a pri- 
 soner of war. 
 
 4. Every magazine, every kind of merchandise, every species of property, be it what it 
 may, which belongs to an English subject, shall be considered as lawful prize. 
 
APPENDIX. ix 
 
 condemnation all vessels with their cargoes which should continue to trade 
 with his Majesty's dominions : 
 
 5. Trade in English merchandise is prohibited : and all merchandise that belongs to Eng- 
 land, or that is the produce of her manufactures or colonies, is declared lawful prize. 
 
 6. A moiety of the produce of the confiscated property, which, by the foregoing articles, is 
 declared lawful prize, shall be appropriated to the merchants, to indemnify them for the loss 
 they have sustained from the capture of their merchant vessels by English cruisers. 
 
 7. No ship which comes direct from England, or the English colonies, or which shall have 
 been there after the publication of the present decree, shall be permitted to enter any of our 
 harbors. 
 
 8. Every ship trading by means of a false declaration, in contravention of the above-men- 
 tioned regulations, shall be detained, and the ship and lading shall be confiscated, as if they 
 were English property. 
 
 9. Our Tribunal des Prizes, at Paris, is invested with the power of definitively deciding 
 all questions which may arise within our empire, or in the countries occupied by the French 
 armies, in respect to the execution of our present decree. Our Tribunal des Prizes at Milan 
 is invested with the power of definitively deciding such questions as may arise within the 
 limits of our kingdom of Italy. 
 
 10. The communication of the present decree shall be made by our minister of foreign 
 relations to the kings of Spain, Naples, Holland, and Etruria, and to our other alhes, whose 
 subjects are, as well as our own, the victims of the injustice and barbarism of the English 
 maritime code. 
 
 11. Our ministers of foreign relations, of war, marine, finance, and police, and our director 
 general of the posts, are, in their respective departments, charged with the execution of our 
 present decree. 
 
 The following decree of increased severity, has appeared since in the public papers ; but the 
 editor has had no opportunity of comparing it with an authenticated copy. , 
 
 Pan's, 26th December, 1807. 
 
 Napoleon, Emperor of the Erench, King of Italy, and protector of the Rhenish confede- 
 ration ; — Observing the measures adopted by the British government, on the 11 th of No- 
 vember last, hy which vessels belonging to neutral, friendly, or even powers the allies of 
 England, are made liable, not only to be Searched by English cruisers, but to be compulsorily 
 detained in England, and to have a tax laid on them of so much per cent, on the cargo, to 
 be regulated by the British legislature — observing that by these acts the British government 
 denationalizes ships of every nation in Europe, that it is not competent for any government 
 to detract from its own independence and rights, all the sovereigns of Europe having in 
 trust the sovereignties and independence of the flag ; that if, by an unpardonable weakness, 
 and which, in the eyes of posterity, would be an indelible stain, such a tyranny was allowed 
 to be established into principles, and consecrated by usage, the English would avail them- 
 selves of it to assert it as a right, as they have availed themselves of the tolerance of govern- 
 ments to establish the infamous principle, that the flag of a nation does not cover goods, and 
 to give to their right of blockade an arbitrary extension, and which infringes on the sove- 
 reignty of every state; we have deorepd, and do decree, as follows : 
 
 Art. 1. Every ship, to whatever nation it may belong, that shall have submitted to be 
 searched by an English ship, or to a voyage to England, or that shall have paid any tax 
 whatsoever to the English government, is thereby, and for that alone, declared to be dena- 
 tionalized, to have forfeited the protection of its king, and to have become English property. 
 
 2. Whether the ships thus denationalized by the arbitrary measures of the English govern- 
 ment, enter into our ports, or those of our allies, or whether they fall into the hands of our 
 ships of war, or of our privateers, they are declared to be good and lawful prizes. 
 
 3. The British islands are declared to be in a state of blockade, both by land and sea. 
 Every ship, of whatever nation, or whatsoever the nature of its cargo may be, that sails from 
 the ports of England, or those of the English colonies, and of the countries occupied by 
 
ix APPENDIX. 
 
 [ * 9 ] * And whereas by the same orders, " all trading in English mer- 
 [ * 10 ] chandise is prohibited, and every article of merchandise * belonging 
 
 to England, or coming from her colonies, or of her manufactures, is 
 
 declared lawful prize : " 
 [ * 11 J * And whereas the nations ^ in alliance with France, and under 
 
 English troops, and proceeding to England, or to the English colonies, or to countries occu- 
 pied by English troops, is good and lawful prize, as contrary to the present decree, and 
 may be captured by our ships of war, or our privateers, and adjudged to the captor. 
 
 4. These measures, which are resorted to only in just retaliation of the barbarous system 
 adopted by England, which assimilates its legislation to that of Algiers, shall cease to have 
 any elFect with respect to all nations who shall have^the firmness to compel the English go- 
 vernment to respect their flag. They shall continue to be rigorously in force, as long as that 
 government does not return to the principle of the law of nations, which regulates the rela- 
 tions of civilized states in a state of war. The provisions of the present decree shall be abro- 
 gated and null, in fact, as soon as the English abide again by the principles of the law of 
 nations, which are also the principles of justice and honor. 
 
 AH our ministers are charged with the execution of the present decree, which shall be in- 
 serted in the bulletin of the laws. 
 
 1 SPANISH DECREE. 
 
 Aranjilez, 19(/i February, 1807. 
 
 By the greatest outrage against humanity and against policy, Spain was forced by Great 
 Britain to take part in the present war. This power has exercised over the , sea, and over 
 the commerce of the world, an exclusive dominion. Her numerous factories, disseminated 
 through all countries, are like sponges, which imbibe the riches of those countries, without 
 leaving them more than the appearances of mercantile liberty. Erom this maritime and 
 commercial despotism, England derives immense resources for carrying on a war, whose ob- 
 ject is to destroy the commerce which belongs to each state from its industry and situation. 
 Experience has proved that the morality of the British cabinet has no hesitation as to the 
 means, so long as they lead to the accomplishment of its designs ; and whilst this power can 
 continue to enjoy the fruits of its immense traffic, humanity will groan under the weight of 
 a desolating war. To put an end to this, and to obtain a solid peace, the Emperor of the 
 Erench and King of Italy, issued a decree on the 21st of November last, in which, adopting 
 the principle of reprisals, the blockade of the British Isles is determined on ; and his ambas- 
 sador, his Excellency Francis de Bourharnois, Grand Dignitary of the Iron Crown, of the 
 Legion of Honor, &c. &c. having communicated this decree to the king our master ; and his 
 Majesty being desirous to cooperate by means sanctioned by the right of reciprocity, has 
 been pleased to authorize his Most Serene Highness, the Prince Generalissimo of the Marine, 
 to issue a circular of the following tenor : , 
 
 As soon as England committed the horrible outrage of intercepting the vessels of the royal 
 marine, insidiously violating the good faith with which peace assures individual property, 
 and the rights of nations, his Majesty considered himself in a state of war with that power, 
 although his royal soul suspended the promulgation of the manifesto until he saw the atrocity 
 committed by its seamen, sanctioned by the government of London. From that time, and 
 ■svithout the necessity of warning the inhabitants of these kingdoms of the circumspection 
 with which they ought to conduct themselves towards those of a country which disregards 
 the sacred laws of property, and the rights of nations, his Majesty made known to his sub- 
 jects the state of war in which he found himself with that nation. All trade, all commerce 
 is prohibited, in such a situation ; and no sentiments ought to be entertained towards such 
 an enemy, which are not dictated by honor ; avoiding all intercourse which might be consi- 
 dered as the vile efforts of avarice, operating on the subjects of a nation which degrades itself 
 in them. His Majesty is well persuaded that such sentiments of honor are rooted in the 
 
APPENDIX. xii 
 
 her control, were required to give, and have given, and do give, effect to 
 such orders : 
 
 * And whereas his Majesty's order of the 7th of January last has [ * 12 ] 
 not answered the desired purpose, either of compelling the enemy to 
 * recall these orders, or of inducing neutral nations to interpose with [ * 13 ] 
 effect, to obtain their revocation, but, on the contrary, the same have 
 been recently enforced with increased rigor : 
 
 And whereas his Majesty, under these > circumstances, finds himself com- 
 pelled to take further measures for asserting and vindicating his just rights, 
 and for supporting that maritime power, which the exertions and valor of bis 
 people have, under the blessing of Providence, enabled him to establish and 
 maintain ; and the maintenance of which is not more essential to the safety 
 and prosperity of his Majesty's dominions, than it is to the protection of such 
 states as still retain their independence, and to the general intercourse and 
 happiness of mankind ; 
 
 1. His Majesty is therefore pleased, by and with the advice of his privy 
 council, to order, and it is hereby ordered, that all the ports and, places of 
 France and her allies, or of 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 be- 
 longing to his Majesty's enemies, shall, from henceforth, be subject to the 
 same restrictions, in point of trade and navigation, with the exceptions herein- 
 after mentioned, as if the same were actually blockaded by his Majesty's naval 
 forces, in the most strict and rigorous manner. 
 
 2. And it is hereby further ordered and declared, that all trade in articles 
 which are of the produce or manufacture of the said countries or colonies, 
 shall be deemed and considered to be unlawful ; and that every vessel trading 
 from or to the said countries or colonies, together with all goods and merchan- 
 dise on board, and all articles of the produce or manufacture of the said coun- 
 tries or colonies, shall be captured, and condemned as a prize to the captors. 
 
 3. But although his Majesty would be fully justified, by the circumstances 
 and considerations above recited, in establishing such a system of restrictions 
 
 hearts of his beloved subjects ; but he does not choose on that account to allow the smallest 
 indulgence to yiolators of the law, nor permit that, through their ignorance, they should be 
 taken by surprise ; authorizing me by these presents to declare, that all English property 
 will be confiscated whenever it is found on board a vessel, although a neutral, if the consign- 
 ment belongs to Spanish individuals. So likewise will be confiscated all merchandise that 
 may be met with, although it may be in neutral vessels, whenever it is destined for England 
 or her isles. And finally, his Majesty, conforming himself to the ideas of his ally, the Empe- 
 ror of the French, declared in his states the same law which, from principles of reciprocity 
 and suitable respect, his Imperial Majesty promulgated under the date of the 21st Novem- 
 ber, 1806. 
 
 The execution of this determination of his Majesty belongs to the chief of the provinces, 
 of departments, and of vessels (baxtels) ; and communicating it to them in the name of his 
 Majesty, I hope they will leave no room for the royal displeasure. God preserve you many 
 years. 
 
 The Prince Generalissimo of the Marine. 
 
xiv APPENDIX. 
 
 with respect to all the countries and colonies of his enemies, without exception 
 or qualification ; yet his Majesty, being nevertheless desirous not to subject 
 neutrals to any greater inconvenience than is absolutely inseparable from the 
 carrying into effect his Majesty'^ just determination to counteract the designs 
 of his enemies, and to retort upon his enemies themselves the consequences of 
 their own violence and injustice ; and being yet willing to hope that it may 
 be possible, consistently with that object, still to allow to neutrals the 
 [ * 14 ] opportunity of furnishing themselves with * colonial produce, for 
 their own consumption and supply ; and even to leave open, for the 
 present, such trade with his Majesty's enemies, as shall' be carried on directly 
 with the ports of his Majesty's dominions, or of his allies, in the manner here- 
 inafter mentioned : ^ 
 
 4. His Majesty is therefore pleased further to order, and it is hereby 
 ordered, that nothing herein contained shall extend to subject to capture or 
 condemnation any vessel, or the cargo of any vessel, belonging to any country 
 not declared by this order to be subjected to the restrictions incident to a state 
 of blockade, which shall have cleared out with such cargo from some port or 
 place of the country to which she belongs, either in Europe or America ; or 
 from some free port of his Majesty's colonies, under circumstances in which 
 such trade from such free port is permitted, direct to some port or place in the 
 colonies of his Majesty's enemies, or from those colonies direct to the country 
 to which such vessel belongs, or to some free port in his Majesty's colonies, 
 in such eases, and with such articles, as it may be lawful to import into such 
 free port : " 
 
 5. Nor to any vessel, or the cargo of any vessel, belonging to any country 
 not at war with his Majesty, which shall have cleared out from some port or 
 place in this kingdom, or from Gibraltar or Malta, Tjnder such regulations as 
 his Majesty may think fit to prescribe, or from any port belonging to his Ma- 
 jesty's allies, and shall be proceeding direct to the port specified in her 
 clearance : 
 
 6. Nor to any vessel, or the cargo of any vessel, belonging to any country 
 not at war with his Majesty, which shall be coming from any port or place in 
 Europe which is declared by this order to be subject to the restrictions inci- 
 dent to a state of blockade, destined to some port or place in Europe belong- 
 ing to his Majesty, and which shall be on her voyage direct thereto : 
 
 7. But these exceptions are not to be understood as exempting from cap- 
 ture or confiscation any vessel or goods, which shall be liable thereto, in 
 respect of having entered or departed from any port or place actually block- 
 aded by his Majesty's squadrons or ships of war, or for being enemies' pro- 
 perty, or for any other cause than the contravention of this present order. 
 
 8. And the commanders of his Majesty's ships of war and privateers, and 
 other vessels acting under his Majesty's commission, shall be, and are hereby, 
 instructed to warn every vessel which shall have commenced her voyage prior 
 
 to any notice of this order, and shall be destined to any port of France 
 [ * 15 ] 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 ex- 
 cluded,, or to any"colony belonging to his Majesty's enemies, and which shall 
 
APPENDIX. xvi 
 
 not have cleared out as is hereinbefore allowed, to discontinue her voyage, 
 and proceed to some port or place in this kingdom, or to Gibraltar or Malta. 
 
 9. And any vessel which, after having been so warned, or after a reasona- 
 ble time shall have been afforded for the arrival of information of this his Ma- 
 jesty's order, at any port or place from which she sailed, or which, after hav- 
 ing 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. 
 
 10. And whereas countries, not engaged in the war, have acquiesced in the 
 orders of France, prohibiting all trade in any articles the produce or manufac- 
 ture 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 : 
 
 11. 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. 
 
 And the right honorable the Lords Commissioners of his Majesty's 
 treasury, his Majesty's principal secretaries of state, * the Lords Com- [ * 16 ] 
 missioners of the Admiralty, and the Judges of the High Courts of 
 Admiralty, and Courts of Vice-Admiralty, are to take the necessary measures 
 herein, as to them shall respectively appertain. 
 
 W. Fawkener. 
 
 Note to page 70. 
 
 Order in Council, September 21, 1808. 
 
 Whereas his Majesty was pleased, by his orders in council, of the 6th of 
 January and 4th of May last, to direct certain measures to be taken for the care 
 and custody of Portuguese property belonging to persons residing in Portugal, 
 or elsewhere, under the control of France, which had been detained by British 
 
xvii APPENDIX. 
 
 cruisers, and to subject such property to the future disposition of the Prince 
 Regent of Portugal, in consideration of the owners not being entitled to the 
 possession of it while they remained under the control of the enemy : 
 
 And whereas the deliverance of Portugal from such control has since been 
 effected, and the inhabitants of that country are again become duly qualified to 
 receive the restitution of their property; his Majesty is therefore pleased, by 
 and with the advice of hi^ privy council, to order, and it is hereby ordered, 
 that all Portuguese property shall be forthwith restored to the respective own- 
 ers thereof, or their lawful agents ; and the persons appointed by virtue of the 
 order in council of the 6th of January last, for the care and management of 
 the Portuguese property, are hereby ordered to restore the same accordingly ; 
 such property nevertheless being subject to the payment of the legal charges 
 -thereon, and of the expenses justly incurred in respect thereto; and all ques- 
 tions respecting the ownership of such property, where any doubt shall be en- 
 tertained by the persons aforesaid, with respect to the same, and the charges 
 and expenses thereon shall be decided upon summarily by the High Court of 
 Admiralty, or the Court of Vice-Admiralty, in which such property may have 
 been brought to adjudication. And the right honorable the Lords Commission- 
 ers 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 the Judges of the High Courts of Vice-Admiralty, are to take 
 the necessary measures herein as to them shall respectively appertain. 
 
 (Signed) W. Favfkener. 
 
 [*17] * Note to page 122. 
 
 Order in Council, \\ih November, 1807. 
 
 Whereas the sale of ships by a belligerent to a neutral is considered by 
 France- to be illegal : 
 
 And whereas a great part of the shipping of France and her allies has been 
 protected from capture during the present hostilities, by transfers, or pretended 
 transfers, to neutrals : 
 
 And whereas it is fully justifiable to adopt the same rule in this respect, 
 towards the enemy, which is applied by the enemy to this country : 
 
 His Majesty is pleased, by and with the advice of his privy council, to order, 
 and it is hereby ordered, that in future the sale to a neutral of any vessel be- 
 longing to his Majesty's enemies, shall not be deemed to be legal, nor in any 
 manner to transfer the property, nor to alter the character of such vessel. 
 And all vessels now belonging, or which shall hereafter belong to any enemy 
 of'his Majesty, notwithstanding any sale, or pretended sale, to a neutral, after 
 a reasonable time shall have elapsed for receiving information of this, his Ma- 
 jesty's order, at the place where such sale, or pretended sale, was effected, 
 
APPENDIX. xviii 
 
 shall be captured and brought in, and shall be adjudged as lawful prize to the 
 captors. 
 
 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 Judges of the High Court of Admiralty, and Courts of Vice- 
 Admiralty, are to take the necessary measures herein as to them shall respect- 
 ively appertain. W. Fa-wkenek. 
 
 E. 
 
 IN HIS MAJESTY'S HIGH COURT OF DELEGATES. 
 
 Paisley, Jackways. 
 
 December 6, 1809. 
 
 This was the case of an American brig with a general cargo of provisions, 
 and having on board also three bales of cotton, twenty-seven boxes of soap, 
 and seventeen boxes of candles. ' The ship was seized in the port of 
 Kingston, in Jamaica, by the waiter and searcher * of the port, and [ * 18 ] 
 proceeded against in the Vice-Admiralty Court there for a breach of 
 the revenue laws, by importing the said cottons, soap, and candles. 
 
 The brig and general cargo, and the cottons, were claimed as the property 
 of Messrs. Scott & Tremain, of New York, and the soap, candles, and a few 
 other trifling articles, as the private adventure of the master and mate. 
 
 In the Vice-Admiralty Court at Jamaica, the brig and the whole of the 
 cargo were condemned ; and on appeal to the High Court of Admiralty that 
 judgment was affirmed. 
 
 On the ulterior appeal to the Court of Delegates, the case was argued on 
 the part of the crown by His Majesty's Advocate and the Attorney-General, 
 and on that of the claimants by Dr. Stoddart and Mr. Stephen. 
 
 The circumstances of the case were these : On the 17th July, 1800, a 
 resolution of the lieutenant-governor and council of Jamaica issued, allowing 
 the importation of provisions in neutral vessels " on the like terms, stipulations, 
 charges, and conditions, as are observed with respect to British vessels in the 
 like cases ;" and this resolution continued in force until November 21, 1804. 
 The vessel in question sailed on the 9th of March, 1804, from New York, 
 bound to Curacoa, and, on arriving off that island, was brought to by his Ma- 
 jesty's frigate Blanche, and warned of the then existing blockade ; upon which 
 the master directed his course to Jamaica, where he arrived on the 5th of 
 April. On the 6th, he was sworn before the naval officer to a memorial, 
 requesting the governor's permission to enter the soap, candles, and cottons, 
 EDW. 26 
 
xix^ APPENDIX. 
 
 for exportation ; but before the memorial was presented, the ship and goods 
 were seized. On the 9th, an information was filed against the ship and cargo, 
 in the Vice-Admiralty Court, pleading the statutes of the 7 & 8 Will. III. c. 22, 
 7 Geo. I. c. 21, and 28 Geo. III. c. 6; and on the 19th the master entered a 
 claim, with an explanatory attestation, annexing thereto the memorial above 
 mentioned. ' 
 
 The counsel for the' crown contended, first, that this was an importation 
 within the meaning of the statutes ; and secondly, that the penalty attached 
 to the vessel, and to all the goods on board. On the first 
 [ * 19 ]. * point they argued, that it was a general principle that coming 
 into a port with articles on board riot having an ulterior destination, 
 was an importation of such articles ; and that if such importation be prohibited 
 by la'w, nothing short of absolute, distress or compulsion could operate as a 
 justification ; that this was to be tried on the principles relative to deviatiori, 
 which had been laid down over and over again in blockade cases ; -and that in 
 respect to revenue cases, the same principles had recently been applied in The 
 Eleanor, Hall ; that so far from any distress being shown, every pretence set 
 up by the master was evidently fraudulent, as, indeed, the whole of his conduct 
 had appeared to be throughout ; that he probably meant to .break the blockade 
 of Curacoa, having received information of its existence from two English 
 cruisers, five days before he fell in with- The Blanche ; that subsequently to 
 such information, on Jbeing asked by his crew " Where he would go to in case 
 he could not enter Curacoa ?" he answered, " To Jamaica ; " that he was, 
 however, very well aware that the articles in question could not legally be im- 
 ported into Jamaica, because he himself mentioned them to Captain Mudge, of 
 The Blanche, as prohibited, although in his attestation to the claim he pre- 
 tended to have been informed for the first time by his addressee in Jamaica 
 that they were so ; that he pretended to have been advised by Captain Mudge 
 to go to Jamaica, whereas that gentleman (who had been examined) appeared 
 to have left it to };he master's own discretion to go thither or to the island of 
 St. Thomas ; that he had alleged no reason for not going to that island ; that 
 he might have gone thither or to the Spanish main ; that his pretended want 
 of water was disproved by the witnesses, who swore to his having three large 
 casks of water on l)oard, containing 400 gallons ; and that on his arrival he 
 had not even reported his vessel as in dis{ress. 
 
 On the second point, the counsel cited the case of The Experiment, Hatha- 
 way, as conclusive, together with the statutes pleaded in the informations 
 below- 
 
 For the claimants, it was submitted on the first point, that no ofience, either 
 intentional or actual was proved ; that with respecj; to intention, it could not 
 possibly exist in the minds, of the owners, who had despatched their ship and 
 property to Curacoa, and, it rnust be presumed, had suffered some disappoint- 
 ment and iticonvenience in the vessel's not reaching her destined port ; that 
 this, their . priniary object, having been defeated by the interposition of a 
 British force, in support of a belligerent right, it • would be hard to hold 
 
APPENDIX. XX 
 
 thfera strictly * bound by the subsequent acts of the master, who, if [ * 20 ] 
 left to his own conduct as their agent, -would have terminated his - 
 voyage at Curacoa ; that even 'if the master's conduct were to bind his bwners, 
 it was fully justified by the necessity of the case ; that undei' the circum- 
 stances of being warned off from his original jioft of destination, by a British 
 frigate, it was not requisite 'to set up a case of- the- very last extremity of dis- 
 tress to justify his going into Jamaica ; it was sufficient if he had made a fair 
 choice'among difficulties ; that some difficulty could not be' denied to have ei- 
 , isted ; he had a cargo of perishable articlfes — 7 no island that he could reach 
 but St. Thomas's and Jamaica ; his vessel, a dull sailer, would have encoun- 
 tered much danger and difficulty in beating up to reach the former ; his .pro- 
 visions and water, (laid in only for a vpyage to Curacoa,) must necessarily 
 be running short, .though not absolutely expended, and" might have failed be- 
 fore he could reeCch St. Thomas's, though sufiicient for the voyage to Jamaica. 
 That as to the blockade, the inaster was not bound to take the vague informa- 
 tion of vessels which he might casually m'eet, and which, if they had intended 
 . to'givie him that fair legal warning to which he was entitled, would have in- 
 dorsed it as Usual on his papers. That a vague expression used in conversa- 
 tion with his'crei*, in respect to an jevent merely- contingent, was too slight to 
 bear any inference whatever, especially as no other part of the discourse was 
 it! evidence; that the prohibited. goods were openly set forth in "his manifest, 
 ■ and his pointing them out to Captain Mudge was a proof of fairness ; that 
 Captain Mudge^ admitted he had " recomianended Jamaica " as well as St. 
 Thomas's to the master, and had even given him a'letter to take to that island, 
 evidently intimating "his impressio'li to be in favor of the choice which the 
 Atnerican had made, and which must have been on a supposition that, under 
 the circumstances, the prohibited articles would be treated with indulgence. ' 
 -That the manifest was. open to the inspection of the' boarding officer at Port 
 Royal ; that the master took it ashore to the general correspondent of the 
 owner at Kingston, as was natural, to consult him on the subject ; tliat the 
 memorial advised by him openly stated the nature of the articles in question, 
 and must have been seen bythe naval officer; that the delay in presenting it 
 t6 the governor was accounted for by the official forms it was obliged, to go 
 thrbugh ; that though' the ship had been twp or three days in port bpfore -it 
 was -seized, no attempt hdd been made to land any part of these articles, ,but 
 on the contrary, the previous steps taken by the master clearly negatived his 
 having any such intention^, and indeed would have rendered it impos- < 
 
 sible * for him tcf effect it without discovery ; and it )vas submitted [■*21 J 
 that when the circumstances clearly negatived the intention of land- 
 ing, the presumption of law arising from the mere bripging within the port, 
 fails. To show that the law makes a plain distinction between bringing within 
 a port, and importing into the body of a country, the language of the several 
 statutes was referred to — particularly of 4 Geo. III. c. 15, s. 36, and 45 Geo. 
 III. c. 57, s. 13. A passage also was cited from Reeves on Shipping, p. 256. 
 On the second point it was urged, that if any penalty attached to this transac- 
 tion, it could not extend at farthest beyond the confiscation of the ship and the 
 prohibited articles. It was stated that the learned judge of the High Court of 
 
xxu APPENDIX. 
 
 Admiralty had himself some doubl on this point ; that the very language, 6f 
 the statutes pleaded and relied on by the seizor was in fair construction to be 
 taken in the sense thus limited ; and that, in the present case, the statute law 
 must be taken in conjunction with the resolution or proclamation of the go- 
 ' vernor in council, which must now be considered as 'having all the force of 
 law. The origin and effect of these proclamations was thus traced. Shortly 
 after the American war, an intercourse took place between the United States 
 of America and his Majesty's colonies in the West Indies, under sanction of 
 certain orders in council, which were authorized by stat. 23 Geo. III. c. 39. 
 It became expedient, however, in times of emergency and distress, for the 
 governors of the respective colonies to authorize a more extended importation 
 of provisions than the king's orders in council allowed ; and this expediency 
 was formerly recognized by law in the 27 Geo. III. c. 7, since made perma- 
 nent. The power of the governors was, howevel", still restricted to importa- 
 tions in British ships ; but they often found themselves obliged (from the dan- 
 ger of famine) to overstep this restriction, and to admit American vessels to 
 import on the same terms as British. This practice was first adopted by 
 governors at their peril ; but by 34 Geo. III. c. 35, an indemnity was granted 
 to them for- all such proclamatiotis, and frequent bills to a similar effect were 
 afterwards passed, until the 46 Geo. III. c. Ill, which declares, that all acts 
 done by virtue of the king's permission to the governors to this effect, shall be 
 valid and legal, notwithstanding any former law or statute to the contrary. 
 
 But it appeared, in the present case, that the resolution of the governor in 
 council had been in virtue of the king's permission, and had placed American 
 vessels importing provisions on the same footing as British vessels ; and by the 
 28 Geo. III. c. 6, British vessels importing provisions and prohibited 
 [ * 22 ] articles would incur a forfeiture * only of the vessels and prohibited 
 articles ; the penalty, therefore, in the present case, could not ex- 
 tend to the provisions, they being protected by the proclamation, which must 
 now be considered not only as legal in itself, but as giving legality to all acts 
 done under its allowance and authority. 
 
 The court was of opinion, that there was no doubt as to the fact of importa- 
 tion ; that by the proclamation fof the governor in council, confirmed by 
 46 Geo. III. c. 3, American vessels importing provisions were placed on the 
 same footing as British vessels ; and that therefore the only question was as to 
 the extent of the penalty under the 28 Gep. III. c. 6, considering this as a Bri- 
 tish vessel ; that by the words in the first section of that statute, " no goods or 
 commodities whatever shall be imported or brought from any of the territories 
 belonging to the said United States of America into any of his Majesty's West 
 India islands, &c., under the pain of the forfeiture thereof, and also of the ship 
 or vessel in which the same shall be so imported or brought, together with all 
 her guns, furniture, ammunition,, tackle, and apparel, except tobacco, pitch, 
 tar," &c., &c., the forfeiture, in the case of a British ship, would extend only 
 to the ship and to the non-excepted articles ; and that as this vessel was placed 
 on the same footing by the proclamation, it must be subjected to the same 
 penalty. The court therefore affirmed the condemnation of the ship and pro- 
 hibited articles, reversed the condemnation of the cargo, and restored the same. 
 
APPENDIX. xxui 
 
 * Santa Anna, Larrinago. [ * 23 ] 
 
 F. 
 
 Note to page 181. 
 
 Order in Council, July 4, 1808. 
 
 ' His Majesty having taken into his consideration the glorious exertions of the 
 Spanish nation for the deliverance of their country from the tyranny and 
 usurpation of France, and the assurances which his Majesty has received from 
 several , of the provinces of Spain, of thein friendly disposition towards this 
 kingdom, his Majesty is pleased, by and with thp advice of his privy council, 
 to order, and it is hereby ordered — 
 
 1. That all hostilities against Spain, on the part of his. Majesty, shall imme- 
 diately cease. 
 
 2. That the'blockade of all the ports of Spaili, except such as may be still 
 in the possession, or under the control of France, shall be forthwith raised. 
 
 3. Tfiat all ships and vessels belonging to Spain shall have free admission 
 into the ports of his Majesty's dominions, as before the present hostilities. 
 
 4. That all ships and vessels belonging to Spain, which shall be met at sea 
 by his Majesty's ships and cruisers, shall be treated in the same manner as the 
 ships of states in amity with his Majesty, and shall be suffered to carry on any 
 trade now considered by his Majesty to be lawfully carried on by neutral 
 ships.' 
 
 5. TJiat all vessels and goods belonging to persons residing in the Spanish 
 colonies, which shall be detained by any of his Majesty's cruisers after the date 
 hereof, shall be brought into port, and shall be carefully preserved in safe cus- 
 tody, to await his Majesty's further pleasure, until it shall be known w^iether 
 the said colonies, or' any of them, in which the owners of such ships and goods 
 reside, shalL have made common cause with Spain against the power of 
 France. . 
 
 And the right honorable the Lords Commissioners of his Majesty's treasury, 
 his Majesty's principal secretaries of state, the Lords Commission- 
 ers * of the Admiralty, the Judge of the High Court of Admiralty, [ * 24 ] 
 and the Judge? of' the Courts of Vice-Admiralty, are to take such 
 measures. herein as to them may respectively appertain. 
 
 Steph. Cotteell. 
 26* 
 
XXV APPENDIX. 
 
 Byfield, Forster. 
 
 Note to page 188. 
 
 Order in Council, May 4, 1808. 
 
 The Eight Honorable George Canning, his Majesty's principal secretary of 
 state for foreign affairs, has this day notified to the ministers of .friendly and 
 neutral powers resident at this court, that his Majesty has judged it expedient 
 to establish the mosfvigorous blockade of the port of Copenhagen, and of all 
 the other ports in. the island o&2ealand ; and that the same will be maintained 
 and enforced in the strictest manner, according to the usages of war acknow- 
 ledged and allowed in similar cases. 
 
 Ltjna, Southworth. 
 
 H. 
 
 Note to page 190. 
 
 Order in Council, April 26, 1809. 
 
 Whereas his Majesty, by his order in council of 11th November, 1807, was 
 pleased, for the reason^ assigned therein, to order, that " all the ports and 
 places of France and l^pr 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 thenceforth, be subject to the 
 same restrictions, in poinl^of trade and navigation, as if the same were actually 
 blockaded in the most strict and rigorous manner ; " and also to prolilbit " all 
 trade in articles which are the produce- and manufacture of 'the, said countries 
 or colonies." And whereas his Majesty having been nevertheless desirous not 
 to subject those countries which were in alliance or amit)5. with his 
 [ * 25 ] TWajesty, to'feiny greater * inconveniences than was absolutely insepa- 
 rable from carrying into efect his Majesty's just determination to 
 counteract .the designs of his enemies, did make certain exceptions and modi- 
 fications expressed in the said order of the 11th November, and in certain sub- 
 sequent orders of the 25th November, declaratory of the aforesaid order of the 
 Uth of November, and of the 18th of December, 1807, and the 30th of 
 March, 1808. " • > - . 
 
APPENDIX. xxvi 
 
 ( 
 
 And whereas, in consequence of divers events which have taken place since 
 the date of the first-mentioned order, affecting the relation between Great Bri- 
 tain 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, icr 
 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 plp.ces under the government of France, together 
 with the colonies,- plantations, and settlements in the possession of those go- 
 vernments 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 merchandise 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 subseqtient 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 reject 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 permit- 
 ted 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 expiratioh of * the like intervals from the date of this order, as [ * 26 ] 
 were allowed for constructive notice in the orders of the 25th of No- 
 vember, 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 Vice-Admiralty, are to give the necessary directions herein as to 
 them may respectively appertain. 
 
 StEPH. CoTTRELIi. 
 
xxvii APPENDIX. 
 
 Elieabeth, Nowell. 
 
 K. . 
 
 Note to page 199.- 
 
 *' , Order in Council, May 17, 1809, 
 
 Whereas by an order in council, bearing date the 26th April, 1809, his 
 Majesty was pleased to direct, that the blockade imposed by that order should 
 extend 19 all port's and places as far north as the river Ems, inclusively ; his 
 Majesty, more distinctly to ascertain the places to be taken as included within 
 the limits of the said blockade, is pleased, by and with the advice of his privy 
 council, to order, and it is hereby ordered, that the said blockade shall be con- 
 strued to extend so as to comprehend the eastern as well as the western Ems ; 
 and to prevent all Vessels from sailing' into, or out of, that river by any channel 
 to the westward of the island of Juyst. And the righ't honorable th^ Lords 
 Commissioners of his Majesty's treasury, his Majesty's principal secretaries of 
 state, the Lords Commissioners of the Admiralty, the Judge of the High Court 
 of Admiralty, and the Judges of the Courts of Vice-Admiralty, are to give the 
 necessary directions herein as to them may respectively appertaiii. 
 
 'Steph. Cottrell. 
 
 Rapid, Fleming. 
 
 Note to page 228, 
 
 Translated, from the Butch language on hehalf of the Captors. 
 
 New yoRK,- 18th ^ept. 1806. 
 
 Sir and most esteemed friend — The letter and accompanying inclosures, 
 
 which I this day despatch to his Excellency the minister of colonies, via Ton- 
 
 ningen, will, I expect, be communicated to you. I trust my conduct will be 
 
 approved by his Excellency, and that his Excellency will be pleased 
 
 [ * 27 ] to explain himself, as * well with regard thereto, as respecting the 
 
 contents of my letter to Marshal Daandels. The safest channel of 
 
 correspondence is by way_ of England, or Paris, through the medium of the 
 
 Dutch minister, whom the American minister will not refuse- inclosing, a 
 
 letter for me in his despatch:' 
 
 The new English minister was received at Washington "by the secretary, of 
 state, and recognized as such ; but the latter left Washington shortly after- 
 r wards, which at least announces that they are in no haste to open the negotia- . 
 tions there. 
 
APPENDIX. xxviii 
 
 We have this day received intelligence of the capture of Flushing by the 
 English. I repeat my request that my letters may be enclosed under cover to 
 the house of Jacob Le Eoy & Son, of New York, except those which may be 
 despatched by way of France, through the channel of the minister. 
 
 My son-in-law, De Marolles, was appointed lieutenant-colonel and command- 
 ant of Batavia in the month of February, but has been permitted to reside at 
 Eyswick. 
 
 My cousin, Van Benseeken, was well on the 25th March. Be assured of 
 the permanent esteem of 
 
 Your most obedient humble servant and friend, 
 
 (Signed) R. G. Van Polanen. • 
 
 (Superscribed) 
 
 Mr. a. D'Ozy, Amsterdam. 
 
 Envelope, superscribed " To His Excellency the Minister of Marine and 
 Colonies, residing at Amsterdam," inclosing the following Despatch. 
 
 Sir — I have the honor to forward to your Excellency the inclosed duplicate 
 of my despatch to his Excellency Marshal Daandels, of the 20th ultimo, to the 
 contents of which I take the liberty of respectfully referring myself. 
 
 The political relations of the United States of America are now arrived at 
 that pitch, that it is become more problematical than ever whether it will be 
 possible on this side to preserve peace' with France and England, so far as the 
 events on the continent of Europe have an influence on the system of France 
 and England with regard to America. It is expected that the decisive action 
 of the French emperor with the Archduke Charles, whereof different issue was 
 expected after those of the 21st and 22d May, will inspire the English cabinet 
 with more moderation towards America, and it is therefore not consi- 
 dered impossible that the existing * negotiations with England may ' [ * 28 ] 
 be attended with a favorable issue. The consequences thereof with 
 regard to France can, it is apprehended, easily be anticipated, as well from 
 former declarations as from two letters published and distributed at Paris, in 
 the month of May, by leave of the government, and translated and published 
 here in the beginning of last month. These letters, which bear date at Paris, 
 on the 10th and 20th May, 1809, are signed D. C. and addressed to Mr. 
 Le Corate, contain many elaborate remarks on the former rasure of the em- 
 bargo with regard to England, and a positive declaration that France neither 
 can nor will suffer the Americans to trade with the continent of Europe in 
 colonial produce, as the English commerce would thereby be indirectly bene- 
 fited. 
 
 These publications, it is true, were suppressed in Paris by the police, after 
 receipt of intelligence of the non-confirmation of the provisional arrangement 
 between England and America ; but it is not the less regarded here as a proof 
 
-xxix - APPENDIX. ' . 
 
 of what may be expecteS on the. part of France, should America succeed in 
 ■ adjusting her differences with England. . ' , 
 
 It cannot, I presume, be indifferent either to your Excellency or the India • 
 government, to be infprmed what is" to be hoped with r.egard to thfe American 
 trade to Java,; neither can I forbear impressing upon your Excellency my f^rm 
 conviction that the exportation* of .spepie from hence to Batayja ' cannot be 
 effected on the former footitig, unless a conaderable deduction take place in 
 the price of coffee. ^ . , 
 
 In a private letter re'ceived by me ftom the Directpr-Oeijeral'Van Ysseldyke, 
 under the date of the 18th March, 1809, he observes that the contingents fur- 
 nished first by the ofRbers and people of ' proplerty, and afterwards "by the- 
 •Chinese and Moors, had enabled the 'Batavian government to retrieve itself for 
 the present year ; but that the prospects for the future were most deplorable, 
 should the American ijavigation not be revived again- , , . . 
 
 Should your Excellency attach equal importance, to this measure, speedier 
 hopes might be entertained in case your JBxcell&ncy thought fit to authorize me 
 to lower the price of coffee at Batavia, aftid whatever- reluctance 1 may fe^I in 
 •expressing myself more strongly with I'egard the'seio, I fnust beg leave to state 
 it to your' Excellency as my opinion, that unless the price'of coffee be lo|vered, 
 to 14 dollars, per picpl, even .under more favorable, circumstances than the 
 present, there will be no hopes of the resumption bf the former trade from this 
 place to Batavia. I have the honor to subscribe myself, with the most pro- 
 found respect and consideration, , ; ' ' - • . 
 
 Your Excellency's obedient servant, . :., 
 ' (Signed) " ' . R. G. Van PoLAiteN. 
 
 - New Yofk, 18th Sept. 1809. 
 
 Java coffee is still offering at 24 or 25 cents, with tl\e drawback 
 [*29] and at * long" credits, which brings the price up to,19 or 20-cents 
 per-pound, payable at three, four, and six months, but no purchagej-s 
 are to be met with. . ., ■- > ' ,. * 
 
 The brig Goldsearcher will not sail from hence until the 26th of next month, 
 and if not too long detained at Sourabaya, I may expect an answer ftom Mar- 
 shal Daandels in about six months. ■ / 
 
 COPY. 
 
 To his Excellency Marshal Daandels, Governor-Geijeral of Dutch India. 
 
 SiK — When, in the year 1807, by the capture and burning of the major 
 part of the private ships belonging to the inhabitants of Jaya, and the weak 
 state to which the few remaining ships of war were reduced, as well by, the 
 mortality as insubordination of their crews, his Excellency the then governor 
 foresaw a considerable augmentation of the general difficulties and risks with 
 which the eastern factories have hitherto been supplied with money and stores 
 by the Batavian government. The obstacles that presented themselves for 
 
APPENDIX. XXX 
 
 the ensuing year seemed rather' to have multiplied than diminished, and under 
 these circumstances the gdvernor saw no other means of averting the danger 
 ■ to which the factories wpuld be'exposefl, should they be deprived of -all sup- 
 plies from Java, than Jaying^ open the trade to those factories so far as the* 
 annual wants could be thereby provided for. 
 
 This measure, so repugnant to the old and then existing sjrstem of exclusion 
 of all foreign commercial intercourse with our eastern colonies, could be justi- 
 fied only by a conviction of the most urgent atid' unavoidable necessity, which 
 nothing but a concurrence of circumstances could bring about, and this neces- 
 sity was judged actually to .exist. 
 
 .The mode of accomplishing this object was next taken into consideration by 
 the governor-general, and as it was by no means his determination wholly to 
 lay open" the trade to the Moluccas, but only so far as it had become neces- 
 sary to the annual supply of those factories with specie and stores, which cotild 
 only be effected by contract in America. 
 
 This commission was conferred upon me by the governor and director-gene- 
 ral, without any communication with the high government, for the reasons de- 
 tailed in their despatch of* the 15th of November, 1807, to his Excellency the 
 minister of colonies. It , was deemed expedient, at my request, to limit me in 
 the execution of this commission, as well with respect to the quantity of spices 
 I might dispose of; as the prices to be stipulated for the same. At the consulta- 
 tions which took place on thi^ subject with the sabaandhar Van Braam, a per- 
 soii perfectly conversant with mercantile affairs, and myself, we observed that 
 the large quantity of spices calculated as necessary to be appropriated 
 in the liejuidation of the * stores for the eastern factories, could not [ * 30 ] 
 be disposed of in America, or at least hut at low prices ; thatthey 
 must therefore either be exported to Europe, or transported directly from Am- 
 boyna to China ; and we, regarding the Jatter as most advantageous for the 
 American merchants^ it was in a calculation of Mr. Van Braam's, founded on 
 the price of spices in China during the four last preceding years, hypothetically 
 put, that to enable an American merchant to gain as much on an expedition 
 to Amboyna as on a coffee freight from Java to America, spices ought to be 
 sold to him at the following prices, namely, cloves at $56'" per picol ; nutmegs 
 at #180; and mace at $335. 
 
 It was rightly conceived that it was not to be expected an American would 
 embark in an unusual speculation for a large quantity of spices, without a 
 prospect of deriving a profit at least equal to that arising from a cargo of 
 coffee, an article until then of direct sale, and which could not be expected of 
 a large quantity of spices. 
 
 In the private instructions given to me, Iwas limited to the mesne price at 
 which 'spices had been soM in 'China during the last four years, after deduction 
 of a moderate profit, to be calculated for the circuitous mode of fetching the 
 spices from Amboyna and Banda, and for every species of risk w£ich must 
 altogether be left {pr account of the owners pf the ships. 
 
 What compensation the American merchant might justly demand for the 
 
 . risk and hazard accompanying an expedition direct to, Amboyna, and from 
 
 thence to China, could not "be foreseen, much less calculated, at Batavia,&s it 
 
xxxi APPENDIX. 
 
 depended, in the first place, upon the risk to which the American trade in 
 general was exposed at the period of my arrival in America ; and, secondly, 
 upon those particularly connected with a voyage to Amboyna and China. 
 
 On my arrival in America, in the month of March, 1808, 1 found that the 
 general embargo laid on all American shipping ha3 put an entire stop to all 
 maritime commerce ; but in my conversation with the East India merchants, I 
 discovered that, had not this obstacle then existed, it would have been possible 
 for me to obtain the prices stated in Mr. Van Braam's calculation, after de- 
 duction of a moderate profit, and encumbered with the insurance. 
 
 In the first efiervescence consequential upon the rasure of the embargo, with 
 reference to England, in the month of March of the present year, and the ex- 
 pectation then entertained of the approaching adjustment of the differences 
 subsisting between the two nations, I have every reason to believe, 
 [ * 31 ] that had I then thought myself sufficiently authorized for that * pur- 
 pose, I could have executed my commission on a much more advan- 
 tageous footing than the present one ; but as it expired on the 1st of January, 
 of the present year, and Mr. Secretary Meyer had arrived here some time 
 before, charged with a special commission from your Excellency, without any 
 further orders reaching me on the part of your Excellency, I-fvas bound to con- 
 clude, either that your Excellency judged the execution of ray commission no 
 longer necessary, or that it had been committed to Mr. Meyer. 
 
 I deemed it incumbent upon me, however, on my arrival in America, to 
 acquaint his Excellency the minister of colonies with the object of my visit to 
 this country, but found no opportunity of so doing until the beginning of July 
 following, when I transmitted his Excellency certain documents belonging 
 thereto. A- Mr. Schuuzmann, just returned from the West Indies, and who, 
 as he affirmed, had been repeatedly charged with the conveyance of official 
 despatches, offered me his services for that purpose, and, notwithstanding he 
 was captured on his voyage to France, carried into England, and there de- 
 tained for four months, he succeeded in preserving the packet I confided to 
 him, and on the 16th of March, of the present year, delivered it into the hands 
 of his Excellency the minister. 
 
 In pursuance of Which, on the 13th of July, I received from his Excellency 
 the minister of marine and colonies, an order, under date of the 9th April, of 
 the present year, whereby I am authorized, should a rasure of the embargo 
 remove the obstacles which impeded me in the execution of my former com- 
 mission, in that case to proceed therewith anew. 
 
 To which is superadded the following extension of my former commission. 
 It is his Majesty's pleasure, that the several articles wanted by Marshal Daan- 
 dels should be despatched immediately through you. I will not embarrass 
 you with any restrictions as to the mode of its accomplishment, but shair con- 
 fine myself to observing that the payments mustbe made at Batavia, with this 
 further aflthority, namely : Notwithstanding any appointment to the situation 
 of counsellor in ordinary of Dutch India, to remain in America until further 
 orders, for the purpose of protecting the interest of the colonies, and attending 
 to and cultivating the relations between them and this country. 
 
 On receipt of this commission, I lost not a moment in trying whether it were 
 
APPENDIX. xxxii 
 
 possible to execute the first branch thereof, but prior to obtaining an answer to 
 certain letters, addressed by me to some merchants on the subject, intelligence 
 was received here, on the 21st following, of a declaration having been made 
 by the English government, that her minister in America, in his provisional 
 engagement, entered into with the American government in the month of 
 April, in the present year, had exceeded his instructions ; and that Holland, 
 the island of Walcheren, the sea-coast to the south of the Weser, as 
 well as France, the coast of Italy in the power * of the French, the [ *.32 ] 
 French and Dutch colonies, were again declared in a state of block- 
 ade. 
 
 Hereupon followed a proclamation of the President of the United States, on 
 the 9th instant, renewing the suspension of the American trade to England 
 and her colonies, whereby the disputes between the two governments are not 
 only again revived, but the following, amongst other concessions, now openly 
 demanded from the United States of America, on the part of England, namely, 
 the relinquishinent of all trade to the colonies of the enemies of England. 
 
 With France affairs are on no better footing ; all American property con- 
 tinues sequestered in France ; American merchantmen are everywhere cap- 
 tured and carried into port by French privateers in Italy and the states of the 
 church ; also American ships and cargoes are laid under sequestration, a mea- 
 sure adopted likewise in Holland, with regard to all colonial produce, which is 
 put under the king's lock, for the purpose of detention until after ^ general 
 p^ace. In Tonningen alone American ships and cargoes are as yet left free, 
 though the Danes and English have captured American vessels destined for 
 Sweden. 
 
 The horizon, therefore, cannot be more gloomy for the American maritime 
 commerce. Their navigation to South America, and certain Spanish and Por^ 
 tuguese ports of Europe, still continues uninterrupted ; but the only port left 
 them in the West Indies is that of St. Bartholomew, belonging to Sweden 
 Negotiations were, it is true, commenced in the beginning of last month, be 
 tween the American minister at Paris and Mr. De Hauterive, but this is regard 
 ed as a mere political manoeuvre to embarass the negotiations with England ; 
 and it is expected that on the part of France, in this negotiation, there will 
 again be made the former or similar propositions which have been already 
 deemed inadmissible, as incompatible with a strict neutrality. People begin to 
 be now pretty generally impressed with a conviction that it will no longer be 
 possible for this country to adjust her differences with one of the belligerent 
 powers, without incurring the hostility of the other ; that neutral rights cannot 
 otherwise be protected than by force of arms ; and that the time they had for 
 preparing themselves for that purpose has been passed in inactivity. 
 
 The only means of extrication from this equally difficult and humiliating 
 situation, would be that of choosing between France and England, but the 
 dissensions existing here will not allow of it. 
 
 The faction at present in power is too well convinced that a war with Eng- 
 land would soon introduce into the government the now prostrate party, and it 
 is to this personal consideration that the honor and interests of the nation are 
 sacrificed. A war with France would deprive the prevailing faction of many 
 EDW. 27 
 
xxxiii APPENDIX. 
 
 of their adherents, and give rise to connections with England ; 
 [ * 33 ] which, in the uncertain issue of war, it is wished to avoid. National 
 
 humiliations, experienced for so many years, are considered as 
 nothing ; but the main question with government and its supporters is — How 
 shall we keep our places .' The opposition against the general embargo, which 
 was beginning to threaten the existence of government, has taught it that 
 the body of the nation will not long submit to losses and sacrifices, and that 
 although parliamentary declaimers may bluster about fighting all the world, 
 and hazarding their lives and fortunes for the honor and rights of their coun- 
 try, yet, if it really come to that pass, the disasters of the country would soon 
 be thrown on the governors, and the loss of the present prosperous state as- 
 cribed to their ignorance, bad faith, or corruption. Hence the passive conduct 
 of the late President Jefferson, which will doubtless be imitated by the present 
 President as long as possible, though a doubt arises now more forcibly than 
 before, whether it be longer practicable ; and as it depends upon a change in 
 the dispositions apd plans of the two belligerent powers, this also wholly de- 
 pends upon great events, which can neither be foreseen nor calculated here. 
 In the interim, time has been again gained by creating a hope on the part of 
 the nation of a successful issue, as well of the negotiations with France, as of 
 those to be opened with a minister extraordinary expected here from England. 
 The merchants have got rid of the major part of their goods, and received 
 others in return, and the once overflowing granaries of the country people are 
 now nearly emptied ; in consequence of which the nation will be somewhat 
 more reconciled to the government for a considerable time to come. 
 
 I thought it necessary to enter into this concise statement of the political 
 situation of this nation, in order to show your Excellency what small hopes 
 may be entertained of the government of the United States being inclined, and 
 indeed ever deemed capable of causing its neutrality to be properly respected. 
 The passive and servile system of government, however dignified by its parti- 
 sans with the epithets of pacific and just, has too long and too pointedly mani- 
 fested its weakness to dread any thing else- therefrom than that in a moment 
 of confusion and despair, brought about by foreign and intestine differences, it 
 may, in spite of itself, come to resolutions which, in their consequences, might 
 give rise to an open rupture with France or England. Even should govern- 
 ment be able to avoid this, one may easily foresee, from what has already oc- 
 curred, that notwithstanding all treaties, and the customary protests and com- 
 plaints on this side, the American maritime commerce will still remain the 
 sport of one or both of the belligerent powers. 
 
 The trading towns in England continue overstocked with coffee and all 
 sorts of East and West India produce, and it is only by a clandestine trade 
 that part of it is introduced on the continent of Europe ; the commercial 
 
 interest in England, which has so strong an influence on the acts 
 [ * 34 J * of the government, urge it, with more than common vigor, no 
 
 longer to suffer the Americajis to continue supplying the enemies of 
 England with the produce of their colonies, which is equivalent to a complete 
 exclusion of England from that trade. It has been laid down by the^English 
 ministry, on various occasions during the present war, that a neutral nation 
 
APPENDIX. XXXV 
 
 can enjoy no more commercial rights in time of war, than are permitted to 
 her in time of peace ; and that therefore trading to the colonies of her ene- 
 mies, which were shut to her in time of peace, does not belong to the neutral 
 rights of America, and was only permitted by England through indulgence ; 
 but it was only lately that it was formally insisted upon on behalf of the Eng- 
 lish government, as one of the preliminary conditions to a reconciliation with 
 America, that this trade should be given up by the Americans ; and if we may 
 attach any credit to the official declaration of Mr. Canning, the English minis- 
 ter for foreign affairs, the present President of the United States, and secreta- 
 ries of state and finances, constituting the majority of the Ameiican ministry, 
 have already stated to the English minister in America, that they were pre- 
 pared on this side to make that sacrifice. 
 
 The southern and western states would lose nothing by it, and it is there 
 that the principal strength of the prevailing faction exists. 
 
 The country interest in all the states would also but inconsiderably suffer by 
 it ; and the only opposition that could be made to it would be that of the east- 
 ern states. I have therefore reason to apprehend that the President of the 
 United States was inclined to yield to the demand of England, though I at the 
 same time entertain hopes that the unseasonable notification thereof, and the 
 circumstance under which the same took place, connected with the timely in- 
 terposition of the French minister in America, will effect an alteration in the 
 disposition of the American cabinet. 
 
 As no safer ground can be taken in political prospects than that of conclud- 
 ing from the interests of the nation whose present system we undertake to 
 criticize, we have no other prospect in the state of estrangement between 
 France and America, than that the neutrality of this country, and a free 
 commerce, which must be the consequence thereof, (in all articles, contraband 
 alone excepted,) will not be better respected by France in future than it has 
 hitherto been. 
 
 The French government, sacrificing every thing to the great project, of 
 which the principal features are no secret, does not in the least suffer itself to 
 be impeded therein by the commercial interests of France and her allies. It 
 considers them as a temporary sacrifice, indispensable to the accomplishment 
 of its grand object — the humiliation and weakening of England. There ex- 
 isted, notwithstanding, at the commencement of this war, a motive for preserv- 
 ing peace with America, namely, the interest of the French colonies. 
 But all the transmarine possessions of France are * fallen into the [ * 35 ] 
 hands of the English, except Guadaloupe, Mariegalante, and the Isle 
 of France, which are under eflTective blockade by the English. France, so 
 long as the present system respecting foreign commerce is persevered in, has 
 no other interest in the preservation of peace with America than so far as her 
 political interests will not allow of this country's forming a closer connection 
 with England ; but she knows how reluctant America would be to proceed to 
 such a connection, and that even were she really to resolve upon it, and to 
 break with France, the least concession on her part would again shake such 
 resolution, and delay its execution. 
 
 England, on the other hand, has, for various reasons, a real interest in pre- 
 
xxxvi APPENDIX. 
 
 serving peace with America, but she calculates on the defencelessness of this 
 nation, and on civil dissensions, and the weakness of the government, which is 
 a consequence thereof; her present omnipotence at sea makes her look down 
 with contempt upon a nation whose sea-coast and mercantile towns are pro- 
 tected by nothing but incomplete fortifications, and whose navy consists of 
 seven frigates. England knows also by experience how passively this go- 
 vernment bears her ill treatment, and thinks she has only to take care she 
 does not too often exceed the measure thereof, and, if that happens, to offer 
 negotiations and indemnifications. Be it far from me, however, to conclude, 
 from the present statement, that the American government will be able to per- 
 severe in the system she has hitherto adopted ; on the contrary, I apprehend 
 the negotiations now subsisting with England and France will determine the 
 practicability of preserving peace with both in future. The negotiations may, 
 indeed, on both sides be protracted, .with a view to gain time, and to make use 
 of intervening circumstances, but they must lead to the development of the 
 dispositions of France and England, whether, and how far they will be inclined 
 to concur in the general principles already adopted, or hereafter to be adopted, 
 by America, as forming the basis of their .neutral rights; and the demand now 
 brought forward by England must definitively dispose of the most prominent 
 point in dispute with America, namely, the right of a neutral nation to trade 
 in time of war with the colonies of the enemies of England, from whence they 
 were excluded in time of peace. 
 
 In the event of an unsuccessful issue of the present negotiations, recourse 
 will not be had again here to a general embargo, which can only be maintained 
 on the part of government by measures of constraint and persecution, which, 
 as has already appeared, may be productive of domestic troubles. Should 
 England or France, therefore, persevere in refusing henceforth to respect the 
 neutral rights of America, I cannot expect any. other than that this government 
 will, find itself constrained to yield to the desires of the merchants, by permit- 
 ting them to carry on their trade sword in hand. This, although 
 [ * 36 ] no declaration of war, would * amount to nothing less than a state of 
 hostility towards that nation against which it were exercised. But it 
 is a middle course to which the two parties wherein this country is divided will 
 more readily agree, as no connection will thereby be formed with either of the 
 belligerent powers, and a channel consequently left open for accommodation. 
 
 There are persons who conceive that the present suspension of com- 
 merce with England will be the only means of bringing- her to reason ; but, so 
 long as a neutral port is open, the English will by that channel get American 
 produce, and introduce English manufactures into America ; America will 
 thereby be obliged to sell her produce cheaper, and pay dearer for her sup- 
 plies. The English navigation would, moreover, be benefited by it. 
 
 However rash it may be, especially in these times, to form a positive opi- 
 nion, I conceive it incumbent upon me to concur with those who assert that 
 America will not be able to adjust her differences with the two principal 
 powers in Europe on permanent grounds, and that should it be accomplished 
 with the one it would involve a state of hostility with the other. This" is 
 the avowed opinion of all who have distinguished themselves as statesmen in 
 
APPENDIX. xxxvii 
 
 this country. Formal declarations of war are not expected from either party, 
 but (and this is the important point of view I take of political events) the com- 
 merce of America will continue to be the object of the violence and rapacity 
 of the one or the other side. Her extensive commerce will in future be most 
 narrowly circumscribed by prohibitory laws and regulations on the continent 
 of Europe ; by the uncertain state of her political relations, and the violated 
 sanctity of all national engagements ; by blockades, proclamations, and seques- 
 trations, to which the belligerent powers reciprocally resort ; and by distrust 
 of the good faith of any nation, while the violent hate which increases more 
 and more between the principal parties in this devastating war, gives rise to 
 an infuriate spirit of animosity and revenge, to which both the national inte- 
 rests and every other consideration are sacrificed. 
 
 And it cannot otherwise be expected, but that a defenceless nation, whose 
 commerce and spirit of enterprise is viewed with increasing jealousy, and by 
 both parties regarded as the means whereby its antagonist is benefited, (either 
 by both, or alternately by one of them,) will continue a victim to the interests 
 or the passions which, in the present violent contest between two of the most 
 powerful people, constantly succeed each other, and if we add hereto, that a 
 general peace is not within the reach of present existing prospects. But your 
 Excellency will not be surprised if, under my present conceptions and impres- 
 sions, I deem it incumbent upon me to omit nothing to put your Excellency in 
 possession of a statement of affairs so immediately affecting the eastern colo- 
 nies of our mother country. 
 
 But this is not the only motive which induced me to adopt the determination 
 of originating an opportunity of commencing that official correspond- 
 ence * with your Excellency, to which I am equally bound and enti- [ * 37 ] 
 tied by the gracious order of his Majesty, and the relation in which 
 I stand with reference to the India government. 
 
 The subject respecting which I feel myself obliged to trouble your Excel- 
 lency with a representation of, is too important for me not to exert myself to 
 possess your Excellency, as speedily as possible, with my observations thereon. 
 The great importance attached by me to the revival of the American trade to 
 Java, and a fall in the price of Java coffee, without which I hold myself as- 
 sured no hopes are to be entertained thereof, is founded on my apprehension, 
 that it will not be much longer possible to carry on the public business in our 
 eastern possessions without a supply of specie, and other articles indispensable 
 for that purpose ; a supply of the latter can, if necessary, be \^holly or par- 
 tially replaced by other articles in hand, or attainable in India. And I think 1 
 can pledge myself to your Excellency, that this supply, under almost every 
 possible circumstance, will not altogether be suspended, especially as people 
 here will be convinced of the great want thereof in Java, and consequently 
 entertain hopes of deriving great advantages therefrom. The expeditions, 
 moreover, can be made from hence in small fast-sailing vessels, and will not 
 require the investment of any great capital ; but it is quite otherwise circum- 
 stanced with regard to the want of specie. The only means by which the In- 
 dia government can either be supplied with a sufficiency of specie, are to 
 accept the proposition made (if I am correctly informed) by the Java princes, 
 
 27* 
 
xxxviii APPENDIX. 
 
 but as to the expediency of which many serious doubts exist ; or to impose 
 upon the former and present officers an obligation to assist the government, 
 and to make a considerable reduction in the salaries of the latter, as to the pro- 
 priety of which no doubt can be entertained, seeing fortunes in India are, with 
 very few exceptions, acquired, either directly or indirectly, at the expense of 
 the country. And it cannot be thought necessary, at a period when the ex- 
 istence of his Majesty's colonies is at stake, that the officers should continue to 
 live in luxury and abundance, and be moreover so pensioned by the govern- 
 ment as to enable them to improve their fortunes, and indifferent to the gene- 
 ral disaster, to withdraw themselves from the danger. But all these expedients 
 are but of a temporary and inadequate nature. The specie issued by the 
 government and its treasury is, for certain reasons well known, not brought 
 into general circulation again ; at least not such as government itself can con- 
 trol ; the importation of a new supply of specie is, therefore, indispensable ; 
 the mother country cannot by any possibility provide the same, there existing 
 at this moment no neutral power in Europe ; and it is from the United States 
 of America alone, therefore, that a supply can be expected, unless the present 
 state of affairs should give rise to a greater degree of liberty and security to 
 the American navigation. 
 [ * 38 ] * Even supposing this were the successful "result of the critical and 
 hazardous state of the existing political relations of America, it is not 
 to be expected that the Java coffee trade can be revived with any prospect of 
 advantage, so long as the price is kept up in Java at $18 per picol ; and this 
 is what I have principally proposed to myself demonstrating to your Excel- 
 lency herein. 
 
 The eagerness with which Java coffee was sought after during the last and 
 present war, principally by the Americans, induced the government there 
 gradually to enhance the price ; until the year 1807, they had no reason to 
 doubt the propriety of such advance, notwithstanding several capital mercantile 
 houses, as I am credibly informed, h'ad, after the first six months of that year, 
 already relinquished their trade to Java on account of such enhanced price, a 
 circumstance probably unknown at Batavia, owing to the embargo laid on 
 American shipping in the month of December in that year. 
 
 Your Excellency, however, will have had ample opportunity to judge of the 
 propriety of such advance, since your Excellency must have found that, not- 
 withstanding the rasure of the general embargo, and the strong expectations 
 entertained between the beginning of March and the 21st of July of the present 
 year, of an adjustment of the differences with England, no expeditions have 
 been made from hence to Batavia, save one large and three small vessels, and 
 that principally, if not solely, from a hope of realizing a considerable profit on 
 the outward cargo. 
 
 In addition to the reasons that already existed in the latter end of the year 
 1807, for giving up the Java trade on that footing^ several others have since 
 occurred, the enumeration of which at present would be perfectly useless, as 
 my object, amongst the existing and possible future circumstances of this war, 
 and the influence of political events and commercial interests is, to represent 
 to your Excellency, with regard to coffee, that it cannot be supposed, amongst 
 
APPENDIX. xxxix 
 
 all these surprising revolutions, the events of late years, and those that may 
 probably take place this year, both in Europe and the West India colonies, 
 that the value of this produce should continue the same. Many of these events 
 have already had considerable influence thereon, and others that have arisen 
 therefrom must have a more lasting influence on the cultivation and price of 
 coffee. 
 
 The interest I have from earlier connections uniformly taken in the welfare 
 of our colonies in the island of Java, which for nearly these fifteen years past 
 has been exclusively indebted to the sale of coffee for its existence, has in- 
 duced me never to lose sight of this object, and the relation in which I now 
 stand, with reference thereto, makes it incumbent upon me to obtain more pre- 
 cise information in respect thereof. The data on which the following calcula- 
 tion was founded were for the most part obtained from intelligent 
 merchants unconnected with the coffee trade, and * on a comparison [•* 39 ] 
 of the various answers I have received to queries proposed, it appears 
 to me that 
 
 The important event which originally occasioned the rise in the price of 
 coffee, was the devastation of the French part of St. Domingo. That colony pro- 
 duced to Eutope, down to that period, 72,000,000 pounds of coffee ; Jamaica 
 1,000,000, and the remaining English islands 2,500,000 ; the Spanish colonies 
 1,000,000; Martinique, Guadaloupe, and other French islands, 3,500,000, 
 constituting together 80,000,000 pounds of coffee. 
 
 The destruction of the major part of the plantations in St. Domingo has re- 
 duced the produce there from 72,000,000 to 15,000,000 pounds, but it has 
 tended to encourage the cultivation of that article in other places, and it is 
 calculated that it produces as follows, namely : 
 
 Jamaica, .... 
 Antigua and other English islands, 
 Guadaloupe, &c., . , . 
 Cuba and Porto Rico 
 Spanish South America . 
 The Brazils and Cayenne, 
 
 26,000,000 
 8,000,000 
 9,000,000 
 9,000,000 
 
 15,000,000 
 2,000,000 
 
 To which being added the 15,000,000 now produced by St. Domingo, it 
 appears that the produce of coffee in the above colonies has increased since 
 the year 1790, from 80,000,000 to 84,000,000 of pounds. 
 
 With regard to the growth of coffee in Surinam, Demarara, and Berbice, I 
 have not been able to obtain any correct account ; but it is asserted that the 
 produce of Surinam has experienced an annual increase of three or four mil- 
 lions of pounds, from which it is to be inferred that notwithstanding the dimi- 
 nished produce of St. Domingo, the growth of coffee in the West Indies has 
 increased since the year 1790, from 80,000,000 to 88,000,000 of pounds. 
 
 It is not apprehended that the produce of coffee in Jamaica and other Eng- 
 lish and French colonies, will experience a further increase, though it is possi- 
 ble that it may in Cuba, Porto Eico, and in Spanish and PortuguesOj South 
 America ; where the soil and other circumstances are peculiarly favorable to 
 
xl APPENDIX. 
 
 the cultivation of that article, insomuch that the expenses attending the same 
 are calculated to amount to one third less, independently of their being ex- 
 empt from tornadoes and other casualties of the climate. 
 
 Even supposing there were any error in the hereinbefore enumerated round 
 numbers, I hold myself assured that it would not invalidate the hypothesis, that 
 the diminished produce of St. Domingo is amply compensated by the increased 
 produce of other colonies, and that such deficiency will still more increase in 
 the Spanish and Portuguese colonies, is by all reports from thence placed be- 
 yond all doubt. 
 
 It is even expected here that too great progress will be made therein, and 
 this prospect will be realized should the assurance prove well founded 
 [* 40 ] * that was formerly given to me in"1795 and 1796, by several emi- 
 grant planters of St. Domingo, and, amongst others, by Mr. Morean 
 de St. Mery, (the historian of that island, whose otherwise highly esteemed 
 work, from its prolixity, I must presume, is but little read in Europe,) namely, 
 that in 1790 the cultivation of coffee in general had so much increased, that it 
 could no longer be disposed of in Europe but at extremely low prices, and 
 produced but an inconsiderable profit to the planters in the West Indies. 
 
 They might, at that time^ have conceived they had proceeded too far, and 
 if it then took place, they have again fallen into the same error ; but it is not 
 perceptible from the irregular supply of Europe, and the immense quantity of 
 coffee locked up in the English and American warehouses. 
 
 And if we add hereto, that the prosperity of the inhabitants of the European 
 continent has, since 1790, been considerably diminished by so many succes- 
 sive and apparently endless wars, and that even the disasters consequential 
 thereon will for many years be felt ; that so long as the present maritime war 
 shall continue to last, even under the most advantageous circumstances in 
 which America may occasionally be placed, the same will not be permanent. 
 Freights and insurance will be extremely high, and the prices of coffee expe- 
 rience a considerable fluctuation, so that on a coffee speculation to Java, a 
 year at least must elapse ere it can be brought to an European market, by way 
 of America, a circumstance that makes this trade subject to infinitely more 
 casualties than that with the neighboring West India islands and South Ame- 
 rica. But I hold it incumbent upon me to impress upon your Excellency my 
 most conscientious conviction, that under all the circumstances no hopes can 
 be entertained of the Americans bringing away the immense stock of coffee 
 now on hand in Java at $18 per picol. 
 
 I do not fear, on the responsibility which I feel is attached to this declara- 
 tion, positively assuring your Excellency of this ; but were I to be called upon 
 to state at what price coffee ought to be sold at Batavia, I feel T must confess 
 some reluctance at nnaking a formal declaration with regard thereto ; indeed, 
 I conceive it more proper that your Excellency should yourself be enabled to 
 adjust this point, by a statement of the price at which coffee can now be ob- 
 tained in the English and Spanish islands, and Spanish and Portuguese South 
 America. 
 
 I understand the average price hitherto given is 16 cents per pound ; but 
 that coffee is not shipped with a view to profit, which alone is expected to arise 
 
APPENDIX. xli 
 
 on the outward cargo from hence. And I well know that this trade is carried 
 on in small, light, and unexpensive vessels, consequently, also, with the invest- 
 ment of a small capital, and completed in less than two or three months. The 
 insurance for these voyages is seldom higher than one per cent, to Batavia and 
 back, but now 15 per cent. 
 
 * The ordinary price of coffee in the West Indies and South Ame- [ * 41 ] 
 rica, as accepted in payment for cargoes transported thither, is in the 
 proportion of 16 to 14| cents, at which the pound is calculated in Batavia, at 
 $18 per 125 pounds, and this alone proves that this price is computed too high 
 at Batavia. In the West Indies the Americans are compelled to accept coffee 
 and other produce, but a speculation in that article to Java is a voluntary act, 
 and merely undertaken with a view of deriving an advantage therefrom. 
 
 But few ships import merchandise into Batavia, and seldom is any thing got 
 by it. In general, and with very few exceptions, is the profit of an expedition 
 solely expected on the return cargo. 
 
 The price of coffee is now extremely high in Europe ; but I have seen a 
 letter from Amsterdam, dated in the month of May, stating that the arrival of 
 a few ships would probably reduce the prices to 18 stivers and lower ; neither 
 can it be expected, even should the supply and importation be subject to no 
 obstacles, that the former general consumption of coffee will again take place, 
 so long as the same does not fall into the former prices. 
 
 There is an advantage of upwards of seven per cent, in favor of the Ame- 
 ricans, in the difference of the weight in America and Batavia, but which is 
 absorbed by the indraft, particularly if coffee is laden green. In Holland the 
 difference in the weighing is 10 per cent, against the importer from hence,- 
 the tare 7 a 8, and a turn of the scale, as it is there called, is moreover given 
 of 1 or 2 per cent. 
 
 From various original account sales from thence, it appears that in general 
 a loss is sustained on unloading at Amsterdam, 
 
 }'" 
 
 On coffee, in small bales, of 20 a 22 per cent. 
 
 " " in large " 19 a 20 " « \ In the weight, 
 
 " « in Hhds. 16 a 17 " 
 
 The freight from hence to Amsterdam is about . . 10 
 
 Commission, ........ 2-J- 
 
 Guaranty of the responsibility of the purchaser . . 1 
 
 Import duties, 3 
 
 And various petty charges, ...... 1 
 
 In case the mesne difference on the discharge in Holland be computed at 
 18 per cent, in the weight, and the other charges hereinbefore enumerated 
 added thereto, a cargo of coffee from hence is encumbered with 35| per cent, 
 from which, as usual, is further deducted from the amount of the sale 4 per 
 cent., which together constitute a charge of 39^ per cent. In case the bills of 
 exchange for the cargo can be disbursed at par, which cannot take place in an 
 extensive commerce with Holland, arid sometimes occasions a loss of 5 per 
 cent, to which being superadded the insurance of from 3 a 50 per 
 cent, (now from 10 a 15 per cent.) the preceding calculation * closely [ * 42 ] , 
 approximates to the rough estimate whereon they generally act here, 
 
xliii APPENDIX. 
 
 namely, that coffee must be be sold 50 per cent, higher in Amsterdam, before 
 any profit can be derived thereon on exportation from hence. 
 
 This does not include the import duty of 5 per cent, in America, which, by 
 the exportation within the year, by way of drawback is returned, with a small 
 deduction for the custom-house. 
 
 The following is, I trust, a tolerable accurate account of the difference in 
 the sugar crops of 1790 and 1808 : 
 
 1790. 
 
 In the English islands, . . . 202,000,000 pounds. 
 
 St. Domingo, 220,000,000 " 
 
 Guadaloupe and Martinique, . . . 40,000,000 " 
 Spanish colonies, .... 50,000,000 " 
 
 Together, 512,000,000 pounds. 
 
 With regard to the Dutch colonies and the Brazils, I have not yet been able 
 to obtain any precise information. 
 / 
 
 1808, 
 
 English islands, . 
 Martinique, Guadaloupe, &c. 
 Spanish colonies, 
 St. Domingo, 
 
 280,000,000 pounds. 
 
 90,000,000 « 
 280,000,000 « 
 
 30,000,000 « 
 
 Together, 680,000,000 pounds. 
 
 Exclusive of Demarara and the Brazils, where the cultivation of sugar is 
 considerably increased, wfiich makes a difference in favor of the present period 
 of 178,000,000 of pounds. 
 
 Were it not for the prohibition of the distillation of spirits from grain in Eng- 
 land, and^the permission of the use of sugar, the price of that article could not 
 have maintained itself; but the demand is, in some measure, hereby equalized 
 between the crop and the consumption. 
 
 A large quantity of Jamaica and St. Croix sugars were imported into the 
 United States, and preferably used, at a mesne price of $6 per cwt. ; white 
 Havana sugars enjoy the same privileges, and are now sold at the uncom- 
 monly high price of $11 a $13 per cwt. Batavian sugars, which are pecu- 
 liarly adapted for refinement, continue selling at $2 to #3 less than the former, 
 are now scarce and at $8 50, and therefore cannot be imported to the same 
 •advantage as the West India sugars. 
 
 So far as my knowledge extends of the cultivation of sugar in Java, I 
 have reason to presume the price of $4 per picol cannot well be 
 [ * 43 ] * diminished, neither do I conceive there exists any necessity for it 
 should the price of coffee be lower. 
 
 The cultivation of sugar in the West Indies, also, is more and more extend- 
 ed ; as likewise in Louisiana, now belonging to the United States of America. 
 In that country it has already increased to 7,000,000 pounds ; and on the lands 
 
APPENDIX. xliv 
 
 adapted thereto, it is calculated that 100,000,000 pounds of sugar may be pro- 
 duced, and as they pay no import duties, such exemption irlay be considered 
 as a premium of f2J per cwt., from whence it is to be foreseen, that in a 
 few years no other than Louisiana sugar will be consumed in this country. 
 After coffee, pepper next comes into consideration, and the cultivation thereof 
 might be encouraged ^y a diminution of the price at Poeloe-Pinang ; it was 
 last year sold at $5 or $6, and on the coast of Sumatra for $4 or f 5 per picol ; 
 had they been disposed to encourage that article in Java, it would, in my hum- 
 ble opinion, have been expedient in some measure to equalize the price thereof 
 in future with that at which pepper is attainable at Poeloe-Pinang, of which it 
 is not difficult to be informed in Batavia. 
 
 It is neither compatible with sound reason nor commercial policy, that under 
 all the vicissitudes to which commerce, especially in these unprecedented 
 times, is exposed, Indian produce should bear the same price, without taking 
 into consideration the altered and perpetually varying circumstances. I at the 
 same time too strongly feel how difficult it is for the India government per- 
 fectly and at all times to be acquainted with the market price of India produce, 
 both in America and Europe ; but when apprised thereof, and it is evident 
 that the established prices in India bear no proportion to those in Europe and 
 America, it seems to me, with all due respect, that it ought to be attended 
 either with an advance or lowering of the produce. The India government 
 cannot avail itself of any prospects founded on events within its own knowledge 
 and probability in the present times, subject to too great and speedy vicissi- 
 tudes, and these events are not, as formerly, succeeded by the usual conse- 
 quences. 
 
 Political calculations and prospects are now little less than idle chimeras, 
 and the nature of the present war has a more than common influence on com- 
 merce ; the present (formerly unheard of prohibitions and regulations) are of 
 that description, and so unexpectedly promulgated and again modified, that 
 one cannot rely or confide in any thing in commerce. 
 
 Confining myself to the present proposition, I must leave it to the judgment 
 and wisdom of your Excellency to conclude whether the present political situ- 
 ation of Europe and America, and general state of cultivation of coffee, furnish 
 a favorable prospect, that this product can permanently continue at a high 
 price, should the trade therejn be in future exposed to no extraordinary inter- 
 ruptions, vicissitudes, and risks. It then remains for your Excellency to de- 
 termine whether the exportation of Java produce be indispensably 
 necessary to the supply of the various wants of the * East India colo- [ * 44 ] 
 nies, and whether hopes can be entertained thereof under the existing 
 and possible future circumstances, at the present high price of produce. 
 
 The data hereinbefore laid down are as accurate as possible in matters (if 
 this description ; and I trust I employed every possible precaution in the col- 
 lection of my information. " 
 
 From this information, I have formed the following calculation, which may, 
 I apprehend, serve as a basis in case your Excellency should hereafter adopt 
 the determination of modifying and regulating the price of India produce in 
 Batavia by that in America. 
 
xly APPENDIX. 
 
 The price of freights and produce is the present price ; the insurance sup- 
 posed at the usual rate, and not at 15 per cent., under which it cannot now be 
 obtained. 
 
 Calculation of a commercial enterprise to Batavia, by an American ship of 
 350 tons, laden with 5,000 picols of coffee, on delivery in Ainerica, supposed 
 to produce , 
 
 635,000 pounds, and sell for 23 cents per 
 
 pound, amounting to $143,750 
 
 Charges. 
 
 Purchase of 5,000 picols a $18, . . .$90,000 
 Insurance on $100,000 a 10 per cent. . . 10,000 
 Interest on $90,000 a 7 per 'cent, for 12 months 6,300 
 Import duty a 5 cents per pound, . . . 37,500 
 If recovered by drawback, it is deducted from 
 
 the 23 cents sale value. 
 Freight of the ship out and home, . . . 24,000 
 
 :petty charges, 500 
 
 Bags, 7,000 a 25 cents, .... 1,750 
 
 170,050 
 
 Loss, $26,300 
 
 A CARGO OF SUGAR. 
 
 5,000 picols in Batavia, calculated here to deli- 
 ver 5,580 quint, of 112 lbs. 
 Deduct 5 per cent, tare, 280 
 
 Kemain . . • 5,300 quint, a $8 50, . . . $45,050 
 
 r * 45 ] * Charges. ^ 
 
 Purchase of 5,000 picols, at $4, . . • $20,000 
 
 Insurance on 23,000 a 10 per cent. . . 2,300 
 
 Interest on $20,000 a 7 per cent. . . . 1,400 
 Import duty on 593,600 lbs. or 5,300 quint, at 
 
 21 per cent 14,840 
 
 Freight of a ship of 300 tons, capable of car- 
 rying 5,000 picols sugar, .... 20,000 
 
 Petty charges, 510 
 
 ^ ^ 59,050 
 
 Loss, . . .' • ■ $14,000 
 
 A CARGO OF PEPPER. 
 
 5,000 picols, calculated here to deliver 610,000 
 pounds. The present price is 20 cents per 
 
APPENDIX. 
 
 xlvi 
 
 pound, in consequence of the suspension of 
 the supply ; but when it takes place again, as 
 before, it will fall to the former price of 16 
 cents, which is thus here calculated, and 
 makes the sales of this cargo amount to . . . 
 
 Charges. 
 
 5,000 picols at Batavia, a $8, . . . $40,000 
 
 Insurance on $45,000 a 10 per cent. . . 4,500 
 
 Interest on $40,000 a 7 per cent. . . . 2,800 
 
 Import duties on 610,000 a 6 cents, . . 36,600 
 
 Freight of a ship of 400 tons, . . . 28,000 
 
 8,000 bags a 25 cents, 2,000 
 
 Petty charges, 700 
 
 Loss, 
 
 $97,600 
 
 114,600 
 $17,000 
 
 The Batavian picol ought to make here 133 pounds ; but it is found by expe- 
 rience, that by drying, shrinking, dust, &c., it loses on landing in America, 
 namely — On a picol of coffee, from 6 to 8 per cent. ; pepper, 10 per cent. ; 
 sugar, 1 1 per cent. ; and hereon is the calculation founded. 
 
 * With regard to the coffee trade in general, I must further remark, [ * 46 ] 
 that the gross profits formerly obtained therein when the price was 
 lower at Batavia, gave rise to the former extensive trade and immense de- 
 mand for this article down to 1807 ; that the decrees issued in that year by 
 the French emperor, on behalf of himself and his allies, the sequestration of 
 American ships in the French and Italian ports, and the general embargo of 
 fifteen months in America consequential thereon, caused many coffee traders 
 to sustain losses with which they are still threatened ; that in the town of Bal- 
 timore alone, 10,000,000 pounds of coffee are yet on hand, and the considera- 
 ble shipments of this article for Europe from most of the American ports since 
 the month of March, was an enterprise of the most hazardous description, but 
 that many merchants determined thereon, merely with a view to secure their 
 right of drawback ; the impression of the anxiety and losses thereby occasioned 
 will not speedily be effaced, even though the political relations of America 
 with Europe should take a somewhat more favorable turn, since apprehensions 
 might even then continue to be entertained of a sudden renewal of the former 
 violent and arbitrary decrees, against which, seeing the spirit that now ani- 
 mates the belligerent powers in Europe, no pledge is to be found. 
 
 I would not, however, be so understood, as if, under the existing circum- 
 stances, from the price of India produce, the Java trade would continue wholly 
 suspended. 1 have reason to suppose and expect the contrary, from the spirit 
 of enterprise and rashness which sometimes characterize the American com- 
 merce. I have, therefore, expressed myself determinately herein, with regard 
 to the former extensive commerce of this country with Java ; and I trust that 
 the observations here submitted will be solely applied thereto. 
 EDW. 28 
 
xlvii APPENDIX. 
 
 It is for your Excellency to judge whether the wants in India, particularly 
 of specie, and the quantity of coffee already collected in the warehouses, has 
 not made the renewal of the fornner trade of the Americans, whereby the an- 
 nual stock was annually disposed of, a desirable if not indispensable measure. 
 It will not have escaped your Excellency's observation, that, impressed with a 
 conviction of such indispensability, I have exerted myself to propose to your 
 Excellency the only means that can give rise to the renewal of the American 
 trade to Java, when other favorable circumstances concur thereto. 
 
 To expect perfect security for the American maritime commerce during the 
 present war, would be the height of folly, and nobody flatters himself there- 
 with ; but a greater security than they now enjoy may be the consequence of 
 the existing negotiations, should the events in Europe favor it ; and the mo- 
 ment any reliance can be placed thereon, I shall lose no time in apprising 
 your Excellency thereof. 
 
 I shall leave nothing unattempted to possess your Excellency in general 
 with every event that may have any influence on the American trade 
 [*47] to * Java, whenever opportunity offers and they come to my know- 
 ledge ; I am not, I apprehend, incorrect in the supposition I have 
 formed, that your Excellency will attach importance thereto, by the adbption 
 of measures in India, and issuing orders for my direction and information in 
 this country. My commission from his Excellency the minister of marine and 
 colonies, empowers me to expedite such articles as your Excellency may have 
 occasion for ; but however conversant I may be in general with the demands 
 of Java, I am extremely anxious, in order to the obviating of all mistakes, to 
 be furnished with a special order from your Excellency, seeing the possibility 
 of your Excellency having already contracted engagements in the interim ; I 
 shall, when an opportunity offers for that purpose, order the supply, without 
 binding your Excellency to the acceptance thereof. 
 
 My commission, recently renewed by his Excellency the minister of colonies, 
 leaves me at full liberty, in proportion to the risk connected with the naviga- 
 tion and trade from hence to Amboina and Banda, to fix the price of the spices 
 expressed in my former commission. But I could wish to receive your Ex- 
 cellency's directions on this point also, namely — 
 
 Whether your Excellency deems it indispensably necessary to proceed 
 therewith ; if so, what quantity, and in what proportion, on that footing, am I 
 to be at liberty annually to dispose of until further orders, and at what particu- 
 lar prices. 
 
 With regard to the latter point, it is calculated here, that spices at Amboina 
 (seeing the risk of this navigation, to which the Americans have been hitherto 
 unaccustomed, and the increased distance) ought to be charged from 15 to 20 
 per cent, lower than at Batavia, with an addition of the difference in the insur- 
 ance between Batavia and Amboina. 
 
 This difference is very considerable, chiefly because the English may in 
 some measure regard the navigation from hence to Batavia as a customary 
 voyage in time of peace, at least so they maintain here ; but the navigation to 
 the Moluccas is so universally known never to have been permitted by the 
 Dutch government, that one must expect that an American vessel intercepted 
 
APPENDIX. xlviii 
 
 in that trade by an English privateer would be liable to confiscation ; on this 
 principle it is also that the insurance from hence to Sourabaya is higher than to 
 Batavia, though not in the proportion of that from hence to Amboina. 
 
 Intelligence also has been received here that an American ship in the Ma- 
 nilla trade, bound for Canton, has been captured and carried into port by an 
 English frigate, on the ground that such voyage was to be considered as com- 
 prehended under those prohibited by the instructions of the English admiralty, 
 whereby trading from one foreign port to another is not permitted to neutrals. 
 
 It was these considerations, which in the present state of affairs I 
 was * obliged to avail myself of, that induced me, after long nego- [ * 48 ] 
 tiations, at length to close with the highest offer Jhat was made me 
 for the present expedition. ^^ 
 
 On inquiry it appears that the last prices at Batavia, in 1808, were; $77 per 
 picol of cloves, nutmegs f218, mace $450; and I conceived myself justified 
 in taking for same, under existing circumstances, $40 per picol cloves, nut- 
 megs $125, mace $250, to be fetched from Amboina. 
 
 Even at these prices they could not be prevailed upon, notwithstanding the 
 houses interested therein are ranked amongst the first in New York, to extend 
 this expedition beyond the sum of $60,000 on account of the critical state of 
 affairs between America and England, and the refusal of the insurance com- 
 panies and underwriters of New York and Philadelphia to insure even this piti- 
 ful sum under 40 per cent., which could only be done at Baltimore at 25 per 
 cent. 
 
 It is owing to this premium of insurance that I have been obliged to allow 
 25 per cent, advance on the goods, with regard to which I have followed the 
 list of stores for Amboina, furnished me at Batavia, in the proportions admitted 
 by the capacity of the vessel, those goods regarded by the underwriters as 
 contraband excepted. No reliance is placed here on my specification of the 
 prices of spices in China during the four years preceding 1806, they not cor- 
 responding with the advices from thence, and they are so far acquainted with 
 the trade in that article as to know that the prices thereof vary considerably in 
 China ; spices belonging as little there as here to the current articles in trade. 
 
 Many American traders know by experience how eager people have been 
 at Batavia of late years to get rid of their stock of spices, and that they even 
 forced them upon some of them ; as the Americans have also been repeatedly 
 tempted to be engaged, and some of them actually employed in carrying spices 
 from Amboina to Java on account of the state, it is no secret to them (so little 
 can we suppose any thing unknown to them relating to the internal state and 
 commerce of our Indian colonies) with what expense, difficulties, and risk, the 
 transportation is attended. 
 
 As the embarkers in the present expedition despatch it by way of experi- 
 ment, to see whether they will find a ready and advantageous sale for such a 
 quantity of spices, so also on my part it affords me the means as well of learn- 
 ing your Excellency's further pleasure with regard thereto, as of forwarding 
 your Excellency this despatch, it not being probable that any other opportunity 
 would offer. 
 
 * The greatest inducement to this expedition was the hope I held [ * 49 ] 
 
xlix APPENDIX. 
 
 out that the contract entered into between the embarkers therein and myself 
 might possibly be performed at Sourabaya, though I was not able in the event 
 to stipulate any augmentation in the price of the spices, some reliance having 
 been placed thereon on making the contract. Sourabaya is the port to which 
 the ship ia destined, as I insured it to be a fortified and safe berth ; in the 
 open sea, it is affirmed, she will outstrip the fastest sailing English frigate. 
 
 The house of Messrs. Jacob Le Roy & Son, of New York, have acquainted 
 me with the contract entered into by them with his Excellency Vice-Adrhiral 
 Buitkins, for building and despatching to Java two or three fast-sailing armed 
 brigs ; the intervening embargo has prevented their performing it, and I did 
 not feel disposed to take upon myself to enter into a further specific negotia- 
 tion with them with respect thereto ; the brig Goldsearcher, in the condition 
 as she proceeds to sea from hence, stands the owner in $18,000. 
 
 The schooner Nimrod, of New York, which sailed about the 25th of last 
 month, is found to outsail the celebrated pilot boat of that port, which no 
 frigate can overtake ; the owners expect to sell this schooner in Batavia for a 
 high price. 
 
 I trust I fulfil the expectations of his Excellency the minister of colonies, by 
 staying in this country so long as your Excellency deems my services neces- 
 sary in America for the advantage of his Majesty's colonies in India. I shall 
 transmit a duplicate of this and my following correspondence with your Ex- 
 cellency to his Excellency the minister of colonies, and conform myself to his 
 orders. 
 
 The brig Goldsearcher not being yet ready to sail, I shall remain in this 
 city until her departure, for the purpose of noting at foot the last intelligence 
 received from Europe. 
 
 I have the honor to subscribe myself, 
 
 With the most profound respect, 
 
 Your Excellency's obedient servant, 
 (Signed) R. G. Van Polanen. 
 
 New York, 20th August, 1809. 
 
 Extracted from the registry of his Majesty's High Court of Admiralty. 
 
 Faithfully translated from the Dutch language, in Doctors' Commons, Lon- 
 don, this 22d day of January, 1810, 
 
 By me, J. C. A. Gosli, Not. Pub. 
 
APPENDIX. 1 
 
 * FoKTTTNA, Brasch. [ * 50 ] 
 
 Note to page 236. 
 Order in Council, 31st May, 1809. 
 
 Whereas the island of Heligoland surrendered to his Majesty's forces, and 
 is now in his Majesty's possession, his Majesty is pleased, by and with the 
 advice of his privy council, to order, and it is hereby ordered, that the trade to 
 and from Heligoland shall be confined to British shipSj navigated according to 
 law, except in cases where his Majesty may be pleased by his special license 
 otherwise to permit. 
 
 And, for the more effectually preventing any foreign, vessel carrying on any 
 trade to or from the said island, contrary to his Majesty's will and pleasure, as 
 by this order expressed ; his Majesty is further pleased, by and with the ad- 
 vice of his privy council, to order, and it is hereby ordered, that no foreign 
 vessel, except as before excepted, shall enter into the port, harbor, or road 
 lying between the island of Heligoland and Sandy Island, and the shoals of the 
 said islands respectively, and commonly called or known by the names of the 
 North Haven and the South Haven, under any pretence whatever ; and that 
 no goods, wares, or merchandise, whatsoever, shall be in any manner put on 
 shore in any part of the said island of Heligoland, from any such foreign ves- 
 sel, or carried from the shore of such island to any such foreign vessel, or in 
 any manner transshipped from any such foreign vessel into any vessel lying in 
 the said harbor, port, or road, or from any vessel lying in the said harbor, port, 
 or road, into any such foreign vessel. 
 
 And the right honorable the Lords Commissioners of his Majesty's treasury, 
 and the Lords Commissioners of the Admiralty, are to give the necessary 
 directions herein as to them may respectively appertain. 
 
 Steph. Cottkell. 
 
 * AcTEON, Mason. [ * 51 ] 
 
 Note to page 257. 
 
 Extracted from the Registry of His Majesty' High Court of Admiralty, and 
 invoked from The Caroline, Morgan, master, and The Galen, Bowden, 
 master. 
 
 (Translations on behalf oflhe captors.) 
 An envelop superscribed as follows : 
 28* 
 
1" APPENDIX. 
 
 Robert Smith, Esq., Secretary of State, 
 Washington, 
 By Caroline. United States of America. 
 
 In which envelop is contained the following letters : 
 
 No. 1. 
 
 (Translated from the French language.) 
 
 To Ms Excellency the Marquis De Gallo, Minister of Foreign Affairs, <f-c., Sfc. 
 
 Naples, 10th December, 1809. 
 
 The number of American vessels which have arrived in this port in virtue 
 of the decree of his Majesty in July last, which assured them of the liberty of 
 selling their cargoes, is become an object of great consequence to the interests 
 of the United States. Your Excellency will feel the importance that I ought 
 to attach to the welfare of my country, and it is superfluous for me to repre- 
 sent to you how much so long an uncertainty prejudices all those whose confi- 
 dence has conducted them hither. I have too great reliance in the wisdom of 
 this government to doubt for a moment that this afiair will be speedily taken 
 into consideration. 
 
 The knowledge I have, above all, of your Excellency's enlightened notions, 
 assures me that you will properly represent to his Majesty that a longer un- 
 certainty would be an incalculable injury to all American individuals who have 
 property in this country. 
 
 I have also to observe to your Excellency, that if even we were at war, 
 (which I hope will never take place,) vessels bond fide arrived could not be 
 subject to an unforeseen change in politics. The importance of this affair, in 
 conjunction with my duty, will serve as an apology to your Excellency for the 
 continual trouble I give you.~ 
 
 I beg you will accept that apology, and with it the distinguished assurances 
 of my very high consideration. Alex. Hammett, 
 
 ^ Consul of the United States. 
 
 No. 2. 
 
 r * 52 ] * Naples, 17th December, 1809. 
 
 I HAVE the honor to remit to your Excellency a detailed note of 
 American vessels that have arrived in this port, with the respective epochs of 
 their arrival, and a specification of the articles with which they are laden. 
 
 I flatter myself that I know too well how highly your Excellency values the 
 prosperity of your country, and that good faith which alone can make it fiou- 
 
APPENDIX. liii 
 
 rish, to doubt that you will be pleased to represent to his Majesty the King of 
 the Two Sicilies the painful situation the Americans are in, who have come 
 hither in consequence of an invitation which assured them a liberal commerce 
 with this kingdom. 
 
 I beg your Excellency to be assured of the sentiments of high consideration 
 with which I have the honor to be, &c,, &c. 
 
 Alex. Hammett. 
 
 No. 3. 
 
 To his Excellency the Marquis Be Gallo, Minister of Foreign Affairs, 
 
 Sfc, Sfc. 
 
 Naples, 5th January, 1810. 
 SiK, — I have just learned that the government has ordered the sale of seve- 
 ral American vessels for the benefit of the Exchequer ; as I am unacquainted 
 with the motives, I beg your Excellency will be so kind as to inform me of 
 them. I seize this opportunity to reiterate to your Excellency the assurance 
 of my very high consideration. Alex. Hammett. 
 
 No. 4. 
 
 To his Excellency the Marquis De Gallo, Minister of Foreign Affairs, 
 
 Sfc, Sj-c. 
 
 Naples, 16th January, 1810. 
 
 The undersigned Consul of the United States had the honor of addressing a 
 note to his Excellency the Marquis of Gallo, minister of foreign affairs, under 
 date of the 13th inst., to which he refers himself. He finds himself this day 
 under the necessity of expressing to him his grief concerning the fate of the 
 Americans, whom confidence had conducted to this country, and who, by an 
 unexpected train of measures, which the government has adopted against their 
 property, find themselves reduced without resource or credit. Fully relying, 
 however, on the provident loyalty of his Majesty the King of the Two Sicilies, 
 and on his government, the undersigned flatters himself it will have foreseen 
 the case stated, and provide the proper remedies, as well as the means of 
 their reembarkation for their country. He confidently waits for a favorable 
 answer to this note as well as to the former. 
 
 * He prays his- Excellency the minister for foreign affairs will ac- [ * 53 ] 
 cept the assurances of his high consideration. 
 
 Alex. Hammett. 
 
liv APPENDIX. 
 
 No. 5. 
 
 To the Same. 
 
 Naples, 20th January, 1810. 
 
 Alexander Hammett, consul of the United States of America at Naples — 
 
 To his Excellency the Marquis De Gallo, the minister of foreign relations : 
 
 Intrusted with the communications of my government to that of Naples, I 
 
 have thought it my duty to protest, in the name of the United States, against 
 
 the sales effected here of American vessels and property which came direct, 
 
 and also those that have been seized on these coasts. I beg your Excellency 
 
 will receive this act, as well as acknowledge the receipt thereof. 
 
 I have the honor to subscribe myself ever, 
 
 Alex.. Hammett. 
 
 Naples, 20lh January, 1810. 
 
 In consequence of the sales effected here of sundry American vessels, with 
 their cargges ; vessels that have been seized on these coasts, though carrying 
 American colors, have been declared lawful prize, and also others which came 
 direct. 
 
 As no change whatever has taken place in the relations between the govern- 
 ment of the United States and the French government, so far as is known to 
 the consul of the United States of America ; 
 
 As no particular circumstance whatever could have influenced to declare 
 them lawful prize ; 
 
 As these vessels were addressed to Naples under the guaranty of the invita- 
 lion of his Majesty the King of Naples and Sicily, to introduce into these ports 
 goods, on condition of exporting the produce of this kingdom ; 
 
 As the contents of the cargoes were furnished with certificates of origin in 
 due form ; 
 
 We, the undersigned, Alexander Hammett, consul of the United States of 
 America at the court of Naples, the public rights of man having been violated, 
 and confidence abused, we demand, in the name of our government, and to 
 acquit ourselves of the duties of our employment, 
 
 1st. That all the proprietors be reimbursed the amount of the articles sold. 
 
 2d. That there be returned to them all the vessels hitherto illegally sold, as 
 also those that remain, as well as the goods in existence. 
 
 3d. That they be indemnified for all loss, damage, &c. 
 
 [ * 54 ] * Of which we draw up this general protest, against all that may 
 be the consequences of these measures. 
 
 Alex. Hammett, 
 Consul of the United States. 
 
APPENDIX. Iv 
 
 No. 6. 
 
 To his Excellency the Marquis De Gdllo, Minister of Foreign Affairs, 
 "" Sfc, Sfc. 
 
 Naples, 24th February, 1810. 
 
 The undersigned, consul of the United States of America, still finds himself, 
 and with grief, without an answer to the five notes which he had the honor to 
 address to his Excellency the Marquis De Gallo, minister of foreign affairs, 
 relating to the unexpected measures adopted by this government against the 
 commerce of Americans, who came here under the protection of existing 
 treaties, and the declaration of his Majesty issued on the 1st July l&st. 
 
 The consequences attending so wise a measure announced the most happy 
 results for both nations. 
 
 The undersigned has not seen them vanish but with pain, and being forced 
 this day, by imperious considerations, and by the sad situation to which about 
 three hundred individuals of his nation find themselves reduced, thinks it his 
 duty to regulate his conduct by positive data, (which he expects from the frank 
 politics of this government,) as also the measures which he adopts for furnish- 
 ing indispensable subsistence to this great family, henceforth reduced without 
 resource as well as without credit in this place. This matter is positively 
 urgent, and he begs his Excellency the minister for foreign affairs to take it 
 into his serious consideration, as also the means of transporting them to their 
 country. 
 
 The undersigned has the honor to reiterate to his Excellency the Marquis 
 De Gallo the respect of his high consideration. 
 
 (Signed) Alex. Hammett. 
 
 No. 7. 
 
 The Minister for Foreign Affairs of his Majesty the King of the Two 
 Sicilies, to M. Hammett, Consul of the United States of America. 
 
 Naples, 9th March, 1810. 
 I HAVE not failed, Sir, to render an account to his Majesty of the reiterated 
 demands that you have made to me in favor of the American vessels and sub- 
 jects now remaining in the ports of his states. The king has not seen without 
 sorrow the small conformity which is found between your solicitations and the 
 principles adopted by the government of the United States, and manifested in 
 its resolutions contained in its act of the first of March last year against the 
 commerce of France and the states attached to the political system of the 
 French empire ; after which you ought not to be surprised at the 
 rigorous measures the king has seen himself * obliged to take against [ * 55 ] 
 
Ivi APPENDIX. 
 
 the vessels i of your nation, which, besides, are loaded with prohibited mer- 
 chandise. 
 
 As for the Americans composing the crews of the confiscated vessels, 
 his Majesty has given orders to his minister of marine to procure them an 
 embarkation to return to America. I flatter myself that the changes which 
 your government may be enabled to make in its resolutions, may lead his Ma- 
 jesty to measures more conformable to his wishes, and to the sentiments of 
 friendship and good understanding which the king desires to be enabled to cul- 
 tivate with the United States of America. 
 
 Meanwhile please to accept the assurance of my very distinguished consi- 
 deration. The Marquis De Gallo. 
 
 Faithfully translated from the French language by me, the undersigned, at 
 London, 8th day of June, 1810. 
 
 Which I attest, J. De Pinna, Not. Pub. 
 
 ^ Aeden, Registrar. 
 
 Extracted from the Minutes of the Secretary of State''s Office, at the Palace 
 of Warsaw, 25th January, 1807. 
 
 Napoleon, Emperor of the French, King of Italy. 
 
 In our decree of the 21st November, which declares the confiscation of all 
 English merchandise, in whatever hands they may be found ; in our decree of 
 the 15th of December, which orders that all English merchandise or property 
 in Hamburg and the Hanse Towns should be sent into France, 
 
 We have decreed and do decree as follows : 
 
 Article 1. The merchandise subject to confiscation under our decree of the 
 21st of November, shall be deposited in a magazine appropriated for that pur- 
 pose, under the custody of a French custom-house officer. 
 
 2. An inventory will be taken of them, which will be addressed to our in- 
 tendant-general, a copy of which he will transmit to our minister of finance. 
 
 3. Colonial produce, materials of the first necessity to the manufactories, 
 fine stuffs, and articles of costlv workmanship, shall be sent into France under 
 the direction of our minister of finance, and subject to his disposal. 
 
 4. Provisions, liquors, stuffs fit for the use pf the army, and other useful arti- 
 cles, shall be placed in the military magazines. 
 
 5. The more bulky merchandise, such as iron, wood, coals, beer, and earthen- 
 ware, shall be sold on the spot where they have been sequestrated. 
 
 6. The produce of the sales made in the territory of the army 
 [* 56 ] shall be * added to the general account of contributions, and that of 
 the sales made in France to the sinking fund. 
 
APPENDIX. Ivi 
 
 7. Our minister of finance, and oUr intendant-general, are charged with the 
 execution of this decree. 
 
 (Signed) Napoleon. 
 
 By order of the Emperor, 
 
 The Secretary of State, Hitghjes B. Maket. 
 (A true copy) 
 The Intendant-General of the army, Daru. 
 
 FRENCH EMPIRE. 
 
 Bremen, Monday, October 26. 
 
 The French Consul at Bremen to his Excellency the Burgomaster, Presi- 
 dent of the Senate of this City. 
 
 Sir, — I am eager to inform you that it is the intention of his Majesty the 
 emperor and king, my august sovereign, that all navigation upon the Weser be 
 prohibited. It is his Majesty's desire that all vessels, even French, entering 
 the M^'eser, be stopped, provided they are wholly or partly laden with colonial 
 produce, or any other goods, of whatever kind, that England can furnish. 
 The goods are to be put under sequestration, and taken in charge until new 
 orders. Vessels laden solely with merchandise, which it is impossible Eng- 
 land can furnish, such as pitch, tar, iron, copper, and French wines, are to be 
 exempted. 
 
 All vessels are to be prevented from leaving the Weser. I am finally or- 
 dered to take the most efiicacious measures, that the intentions of his Majesty 
 be strictly and immediately fulfilled. 
 
 I am now occupied in executing these orders, and hasten to warn you 
 thereof, in order that you may immediately inform the merchants of this city, 
 that they attempt not to render ineffectual the measures taken for the rigid 
 and proper execution of the orders of my sovereign. I avail myself of this 
 opportunity to express to your Excellency the homage of my respect. 
 
 (Signed) Lagan. 
 
 NETTTEAI, COMMERCE. 
 
 Hamburg, November 4, 1807. 
 At the request of the merchants here, dealing with the United States, I have 
 issued the annexed circular instructions to the masters of such of our ships as 
 may be bound to this city ; and have also sent over to Heligoland an agent 
 
Ivii APPENDIX. 
 
 who will remain there for some months, in order to communicate such 
 [ * 57 ] further information as I find expedient to convey to our * country- 
 men passing that island. You, Sir, will make such use of these cir- 
 cumstances as the interest of our commerce may point out to your known zeal 
 and discretion. I am, very respectfully, 
 
 Your most obedient servant, 
 
 J. M. Forbes. 
 W. Lyman, Esq., 
 Consul of the United States of America, &c., London. 
 
 American Consulate, Hamburg, November 4, 1807. 
 To Masters of American ships hound to Hamburg. 
 
 In the present unprecedented crisis, such great and almost daily changes 
 take place, and the measures of the belligerents affecting commerce are put 
 into such immediate operation, that it is impossible for the most prudent, with 
 the best intentions, to avoid the injuries which on every side lie in wait for fair 
 neutral trade. It is therefore by no means my intention to assume any control 
 in the destination of your ships, but merely to state such facts as it is import- 
 ant you should know. In this measure my own opinion has been fortified by 
 those of the most respectable merchants here in connection with my country, 
 expressed to me in their written request. 
 
 The French custom-house officers, (or douaniers,) without any official inti- 
 mation to the foreign agents here, have, some time since, in virtue of an impe- 
 rial decree, applied the commercial regulations and laws of France to the trade 
 of this city, and without any exceptions require certificates of origin signed by 
 the French consul at the place of shipment, for all articles attempted to be in- 
 troduced here. In addition to the inconveniences which the prompt and unex- 
 pected execution of this measure presented, within a few days a new order of 
 the French emperor has interdicted, in the most rigid manner, the navigation 
 of the Elbe and Weser to all ships, whether going or coming, and in conse- 
 quence of it, the American ship Julius Henry, coming from Baltimore, has 
 been seized, and the cargo has been sequestrated ; the ship has been liberated, 
 but without any freight, and must remain under an embargo, of which the term 
 cannot be foreseen. Under this state of things, it must occur to every one, 
 that it cannot promote the interests confided to you to enter either of these 
 rivers. Having stated thus much, I can only leave you to follow the dictates 
 of your own prudence, assuring you that I shall endeavor to send you new 
 advices by the 1st December, or sooner, if any favorable change takes place. 
 (Signed) J. M. Forbes, 
 
 Consul of the United States of America. 
 
APPENDIX. Iviii 
 
 List of articles permitted to be imported into Hamburg, with certificate of 
 origin, signed by the French consul at the place of shipment : — 
 * Timber, masts, iron, copper, hemp, sail-cloth or raven's duck, flax, [ * 58 ] 
 cordage, pitch, tar, wheat, rye, barley, oats, oatmeal, peas, beans, 
 rice, flour, cheese, butter, wine, brandy, tallow, candles, salt, potash, flax-seed, 
 madder, turnip-seed, linseed oil, hemp oil, whale and other fish oils, fish glue, 
 mats, horse hair, hogs' bristles, saltpetre, yellow wax, bed feathers, caviar, and 
 honey. All other articles are for the present prohibited. 
 
 GERMAN PAPERS. 
 
 New Decree against British Commerce. 
 
 Extract from the Minute-Book of the Office of the Secretary of State. 
 
 Palace of Fontainbleau, November 13, 1807. 
 We, Napoleon, Emperor of the French, King of Italy, and Protector of the 
 Confederation of the Rhine, upon the report of our minister of finance, have 
 decreed and do decree as follows : 
 
 Article 1. The enactments of our imperial decree of the 6th of August, 
 1807, are applicable to the cargoes of vessels which may arrive in the mouth 
 of the Weser ; those articles of merchandise, therefore, specified in the second 
 , article of the said decree, shall be seized and confiscated, and all colonial pro- 
 duce shall be accompanied by certificates of origin, delivered by our commer- 
 cial commissaries at the different ports where they were taken on board. 
 
 2. Our commercial commissaries shall not confine themselves, in their cer- 
 tificates, merely to attest that colonial productions neither came from the colo- 
 nies of England, nor belong to her commerce ; they shall also point out the 
 place of their origin, the papers which have been submitted to them in support 
 of the declaration made to them, and the name of the ship on board which 
 they have been originally transported from the place where they were pro- 
 duced to that where the commissaries reside ; they shall address duplicates of 
 their certificates to the director-general of tlie customs. 
 
 3. All ships which, after having touched at any British port, on any account 
 whatever, shall arrive in the mouth of the Elbe, and of the Weser, shall be 
 seized and confiscated, together with their cargoes, without any exception or 
 distinction of produce or of merchandise. 
 
 4. The captains of ships arriving in the mouth of the Elbe, or of the Weser, 
 must make declaration to the chief officer of the imperial customs on that sta- 
 tion, of the place from which they sailed as well as of those which they 
 touched at, and shall deliver to them their manifest, bills of lading, sea-papers, 
 and registe.rs. When the captain shall have signed this declaration, and deli- 
 vered up his papers, the custom-house officer shall interrogate the sailors one 
 by one, m the presence of two head collectors ; if it appear from this examina- 
 
 EDW. 29 
 
lix APPENDIX. 
 
 tion that the ship has touched at an English port, beside the seizure and con- 
 fiscation of the ship and cargo, the captain, as well as those of the 
 [ * 59 ] sailors who upon their examination have made * a false declaration, 
 shall be made prisoners, and shall not be liberated till after paying a 
 
 sum of six thousand francs by way of penalty for the captain, and a sum of 
 
 five hundred francs for each of the arrested sailors, in addition to the penalties 
 
 incurred by those who falsify their sea-papers and registers. 
 
 5. If the advices and information communicated to the director of our 
 customs resident at Hamburg excite suspicions with regard to the origin of the 
 cargoes, they shall be provisionally deposited in warehouses till it has been as- 
 certained and decided that they came neither from England nor from her colo- 
 nies. 
 
 6. The line of officers of the customs formed upon the Elbe and the fron- 
 tiers of Holstein, shall be augmented by one hundred men. The director- 
 general of our customs shall give the necessary orders for placing overseers, 
 detached from that line, at the ports situated on the mouth of the Weser, and 
 for their exercising the strictest inspection of all ships which shall approach. 
 
 7. The inspectors of customs are authorized to make visits to the Isle of 
 Neuwerk, and to the Wats, or other little isles situated in the mouths of the 
 Elbe and Weser. 
 
 8. The commandants of troops of the line and of the gens d'armes, are 
 ' bound to lend their aid to these inspections, as often as they shall be required 
 
 to do so by the chief custom officers of the district. 
 
 9. Our ministers of war and finance are charged, each in his own depart- 
 ment, with the execution of this decree. 
 
 (Signed) Napoleon. ^ 
 
 HuGTJES B. Maket, Secretary of State. < 
 (A true copy) GAUDnr, Minister of Finance. 
 
 ' (A true copy) Colleir, Director-General of the Customs. 
 
 (A true copy) Fudel, Director of the Customs. 
 
 Decree against Swedish Commerce. 
 
 In consequence of our present relations with Sweden, his Majesty yesterday 
 passed the following decree : 
 
 Louis Napoleon, by the grace of God and the constitution of the kingdom. 
 King of Holland and Constable of France. 
 
 Whereas we have received information that the orders adopted relative to 
 the blockade of the British Islands have not been carried into execution with 
 like force against Swedish ships ; and whereas this kingdom is equally at war 
 with Sweden and England : 
 
 We have decreed and hereby decree as follows : 
 
 Article 1. Every Swedish ship which shall enter the ports of this kingdom. 
 
APPENDIX. Ix 
 
 shall be immediately seized, and also all Swedish merchandise shall be con- 
 fiscated. 
 
 *2. All Swedish subjects who may have heretofore exercised [*60] 
 diplomatic functions within our kingdom, or who may have served as 
 consuls or commercial agents, and who still remain in Holland, are required 
 to leave the kingdom immediately upon the publication of this decree. 
 
 3. All other Swedish subjects, who may be found in our ports or other parts 
 of our kingdom, shall immediately be arrested and treated as prisoners of war. 
 
 4. The nveasures at present in force for the blockade of the British Islands 
 shall in like manner and without exception be made applicable to Sweden. 
 
 5. Our ministers of finances, justice, and police, are charged with the exe- 
 cution of the present decree, which shall be proclaimed at all places where its 
 publication may be necessary. 
 
 Given at Utrecht, this 18th day of January, in the year 1808, and of our 
 reign the third. 
 
 (Signed) Louis. 
 
 By his Majesty's command, 
 J. H. Appelius, Secretary of the Council of State. 
 
 Amsterdam, July 4, 1809. 
 
 Decree of the 20ih June. 
 
 _ American vessels arriving within three months from the date hereof, and 
 those already arrived, shall not be subject to the regulations of blockade, pro- 
 vided the same have not been in England, nor visited by the enemy. All cap- 
 tains shall make a declaration conformable to this article, and in case of pre- 
 varication the ship and cargo to be confiscated. 
 
 As far as the cargoes shall appear to be conformable to the existing regula- 
 tions, the same shall be placed at the disposal of the proprietors or consignees, 
 the remainder shall be sequestrated, and deposited in the king's warehouses. 
 
 Another Decree of the same date. 
 
 Article 1. The list of articles allowed to be imported by the article of 31st 
 March, shall be extended to the following : Rice, staves, barks, and other 
 drugs used in medicine, cottons, Georgia, Louisiana, and Carolina, Java coffee, 
 sugar from the same island. 
 
 2. Besides the certificates of origin required by our former decree, the 
 director afloat, for the purpose of executing the same, shall appoint sworn 
 brokers to examine the goods, to ascertain if they really are the produce 
 
Ixi APPENDIX. 
 
 [ * 61 ] * of our colonies or of the United States ; and for the better 
 means of examination, all goods shall be landed in the king's ware- 
 houses. 
 
 3. A month from the date hereof, our said director shall report to us whe- 
 ther it be advisable to continue these measures. 
 
 JoHAN, Abraham. 
 
 I. 
 
 Note to page 275. 
 
 Order in Council, May 2, 1810. 
 
 His Majesty is pleased, by and with the advice of his privy council, to order, 
 and it is hereby ordered, that all vessels which shall have cleared out from 
 any port so far under the control of France or her allies, as that British vessels 
 may not freely trade thereat, and which are employed 'In the whale fishery, or 
 other fishery of any description, save as hereinafter excepted, and are return- 
 ing, or destined to return, either to the port from whence they cleared, or to 
 any other port or place at which the British flag may not freely trade, shall be 
 captured, and condemned, together with their stores and cargoes, as prize to 
 the captors. 
 
 But his Majesty is pleased to except from this order vessels employed in 
 catching and conveying fish fresh to market, such vessels not being fitted or 
 provided for the curing of fish. 
 
 And it is further ordered, that all vessels subject to the provisions of the . 
 order as aforesaid, which shall have sailed on their present voyage previous to 
 notice of this order, or reasonable time for notice thereof, shall be permitted to 
 return to their own port, without molestation on account of any thing contained 
 in this order ; provided they shall not have continued on their fishery as afore- 
 said more than twenty days, (which are hereby allowed to such vessels,) after , 
 due warning of this order received at sea. 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 the Judges of the Courts of Vice-Admiralty, are to 
 take the necessary measures herein as to them may respectively appertain. 
 (Signed) W. Fawkener. 
 
APPENDIX. Ixii 
 
 * San Francisco du Paula. [ * 62 ] 
 
 N. 
 Note to page 279. 
 Extract from the Cadiz Commercial Gazette, of the oth September, 1809. 
 
 The most excellent Senor Don Francisco Saavedra, minister of the royal 
 revenue, has transmitted to this consulate, under date of the 27th August, 
 ultimo, the following royal order : 
 
 When Don Joseph Lorez Martinez, late prior of your consulate, in the name 
 of that body stated various observations with a view of obtaining permission to 
 insure treasure proceeding from America belonging to the subsidy department, 
 (to which his Majesty hath not thought fit to accede,) he also suggested the 
 great expediency of regulating the subject of reprisals, in order to obviate all 
 injury and subject of complaint. In consideration of which the supreme cen- 
 tral junta of the Ijingdom ordered, that the necessary official letter should be 
 addressed to the secretary of state on so interesting a subject, and in conse- 
 quence thereof he has been pleased to inform, that the following article had 
 been agreed upon between the minister of his Britannic Majesty, and that of 
 his Catholic Majesty in that court, which has been ordered to be carried into 
 effect in the following terms : 
 
 All ships or goods belonging to one of the two contracting powers shall be 
 reciprocally, and in all cases, (save those hereafter excepted,) restored to their 
 former owners or proprietors, on payment of a salvage of one eighth part of 
 their true value, if recaptured by a ship of war, and one sixth part if recap- 
 tured by a privateer or other ship or vessel. And in case such ships or goods 
 have been recaptured by the united force of one or more ships of war, or of 
 one or more private vessels, then the same shall pay a salvage of one sixth 
 part ; but if such ships or vessels so recaptured shall appear, after capture by 
 the enemy, to have been fitted out as ships or vessels of war, such ship or ves- 
 sel shall not be restored to its former owners or proprietors, but shall in all 
 cases, whether recaptured by a ship of war, privateer, or any other vessel, be 
 declared lawful prize to the benefit of the captors. 
 
 I transmit this to you by order of his Majesty, for your government and 
 direction, the same being, by order of the tribunal, published for the informa- 
 tion of the merchants. Lucas Hontanon, Secretary. 
 
 Cadiz, 2d September, 1809. 
 
 29' 
 
Ixiii APPENDIX. 
 
 [ • 63 ] * O. 
 
 Extracted from the Registry of his Majesty''s High Court of Admiralty 
 
 of England. 
 
 Foreign Office, June 4th, 1812. 
 Sir, — In reply* to your letter of this day's date, addressed to Viscount Cas- 
 tlereagh, requesting to be furnished, for the information of the captors in the 
 cases of the ship Vestal and other American vessels, with copies of a letter 
 from the French minister of justice to the Council of Prizes, dated the 25th of 
 December, 1810, and of another of the same date from the French minister of 
 finance to the director-general of the customs, I am directed by his lordship to 
 transmit to you,, herewith, copies of the said documents, together with a copy of 
 the letter from Mr. Russel, the American charge des affaires at this court, 
 which accompanied the same, and the copy of the decree of the French 
 government, dated the 28th of April, 1811, referred to in your said letter. 
 
 I am. Sir, ' 
 
 • Your most obedient humble servant, 
 
 William Hamilton. 
 To the King's Proctor, Doctors' Commons, &c., &c., &c. 
 
 Translated from the French. 
 
 Copy of a Letter addressed hy Ms Excellency the Grand Judge, Minister 
 of Justice, to the Counsellor of State, President of the Council of Prizes. 
 
 Paris, the 25th December, 1810. 
 To his Excellency the President. 
 
 Sir, — The minister for foreign affairs, in conformity to the orders of his 
 Majesty the emperor and king, addressed, on the 5th of August last, to the 
 minister plenipotentiary of the United States of America, a note, containing 
 the following words : 
 
 " I am authorized to declare to you, that the decrees of Berlin and Milan 
 are revoked, and that dating from the 1st of November they will cease to pos- 
 sess their effect, it being, however, well understood, that in consequence of 
 this declaration, the English shall revoke their orders in council, and shall 
 renounce those new principles of blockade which they have wished to esta- 
 blish, or else that the United States, conformably to the act which you have 
 just communicated, shall cause their rights to be respected by the English." 
 
 In consequence of the communication of this note, the President of the 
 United States published, on the 2d of November, a proclamation, announcing 
 the revocation of the decrees of Berlin and Milan, and declaring that, in con- 
 
APPENDIX. Ixiv 
 
 sequence thereof, all the restrictions imposed by the act of the 1st of May- 
 should cease in regard to France and her dependencies. 
 
 * The department of the treasury on the same day addressed a [ * 64 ] 
 circular to all the officers of the American customs, directing them 
 to admit into the ports and waters of the United States French armed vessels, 
 and ordering them to apply, reckoning from the 2d of February next, to Eng- 
 lish ships of all descriptions, and to merchandise proceeding from the growth, 
 manufacture, and commerce of England and her dependencies, the law pro- 
 hibiting all commercial relations, provided that at the said period the revoca- 
 tion of the English orders in council, and of all acts invasive of the neutrality 
 of the United States, shall not have been announced by the department of the 
 treasury. 
 
 In consequence of the government of the United States having thus en- 
 gaged to cause their rights to be respected, his Majesty directs, that all causes 
 pending in the Council of Prizes, concerning prizes made of American vessels, 
 dating from the 1st of November, and such as shall from henceforth be brought 
 in, are not to be adjudged according to the principles of the decrees of Berlin 
 and Milan, but that they are to remain suspended, the vessels taken or seized 
 before being only under sequestration, and the rights of the proprietors being 
 reserved to them till the 2d of February next, the period when the United 
 States, having performed their engagement of causing their rights to be 
 respected, the captures are to be declared by the council to be null and void, 
 and the American vessels restored with their cargoes to their owners. 
 
 Accept, &c., 
 (Signed) Le Due de Massa. 
 
 (A true copy) 
 The Minister for Foreign Affairs. 
 
 (Signed) Le Dae de Bassano. 
 
 Translated from the French. 
 
 Copy of a Letter addressed hy Ms Excellency the Minister of Finances to 
 the Count de Sassy, Counsellor of Slate, Director-General of Customs. 
 
 Paris, the 25th December, 1810. 
 
 Monsieur the Count, — On the 5th of August last the minister of foreign 
 affairs wrote to Mr. Armstrong, the minister plenipotentiary of America, that 
 the decrees of Berlin and Milan were revoked, and that from the 1st of No- 
 vember they would cease to possess their effect, it being, however, well under- 
 stood, that in consequence of this declaration the English should revoke their 
 orders in council, and should renounce those new principles of blockade which 
 they have wished to establish, or else that the United States, conformably to 
 the act communicated, should cause their rights to be respected by the Eng- 
 lish. 
 
 Upon the communicatioa of this note, the President of the United States 
 
Ixv APPENDIX. 
 
 issued, on the 2d of November, a proclamation, announcing the revocation, 
 reckoning from the 1st of November, of the decrees of Berlin and Milan, and 
 declaring, that in consequence thereof, all the restrictions imposed by the act 
 of the 1st of May should cease with respect to France and her dependencies. 
 
 On the same day the department of the treasury addressed a circular to the 
 agents of the customs, ordering them to admit into the ports and waters of the 
 United States Frenoh armed vessels, and enjoining them to apply, reckoning 
 from the 2d of February next, the law of the 1st of May, 1809, prohibiting of 
 all commercial relations to English ships of all descriptions, as well as to the 
 merchandise of the growth, commerce, and manufacture of England and her 
 dependencies. 
 
 His Majesty having in these two acts seen the indication of the measures 
 which the Americans are about to take, from the 2d of February next, to 
 cause their rights to be respected, has commanded me to signify to 
 [* 65] you, that the decrees of Berlin and Milan are * not to be applied to 
 any American vessel that shall have entered into our ports since the 
 1st of November, or that may henceforwards, and that such as have been se- 
 questrated as having acted in contravention to the decrees, shall be the object 
 of a special report. 
 
 On the 2d of February I shall communicate to you the intentions of the em- 
 peror upon the definitive step to be adopted to distinguish and favor American 
 navigation. I have the honor, &c., 
 
 (Signed) Le Duo de Garto. 
 
 (A true copy.) 
 By authorization of the minister, in his absence, 
 
 the Chief of the Division of Consulate. 
 (L. S.) (Signed) D. Heemand. 
 
 (A true copy.) 
 (Signed) J. Baelow. 
 
 Copy. 
 
 The undersigned, chargd d'affaires of the United States of America, has 
 the honor to transmit to Lord Castlereagh authentic copies of a decree, pur- 
 porting to be passed by the Emperor of the French, on the 28th day of April, 
 1811, of a letter addressed by the French minister of finances to the director- 
 general of the customs, on the 25th day of December, 1810,- and of another 
 letter of the same date, from the French minister of justice to the president of 
 the council of prizes. 
 
 As these acts explicitly recognize the revocation of the Berlin and Milan 
 decrees, in relation to the United States, and distinctly make this revocation to 
 take eflfect from the 1st of November, 1810, the undersigned cannot but per- 
 suade himself that they will, in the official and authentic form in which the 
 are now presented to his Britannic Majesty's government, remove all doubts 
 
APPENDIX. Ixvi 
 
 with respect to the revocation in question, and joined with all the powerful 
 considerations of justice and expediency so often suggested, lead to a like 
 repeal of the British orders in council, and thereby to a renewal of that per- 
 fect amity and unrestricted intercourse between this country and the United 
 States, which the obvious interests of both nations require. 
 
 The undersigned avails himself of this opportunity to assure his lordship of 
 his highest consideration. 
 
 (Signed) Jona. Eussell. 
 
 18 Bentinck Street, 20 May, 1812. 
 
 Translated from the French Language. 
 
 Palack of St. Cloud, 28th April, 1811. 
 Napoleon, Emperor of the French, King of Italy, Protector of the Confedera- 
 tion of the Rhine, Mediator of the Swiss Confederation. 
 On the report of our minister for foreign relations : 
 
 Seeing the law of the 2d March, 1811, by which the Congress of the United 
 States ordered the executioQ of the provisions of the Non-intercourse Act, pro- 
 hibiting the introduction into American ports of ships and merchandise of 
 Great Britain, her colonies and dependencies : 
 
 Considering that the said law is a measure in opposition to the~ arbitrary pre- 
 tensions ordained by the decrees of the British council, and a formal refusal to 
 adhere to a system hostile to the independence of neutral powers and their 
 flags : 
 
 * We have decreed, and do decree, as follows : [ * 66 ] 
 
 The Berlin and Milan decrees, from the 1st November last, are 
 definitively considered as not having existed with respect to American vessels. 
 
 (Signed) Napoleon. 
 
 By the Emperor, 
 
 The Minister Secretary of State, 
 
 (Signed) The Count Daru. 
 
 (A correct copy.) 
 
 The Minister for Foreign Eolations, 
 
 (Signed) The Duke op Bassano. 
 
 (A true copy.) 
 
 (Signed) Joel Barlow. 
 
 (A true copy.) 
 Foreign Office, July 3d, 1812. 
 
 (Signed) William Hamilton, Under Secretary of State. 
 
Ixvi APPENDIX. 
 
 P. 
 
 CONSERVATIVE SENATE. 
 
 Silting of March 10. 
 
 The sitting opened at noon, in the presence of his Serene Highness the 
 Arch-Chancellor of the empire; his Serene Highness the Prince Vice-Consta- 
 ble was present at it. 
 
 Their Excellencies the ministers for foreign affairs and war, Count Regnault 
 de St. Jean d'Augley, minister of state, and Count Dumas, counsellor of state, 
 being introduced, his Excellency the Duke of Bassano, minister for foreign 
 affairs, communicated the following report : 
 
 Report of the Minister for Foreign Affairs to his Majesty the Emperor 
 
 and King. 
 
 " Sire, — The maritime rights of neutrals, as solemnly fixed by the treaty 
 of Utrecht, became the common law of nations. This law, completely 
 renewed in all subsequent treaties, has consecrated the principles which I am 
 going to state. 
 
 " The flag covers the merchandise. Enemy's goods, under a neutral flag, 
 are neutral ; as neutral property, under an enemy's flag, is considered as be- 
 longing to an enemy. 
 
 " Contraband articles are the only property which a neutral flag does not 
 cover ; and arms and warlike stores alone are contraband. 
 
 " All visiting of a neutral vessel by an armed ship can be made by a small 
 number of men only, the armed ship keeping without cannon shot. 
 
 " Every neutral ship may trade from an enemy's port to an enemy's port, 
 and from an enemy's port to a neutral one. 
 
 " The only ports excepted are those really blockaded ; and ports really block- 
 aded are those invested, besieged,, likely to be taken, and into which a mer- 
 chantman could not enter without danger. 
 
 " Such are the obligations of beliigerents towards neutral powers ; such are 
 the reciprocal rights of either party ; such are the maxims consecrated by 
 those treaties which form the public law of nations., Frequently has England 
 dared to attempt substituting in their place arbitrary and tyrannical regulations. 
 Her unjust pretensions were repelled by all governments, sensible to the voice 
 of honor, and the interests of their subjects. She constantly found herself 
 forced to acknowledge in her treaties the principles she wished to destroy ; 
 and when the peace of Amiens was violated, the maritime legislation still 
 remained upon its ancient basis. 
 
 " By a series of events the English marine became more numerous than all 
 the forces of the other maritime powers. England then thought the moment 
 
APPENDIX. Ixvii 
 
 was arrived when, having nothing to fear, she might dare to do every' thing. 
 She immediately resolved to subject the navigation of all seas to the same 
 laws as those of the Thames. 
 
 " It was in 1806 she began the execution of that system which 
 tended to bend the * common law of nations before the orders of [ * 67 J 
 council, and the regulations of the London admiralty. 
 
 " The declaration of the 16th of May annihilated by one single word the 
 rights of all maritime states — placed under an interdict vast coasts and whole 
 empires. From this moment England no longer acknowledged any neutrals 
 upon the seas. 
 
 " The decrees of 1807 imposed upon every vessel the obligation of touch- 
 ing at an English port, whatever her destination' might be, to pay a tribute to 
 En'gland, and submit her cargo to the tariffs of the customs. 
 
 " By the declaration of 1806, all navigation had been interdicted to neutrals; 
 by the decrees of 1807, the power of navigating was restored to them ; but 
 they could use it only for the common utility of English commerce, in the 
 combination of its interests and its people. 
 
 " The English government thus tore off the mask with which it had covered 
 its projects — proclaimed the universal dominion of the seas — regarded all 
 nations as its tributaries, and imposed upon the continent the expenses of the 
 war which it maintained against it. 
 
 " These unheard-of measures excited a general indignation among the 
 powers who preserved the sentiment of their independence and their rights ; 
 but in London they raised the national pride to the highest pitch ; they held 
 out to the English people a future prospect, rich in the most brilliant hopes. 
 Their commerce, their industry, were henceforth to be without opposition ; the 
 produce of the two worlds was to flow into their ports, pay homage to the ma- 
 ritime and commercial sovereignty of England, by paying tribute, and after- 
 wards arrive to other nations, loaded with the enormous expenses from which 
 English merchandise alone would be free. 
 
 " Your Majesty, at a single glance, perceived the evils with which the con- 
 tinent was threatened. You instantly applied the remedy. You annihilated 
 by your decrees, this pompous, unjust attack upon the independence of every 
 state, and the rights of all nations. 
 
 "• The Berlin decree answered the declaration of 1806. The blockade of 
 the British islands was opposed to the imaginary blockade established by Eng- 
 land. The Milan decree answered the orders of 1807 ; it declared denation- 
 alise every neutral vessel that submitted to English legislation, either by 
 touching at a British port, or paying tribute to England, and which thus re- 
 nounced the independence and rights of his flag. All merchandise proceeding 
 either from British commerce or industry, was blockaded in the Britannic 
 islands ; the continental system banished them from the continent. 
 
 "Never did any act of reprisal attain its object in a more prompt, certain, 
 and victorious manner. The Berlin and Milan decrees turned against England 
 the arms she had directed against universal commerce. That source of com- 
 mercial prosperity, which she believed so abundant, became a source of cala- 
 mity to British commerce ; in place of those tributes which were to have 
 
Ixviii APPENDIX. 
 
 enriched the treasury, her credit was deteriorated, hurting the fortune of the 
 state and that of individuals. 
 
 " As soon as your Majesty's decrees appeared, all the continent foresaw that 
 such would be their result if they received full execution ; but, however ac- 
 customed Europe was to see success crown your enterprises, she could 
 scarcely conceive by what new prodigies your Majesty would realize the great 
 designs which have been so rapidly accomplished. Your Majesty'armed your- 
 self with all your power. Nothing could divert you from your intention. 
 Holland, the Hanseatic towns, the coasts that unite the Zuyder Zee to the 
 Baltic Sea, were united to France, and subjected to the same administration and 
 the same regulations — the immediate and inevitable consequence of the legis- 
 lation of the English government. No kind of considerations could balance in 
 the mind of your Majesty the first interest of your empire. 
 
 " You did not long wait to reap the advantages of this important resolution. 
 In fifteen months, that is to say, since the Senatus Consulium of reunion, your 
 Majesty's decrees have weighed with all their force upon England. She flat- 
 tered herself with invading the commerce of the entire world ; and 
 [ * 68 ] her commerce, become a speculation, does nothing but * by means 
 of 20,000 licenses, delivered each year. Forced to obey the law of 
 necessity, she thus renounces her Act of Navigation, the principal foundation 
 of her power. She pretended to the universal dominion of the seas ; and na- 
 vigation is interdicted — her vessels shut out from all the continental ports. 
 She wished to enrich her treasury by the tributes which Europe would pay ; 
 and Europe has not only freed itself from her unjust pretensions, but also from 
 the tributes it would have paid her industry ; her manufacturing towns are be- 
 come deserts ; distress has succeeded a prosperity hitherto increasing ; an 
 alarming disappearance of money, and the absolute want of employment, 
 daily disturb the public tranquillity. Such have been to England the conse- 
 quences of these imprudent attempts. She already perceives, and can daily 
 more and more discover, that there is no salvation for her, but in a return to 
 justice, and to the principle of the rights of nations ; and that she can only par- 
 ticipate in the benefit of the neutrality of ports, inasmuch as she allows neutrals 
 to benefit by the neutrality of their flag. But till the British orders of coun- 
 cil are rescinded, and the principles of the treaty of Utrecht towards neu- 
 trals are again in full vigor, the Berlin and Milan decrees will remain against 
 those powers who allow their flag to be denationalized. The ports of the con- 
 tinent shall not be open either to denationalized flags, or British merchandise. 
 
 " It must not be dissembled, that to maintain in full vigor this grand system, 
 it will be necessary that your Majesty employ all the powerful means which 
 belong to your empire, and find in your subjects that assistance which you 
 have never yet in vain demanded of them. It is necessary that all the dispos- 
 able French forces should march to whatQj'er places where the English or de- 
 nationalized flags attempt to land. A special army, charged exclusively with 
 guarding our vast extent of coasts, our maritime arsenals, and triple range of 
 fortresses which cover our frontiers, will answer to your Majesty for the safety 
 of the territory confided to their valor and fidelity. You will send to their for^ 
 tunate destiny those brave men, accustomed to fight and to conquer under the 
 
APPENDIX. Ixix 
 
 eyes of your Majesty — to defend the political rights and exterior safety of the 
 empire. The depots even of the corps will not be turned from the useful desti- 
 nation of supporting your active armies. The forces of your Majesty will thus 
 always be maintained upon the most formidable footing, and the French terri- 
 tory protected by an establishment which interest dictates ; the policy and 
 dignity of the empire will be placed in such a situation as to entitle it more 
 than ever to deserve the title of inviolable and sacred. 
 
 " For a considerable time the English government had proclaimed ever- 
 lasting war — a frightful project, which the wildest ambition could never really 
 have intended, and which presumptuous boasting alone allowed to escape ; a 
 frightful project, which, nevertheless, will be realized, if France is but to ex- 
 pect engagements without guaranty — of uncertain duration, and more disas- 
 trous than war itself. 
 
 " Peace, Sire, which in the midst of your immense power has been so often 
 offered to your enemies, will crown your glorious works, if England, banished 
 from the continent with perseverance, and separated from all the states whose 
 independence she has violated, consents to return to those principles upon 
 which European society is founded, acknowledges the law of nations, and 
 respects the sacred rights consecrated by the treaty of Utrecht. 
 
 " In the mean time the French nation must remain armed ; honor com- 
 mands it ; the interest, the rights, the independence of the people engaged in 
 the same cause, demand it ; and an oracle still more certain, often delivered 
 even from the mouth of your Majesty, constitutes it an imperious and sacred 
 law." 
 
 Q. 
 
 At the Court at Carlton House, the 23d of June, 1812 ; present, Ms Royal 
 Highness the Prince Regent, in Council. 
 
 Wheeeas his Royal Highness, the Prince Regent, was pleased to declare 
 in the name and on the behalf of his Majesty, on the 21st day of 
 April, 1812, " That if at any * time hereafter the Berlin and Milan [*69] 
 decrees shall, by some authentic act of the French government, pub- 
 licly promulgated, be absolutely and unconditionally repealed, then, and from 
 thenceforth, the order in council of the 7th of January, 1807, and the order 
 in council of the 26th of April, 1809, shall, without further order, be, and the 
 same are hereby declared, from thenceforth to be wholly and absolutely 
 revoked." 
 
 And whereas the charge des affaires of the United States of America, resi- 
 dent at this court, did, on the 20th day of May last, transmit to Lord Viscount 
 Castlereagh, one of his Majesty's principal secretaries of state, a copy of a 
 certain instrument, then for the first time communicated to this court, pur- 
 porting to be a decree passed by the government of France on the 28th day of 
 
 EDW. 30 
 
t i 
 
 Ixix APPENDIX. 
 
 April, 1811, by which the decrees of Berlin and Milan are declared to be de- 
 finitively no longer in force in regard to American vessels : 
 
 And whereas his Royal Highness, the Prince Regent, although he cannot 
 consider the tenor of the said instrument as satisfying the conditions set forth 
 in the said orders of the 21st of April last, upon which the said orders were to 
 cease and determine, is nevertheless disposed, on his part, to take such mea- 
 sures as may tend to reestablish the intercourse between neutral and bellige- 
 rent nations upon its accustomed principles : 
 
 His Royal Highness the Prince Regent, in the name and on the behalf of 
 his Majesty, is therefore pleased, by and with the advice of his Majesty's privy 
 council, to order and declare, and it is hereby ordered and declared, that the 
 order in council bearing date the 7th day of January, 1807, and the order in 
 council bearing date the 26th day of April, 1809, be revoked so far as may 
 regard American vessels and their cargoes, being American property, from 
 the 1st day of August next. 
 
 But whereas, by certain acts of the government of the United States of 
 America, all British armed vessels are excluded from the harbors and waters 
 of the said United States, the armed vessels of France being permitted to enter 
 therein, and the commercial intercourse between Great Britain and the said 
 United States being interdicted, the commercial intercourse between France 
 and the said United States having been restored, his Royal Highness the Prince 
 Regent is pleased hereby further to declare, in the name and on the behalf of 
 his Majesty, that if the government of the said United States shall not, as soon 
 as may be after this order shall have been duly notified by his Majesty's minis- 
 ter in America to the said governinent, revoke, or cause to be revoked, the 
 said acts, this present order shall, in that case, after due notice, signified by 
 his Majesty's minister in America to the said government, be thenceforth null 
 and of no effect. 
 
 It is further ordered and declared, that all American vessels and their car- 
 goes, being American property, that shall have been captured subsequently to 
 the 20th day of May last, for a breach of the aforesaid orders in council alone, 
 and which shall not have been actually condemned before the date of this 
 order, and that all ships and cargoes as aforesaid, that shall henceforth be cap- 
 tured under the said orders, prior to the 1st day of August next, shall not be 
 proceeded against to condemnation till further orders, but shall, in the event of 
 this order not becoming null, and of no effect in the case aforesaid, be forth- 
 with liberated and restored, subject to such reasonable expenses on the part of 
 the captors as shall have been justly incurred. 
 
 Provided, that nothing in this order contained, respecting the revocation 
 of the orders herein mentioned, shall be taken to revive, wholly or in part, 
 the orders in council of the 11 lb of November, 1807, or any other order not 
 herein mentioned, or to deprive parties of any legal remedy to which they 
 may be entitled under the order in council of the 21st of April, 1812. 
 
 His Royal Highness the Prince Regent is hereby pleased further to declare, 
 in the name and on the behalf of his Majesty, that nothing in this present order 
 contained shall be understood to preclude his Royal Highness the Prince Re- 
 gent, if circumstances shall so require, from restoring, after reasonable notice. 
 
APPENDIX. Ixx 
 
 the orders of the 7th of January, 1807, and 26th of April, 1809, or any part 
 thereof, to their full effect, or from taking such other measures of retaliation 
 against the enemy as may appear to his Eoyal Highness to be just and neces- 
 sary. 
 
 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 *th6 Judge of the High Court of Admiralty, [* 70] 
 and the Judges of the Courts of Vice-Admiralty, are to take the 
 necessary measures herein as to them may respectively appertain. 
 
 ,Jas. Bttllee. 
 
 E. 
 
 Mr. Russell to the Duke of Bassano. 
 
 Paeis, 11th May, 1811. 
 
 Sir, — I have the honor to present to your Excellency a list of the Ameri- 
 can vessels which, according to the information I have obtained, have been 
 captured by French privateers since the 1st of November last, and brought 
 into the ports of France. All proceedings in relation to these vessels have 
 been suspended in the council of prizes, with the same view, no doubt, as the 
 proceedings in the custom-house had been deferred with regard to those which 
 had arrived voluntarily. The friendly admission of the latter encourages me 
 to hope that such of the former at least as were bound to French ports, or to 
 the ports of the allies of France, or to the United States, especially those in 
 ballast, will be immediately released, and that orders will be given to bring on 
 the trials of the remainder, should such a course be judged indispensable, with- 
 out any unnecessary delay. 
 
 The measure for which I now ask, being in perfect accord with the friendly 
 sentiments which prevail between the two countries, I persuade myself will ob- 
 tain the early assent of his Majesty. 
 
 I pray your Excellency to accept the assurances of my highest considera- 
 tion. 
 
 (Signed) Jonathan Ettssell. 
 
 The Duke of Bassano, &c., &c. 
 
Ixxi 
 
 APPENDIX, 
 
 
 
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APPENDIX. Ixxii 
 
 »S. [*72] 
 
 Mr. Russell to the Secretary of State. 
 
 Pakis, 9th of June, 1811. 
 
 Sir, — The case of the New Orleans packet having apparently excited con- 
 siderable interest, it may not be unacceptable to you to receive a more parti- 
 cular account of it than I have hitherto transmitted. 
 
 This vessel, owned by Mr. Alexander Ruden, of New York, left that place 
 on the 25th of July, with a clearance for Lisbon, but actually destined for 
 Gibraltar. Her cargo, likewise the property of Mr. Ruden, consisted of 207 
 whole tierces, and 31 half tierces, of rice, 330 bags of Surinam cocoa, 10 
 hogsheads of tobacco, 6 tierces of hams, 50 barrels of pork, 60 barrels of beef, 
 200 barrels of flour, 30 tierces of beans, and 64 firkins of butter. On her 
 passage to Gibraltar she was boarded by an English frigate and an English 
 schooner, and, after a short detention, allowed to proceed. On arriving at 
 Gibraltar, the 26th of August, Mr. Munroe, the supercargo, proceeded to sell 
 the cargo, and actually disposed of the flour, the beans, and the butter, when 
 about the 20th of September, a packet arrived there from England, bringing 
 newspapers containing the publication of the letter from the Duke of Cadore of 
 the 5th of August. On the receipt of this intelligence, Mr. Munroe immedi- 
 ately suspended his sales, and after having consulted with Mr. Hackley, the 
 American consul at Cadiz, he determined to proceed with the remainder of 
 his cargo to Bordeaux. He remained, however, at Gibraltar until the 22d of 
 October, that he might not arrive in France before the 1st of November, the 
 day on which the Berlin and Milan decrees were to cease to operate. He ar- 
 rived in the Garonne on the 14th of November, but by reason of his quaran- 
 tine, did not reach Bordeaux before the 3d of December. On the 5th of this 
 month the director of the customs there seized the New Orleans packet, and 
 her cargo, under the Milan decrees of the 23d November, and 17th December, 
 1807, expressly set forth, for having come from an English port, and for hav- 
 ing been visited by an English vessel of war. These facts having been stated 
 to me by Mr. Munroe, and by Mr. Meyer, the American vice-consul at Bor- 
 deaux, and the principal one, that of the seizure under the Milan decrees being 
 established by the proces verbal put into my hands by Mr. Martini, one of the 
 consignees of the cargo, I conceived it to be my duty not to suffer the transac- 
 tion to pass unnoticed, and thereby permit it to grow into a violation of the 
 engagements of this government. While I was considering the most proper 
 mode of bringing the conduct of the custom-hous^ officer at the port under the 
 eyes of his superiors, I learnt the arrival of the Essex at L'Orient. From the 
 time at which this frigate was reported to have left the United States, I had no 
 doubt that she had brought the proclamation of the President, announcing the 
 revocation of the very decrees under which this precipitate seizure had been 
 made. I could but think, therefore, that it was important to afford to this 
 government an opportunity of disavowing the conduct of its officer, so incom- 
 
 30* 
 
Ixxiii APPENDIX. 
 
 patible with the engagements on which the President had in all probability 
 reposed with confidence, in season to show that this confidence had not been 
 mistimed or misplaced. To have waited for the receipt of the proclamation, 
 in order to make use of it for the liberation of the New Orleans packet, ap- 
 peared to me a preposterous and unworthy course of proceeding, and to be 
 nothing better than absurdly and basely employing the declaration of the Pre- 
 sident, that the Berlin and Milan- decrees had been revoked, as the means of 
 obtaining their revocation. I believed it became me to take higher ground ; 
 and, without confining myself to the mode best calculated to recover the pro- 
 perty, to pursue that which the dignity of the American government required. 
 
 A, crisis, in my -opinion, presented itself, which was to decide whether the 
 French edicts were retracted as a preliminary to the execution of our law, or 
 whether, by the non-performance of one party and the prompt performance of 
 the other, the order in which these measures ought to stand, was to be reversed, 
 and the American government shuffled into the lead, where national honor and 
 the law required it to follow. Uncertain what would be the conduct of this 
 government, but clear what it ought to be, I thought it politic to 
 [ * 73 ] * present briefly the honest construction of the terms in which the 
 revocation of the decrees was communicated on the 5th of August, 
 that the conditions might not be tortured into a pretext for continuing them. I 
 believed this to be the more necessary, as no occasion hitherto occurred for 
 offering such an interpretation. I likewise supposed it to be desirable to take 
 from this government, by a concise statement of facts, the power of imputing 
 neglect to the United States, in performing the act required of them, for the 
 purpose of finding, in this neglect, a color for again executing the decrees. 
 These were my views in writing promptly and frankly on the occasion. 
 
 So acceptable, indeed, did I suppose it would be to the feelings of the Ame- 
 rican government, to obtain at least an explanation of an act ostensibly proving 
 the continued operation of the decrees, previous to communicating the procla- 
 tion of the President, announcing their revocation, that although I received this 
 proclamation on the 13th of December, I deferred the communication of it to 
 the Duke of Cadore until the 17th of that month ; nor should I then have com- 
 municated it, had not an interview with him, on the 15th, led me to believe 
 that much tirpe might be necessary to procure official reports from the custom- 
 house relative to the seizure in question, and that until these reports were 
 received, it would be impossible formally to explain or correct this proceeding. 
 When, however, I declined, uninstructed as I was, incurring the responsibility 
 of this protracted delay, and decided on communicating the proclamation be- 
 fore a satisfactory explanation was received, I took care to guard against any 
 misconstruction, by explicitly declaring, at the outset, that this proclamation 
 " had been issued alone on the ground that the revocation of the Berlin and 
 Milan decrees did not depend on any condition previously to be performed by 
 the United States." 
 
 The custom-house officers at Bordeaux commenced unlading the New Or- 
 leans packet on the 10th of December, and completed this work on the 30th 
 of that month, as appears by their proces verbal of those dates. That of the 
 20th expressly declares, that the confiscation of this property was to be pur- 
 
APPENDIX. Ixxiv 
 
 sued before the Imperial Council of Prizes at Paris, according to the decrees 
 of the 23d November and 17th December, 1807, or, in other words, the 
 decrees of Milan. The decree of the 23d of March, or the Eambouillet de- 
 cree, is also mentioned ; but as I wrote my note of the 10th of December Vvith 
 a view only to the letter of the Duke of Cadore, announcing the revocation of 
 the Berlin and Milan decrees, and as the proces verbal of the 5th appears to 
 waive the application of the Eambouillet decree as unnecessary, I took no 
 notice of it. 
 
 On Monday, the 17th of December, my remonstrance was submitted to a 
 council of commerce, and referred by it to the director-general of the customs 
 for his report. From this time, all further proceedings against the New Or- 
 leans packet were suspended. The papers were not transmitted to the Council 
 of Prizes,- nor a prosecution instituted before that tribunal for the confiscation 
 of the property, as was professedly tlie intention of the officers concerned in 
 the seizure. This prosecution was not only abandoned, but on the 9th of 
 January the vessel and cargo were placed at the disposition of the consignees, 
 on giving bond to pay the estimated amount, should it definitely be so decided. 
 Nothing is now wanting to complete the liberation of the New Orleans packet 
 and her cargo, but the cancelling of this bond. 
 
 It appears, therefore, that the remonstrance of the 10th of December arrested 
 the proceeding complained of, before it had assumed a definitive character, or 
 unequivocally become a breach of faith, and not only rescued the property 
 from the seizure with which it had been visited, but, by procuring its admis- 
 sion, placed it in a situation more favorable than that of many other vessels 
 and cargoes, which continued to be holden in a kind of mortmain by the sus- 
 pension of all proceedings with regard to them. 
 
 I have the honor to be, &c., &c. 
 (Signed) Jona. Russell. 
 
 Hon. Secretary of the United States. 
 
 P. S. July the 5th. I have the satisfaction to announce to you, that since 
 writing the above, an order has been given to cancel the bond, and a 
 letter just received from the * commercial agent of the United States [ * 74 ] 
 at Bordeaux, informs me that it is actually cancelled. 
 
 T. 
 
 Mr. Russell to Mr. Pinckney. 
 
 Paris, December 1, 1810. 
 SiE, — As nothing has transpired here of sufficient importance to be com- 
 municated by a special messenger, and as no safe private conveyance has 
 hitherto presented itself till now, to acknowledge the receipt of your letters 
 under dates of the 7th and 28th of October, no event within my knowledge 
 
Ixxiv APPENDIX. 
 
 has occurred, either before or since the 1st of November, to vary the instruc- 
 tion given by us to the very positive and precise assurances of the Duke of 
 Cadore, on the 5th of August, relative to the revocation of the Berlin and Mi- 
 lan'decrees. That these decrees have not been executed for an entire month, 
 on any vessel arriving during that time, in any of the ports of France, may, 
 when connected with the terms in which their revocation was announced, for- 
 tify the presumption that they have ceased to operate. I know of no better * 
 evidence than this, which the negative character of the case admits, or how 
 the non-existence of an edict can be proved, except by the promulgation of its 
 repeal, and its subsequent non-execution. 
 
 Our attention here is now turned towards England and the United States. 
 The performance of one of the conditions on which the revocation of the de- 
 crees was predicated, and which is essential to render it permanent, is anx- 
 iously expected. And it is devoutly to be wished, that England, by evincing 
 the sincerity of her former professions, may save the United States from the 
 necessity of resorting to the measure which exclusively depends on them. 
 
 I need not suggest to you the importance of transmitting hither, as early as 
 possible, any information of a decided character which you may possess rela- 
 tive to this subject, as an impatience is already betrayed here to learn that one 
 or the other of the conditions has been performed. 
 
 I am. Sir, with great respect, 
 
 Your faithful servant, 
 (Signed) Jona. Russell. 
 
 His Excellency William Pinckney, &c. 
 
 Mr. Russell to the Secretary of State. 
 
 Pakis, 8th May, 1811. 
 
 SiK, — I had the honor to address to you, on the 6th inst., by various ports, 
 several copies of the note of the Duke of Bassano to me on the 4th, containing 
 a list of the vessels, the admission of whose cargoes had been authorized by 
 the emperor. 
 
 This list comprises all the American vessels which had arrived, without 
 capture, in the ports of France or the kirfgdom of Italy, since the 1st of No- 
 vember, and which had not already been admitted, excepting the schooner 
 Friendship. 
 
 ' The papers of The Frienship had been mislaid at the custom-house, and no 
 report of her case made to the emperor. 
 
 As the New Orleans packet and her cargo had been given up, on bond, in 
 January last, there can be no longer any question with regard to their admis- 
 sion ; but to make their liberation complete, the bond should be cancelled. 
 
APPENDIX. Ixxv 
 
 
 
 All the vessels mentioned in the list, excepting The Grace Ann Greene, 
 had come direct from the United States, without having done or sub- 
 mitted to any known act which could * have subjected them to the [ * 75 ] 
 operation of the Berlin and Milan decrees, had these decrees conti- 
 nued in force. 
 
 The Grace Ann Greene stopped at Gibraltar, remained many days there, 
 and in proceeding thence to Marseilles was captured by an English vessel of 
 war. The captain of The Grace Ann Greene, with a few of his people, rose 
 upon th^ British prize crew, retook his vessel from them, and carried her and 
 them into the port to which he was bound. 
 
 The captain considered this recapture of his vessel as an act of resistance to 
 the British orders in council, and as exempting his property from the operation 
 of the French decrees, professedly issued in retaliation of those orders. He 
 likewise made a merit of delivering to this government nine of its enemies, to 
 be treated as prisoners of war. 
 
 His vessel was liberated in December, and his cargo the beginning of April 
 last ; and there is some difficulty in precisely ascertaining whether this libera- 
 tion was predicated on the general revocation of the Berlin and Milan decrees, 
 or on a special exemption from them, owing to the particular circumstances of 
 the case. 
 
 It is somewhat singular this vessel was placed on the list of the 4th inst., 
 when she had been liberated, and her cargo admitted so long before. 
 
 It may not be improper to remark, that no American vessel, captured since 
 the 1st of November, has yet been released or had a trial. 
 
 These are the explanations which belong to the measure I had the honor to 
 communicate to you on the 6th inst., and may afford some assistance in form- . 
 ing a just appreciation of its extent and character. 
 I have the honor to be, Sir, 
 
 With great consideration and respect, 
 
 Your most faithful and assured servant, 
 (Signed) Jona. Eussell'. 
 
 U. 
 
 ADMIRALTY PRIZE COURT. 
 
 Appeared personally Jonathan Russell, of Bentinck Street, Manchester 
 Square, charg^ des affaires of the government of the United States of America, 
 at the court of his Britannic Majesty, and made oath, that he was resident at 
 Paris from the 1st of November, 1810, to the month of September, 1811, in 
 the same capacity at the court of France ; and that he verily believes, 
 that during that period, no American vessel or cargo was condemned for 
 a violation of the Berlin and Milan decrees, which had been captured 
 after the 1st of November, 1810 ; and he believes that such a condem- 
 
Ixxvi APPENDIX. 
 
 nation could not have taken place without information thereof having reached 
 him. And the deponent further saith, that several cases came to his 
 knowledge, in which restitution had been decreed to the claimants, although 
 the vessels seized would have been liable to condemnation under the said 
 Berlin or Milan decrees, had they continued to be put into execution ; and 
 the deponent further saith, that he had been ofRcially informed by the Ameri- 
 can minister resident at Paris, that from the said month of September, 1811, to 
 the 2d day of the month of March, 1812, no condemnation under the said Ber- 
 lin and Milan decrees had taken place, and that there had not been a single 
 instance of their application to an American vessel or cargo since the month 
 of September, 1811, though many instances had occurred to which they must 
 have been applied had they been in vigor ; but that many American vessels 
 and cargoes had been restored to the lawful owners thereof, which would have 
 violated the said decrees had they been in force. And the deponent further 
 saith, he hath no doubt but more specific information as to cases restored in the 
 French courts of prize might be procured from the records of the said pro- 
 ceedings ; and the deponent further saith, that the exhibits hereto annexed, 
 marked (a.) and (b.) are two letters which he has received, namely, the for- 
 mer on or about the 7th day of February last, and the latter the end 
 [ * 76 ] of March * last, from Joel Barlow, Esquire, the minister plenipoten- 
 tiary of the government of the United States of America at the court 
 of France, and are, as he doth verily and in his conscience believe, true and 
 genuine ; and that the name and subscription of J. Barlow, set and subscribed 
 to the said letters, are of the proper handwriting and subscription of the said 
 J. Barlow, Esquire. 
 
 Jon. Russell. 
 27th July, 1812. The said Jonathan 
 
 Eussell was duly sworn to the truth 
 
 of this affidavit. 
 
 Before me, S. Lttshington, Sur. 
 
 Present, George Jennee, Not. Pub. 
 
 (A.) 
 
 Pakis, 29th January, 1812. 
 Dear Sib, — The ship Acastus, Captain Cottle, from Norfolk, bound to 
 Tonningen, with tobacco, had been boarded by an English frigate, and was 
 taken by a French privateer, and brought into Fecamp, for the fact of having 
 been so boarded. This was in November last. On the 2d of December I 
 stated the facts to the Duke of Bassano, and in a fevv days after the ship and 
 cargo were ordered, by the emperor, to be restored to the owners, on condi- 
 tion that she had not violated the French navigation laws, which latter question 
 was sent to the Council of Prizes to determine. The council determined that 
 no such violation had taken place, and the ship and cargo were definitively 
 restored to Captain Cottle. To the above fact I can add, that since my resi- 
 dence here several American vessels with cargoes have arrived, and been ad- 
 
APPENDIX. , Ixxvii 
 
 mitted in the ports of France, after having touched in England, the fact heing 
 declared ; and there is no instance, within that period, of a vessel, in either of 
 the cases of the Berlin and Milan decrees, being detained or molested by the 
 French government. 
 
 With great respect and friendship. 
 
 Your obedient servant, 
 
 J. Barlow. 
 
 I, the undersigned, charge des affairs of the United Slates of America, near 
 his Britannic Majesty, do hereby certify, that the name and signature " J. Bar- 
 low," subscribed to the foregoing letter, is the proper handwriting and signa- 
 ture of Joel Barlow, minister plenipotentiary of the said United States at Paris, 
 and entitled to full faith and credit. 
 
 Jon. Russell. 
 
 Honorable Mr. Russell. 
 
 (B.) 
 
 Paris, 2d March, 1812. 
 
 Dear Sir, — It seems, from a variety of documents that I have seen, and 
 among others, the decision of Sir William Scott, in the case of the ship Fox, 
 that the British government requires more proof of the effectual revocation by 
 the French government of the Berlin and Milan decrees. Though it is not 
 easy to perceive what purpose such additional proof is to answer, either for 
 obtaining justice or for showing why it is refused, yet I herewith send you a 
 few cases in addition to what have already been furnished. 
 
 Among these, I believe you will find such as will touch every pqjpt that 
 was contemplated in those decrees, to prove them all to have been removed. 
 If not, and still further proof after this should be deemed necessary, I can 
 doubtless furnish it ; for the subject is not exhausted, though your patience 
 may be. 
 
 l^t. The schooner Fly, Addams, of and from New York, loaded 
 with cotton, sugar, and * coffee, bound to St. Petersburg, taken by [ *77 ] 
 an English cruiser, and carried into Cowes, thence released, came 
 into Havre, declared the facts as above entered, sold her cargo, reloaded with 
 French goods, and departed without molestation. 
 
 2d. The brig Ann Maria, of and from New York, Daniel Campbell, master, 
 bound to a port in France, loaded with potash, cotton, staves, put into Fal- 
 mouth, then came to Morlaix, entered, sold, bought, reloaded, and departed as 
 above. 
 
 3d.' Ship Neptune, Hopkins, bound from London to Charlestown, in ballast, 
 taken, brought into Dieppe, restored by a decree of the emperor, and departed 
 again in ballast. 
 
 4th. Ship Marquis de Someruelles, with indigo, fish, cotton, bound to Civita 
 Vecchia, boarded by a British frigate, arrived at her port, declared the fact, 
 entered, sold, and is now reloading for the United States. 
 
Ixxvii APPENDIX. 
 
 5th. Ship Phebe, from Boston to Civita Vecchia, colonial produce, loaded as 
 above, arrived, entered, sold, and now reloading for departure. 
 
 6th. Ship Recovery, of Boston, with pepper, loaded, arrived,, entered as 
 above, at the same place, how selling her cargo. 
 
 7th. Brig Star, bound to Naples, with colonial produce, taken and carried 
 into Toulon, for having touched at Gibraltar, under, pretence of violation of 
 the decrees, and restored by the emperor, on the express ground that the 
 decrees no longer existed as applicable to the United States. 
 
 It would be wrong to allege that any of these vessels were protected by spe- 
 cial licenses. In the first place, only three of the seven had licenses ; those 
 were The Fly, The Phebe, and The Recovery. Secondly, it is well known 
 that licenses are not, and never were given as protections against the effect of 
 these decrees ; they have nothing to do with the decrees. The object of the 
 licenses given to vessels of the United States, is distinctly defined to be merely 
 to guard against false papers, and to prove the regularity of the voyage ; they 
 are used only for colonial produce, and not at all for the produce of the United 
 States ; and we see in every instance, that a vessel loaded wholly with pro- 
 duce of the United States, or in ballast, is respected by the government here ; 
 at least I know it has been so in every inslance since my arrival in September 
 last ; and there have been, I have no doubt, not less than thirty or forty such 
 vessels in France within that period. But a vessel loaded with colonial pro- 
 duce, and sailing without such a license, would be certainly confiscated, whe- 
 ther she had violated the supposed decrees or not. Indeed, the regulation 
 about licenses is not a maritime regulation, and it has nothing to do with neu- 
 tral rights. It is, strictly speaking, a relaxation of the French Navigation Act, 
 in favor of such particular persons as obtain them, to enable such persons to 
 bring goods of an origin foreign to the United States and France. 
 
 It is the same as if a vessel of the United States should, by a special relaxa- 
 tion of the English Navigation Act, obtain a license to bring Brazil sugars, or 
 French wines, into England. Such a license would surely not be considered 
 as a breach, on the part of England, of our neutral rights ; neither would it be 
 a breach of such rights to confiscate our vessels carrying such articles into 
 England without a license. The violation of the navigation'' law either of 
 France or England is not a neutral right, and therefore the punishment of such 
 violation is not a breach of neutral right. 
 
 I have taken the liberty to be thus particular on this head, because, in seve- 
 ral instances, during this discussion with the ministers of the British govern- 
 ment, I have seen a disposition in them to confound with the French decrees, 
 not only this affair of special licenses, but several regulations merely fiscal 
 and municipal, bearing no relation to neutral rights, or to the decrees in ques- 
 tion. 
 
 I will terminate this statement by repeating the solemn declaration that I 
 made to you in my letter of the 30th January ; and there is no impropriety in 
 the repetition, since a greater length of time has given a wider scope to the 
 declaration, that since my arrival, in September last, there has not been a sin- 
 gle instance of the application of the Berlin and Milan decrees to an American 
 vessel or cargo, and that I have not heard of their having been so applied 
 
APPENDIX. Ixxviii 
 
 since the 1st of November, 1810, though many instances have occurred 
 within that period, in which they must have been so applied, had they been in 
 vigor. 
 
 * It is difficult to conceive, probably impossible to procure, and [ * 78 ] 
 certainly insulting to require, a mass of evidence more positive than 
 this, or more conclusive to every unprejudiced mind. 
 
 With great respect and friendship, 
 
 Your obedient servant, 
 
 J. Baklow. 
 
 I, the undersigned, charge des affaires of the United States of America, at 
 the court of Great Britain, do hereby certify that the aforegoing letter was 
 received by me from Joel Barlow, minister plenipotentiary of the said United 
 States at Paris, and that the name and signature " J. Barlow," thereto sub- 
 scribed, is the proper handwriting and signature of the said Joel Barlow, and 
 that full faith and credit are due to it. 
 
 JONA. EUSSELL. 
 
 W. 
 
 Extract of a Letter from Mr. Russell, to the Secretary of State of the 
 
 United States, dated 
 
 Paris, 15th July, 1811. 
 " On the 5th of that month [May] I received a note [No. 1] from the Duke 
 of Bassano, dated the 4th, containing a list of sixteen American vessels, whose 
 cargoes had been admitted by order of the emperor ; I immediately transmitted 
 to you several copies of this communication, and I gave you on the 8th such 
 an account [No. 2] of the admitted cases as might aid you in forming a correct 
 estimate of the political value of the measure adopted in their favor. 
 
 " Although I was fully impressed with the importance of an early decision 
 in favor of captured vessels, none of which had been included in the list above- 
 mentioned, yet I deemed it proper to wait a few days before I made an appli- 
 cation upon the subject. By this delay I gave the government here an oppor- 
 tunity of obtaining the necessary information concerning these cases, and of 
 pursuing spontaneously the course which the relations between the two coun- 
 tries appeared to require. On the 11th, however, having learnt at the council 
 of prizes that no new order had been received there, I judged it to be my duty 
 no longer to remain silent, lest this government should erroneously suppose, 
 that what had been done was completely satisfactory to the United States, and, 
 construing my silence into an acquiescence in this opinion, neglect to do more. 
 I therefore on that day addressed to the Duke of Bassano my note, [No. 3,] with 
 a list of American vessels captured since 1st of November. On the 16th I 
 learnt that he had laid this note, with a general report on it, before the empe- 
 EDW. 31 
 
Ixxix APPENDIX. 
 
 ror ; but that his Majesty declined talking any decision with regard to it, before 
 it had been submitted to a council of commerce. Unfortunately, this council 
 did not meet before the departure of the emperor for Cherbourg ; .and during 
 his absence, and the festivals which succeeded it, there was no assemblage 
 of this body. 
 
 " Immediately on receiving the communication of the Duke of Bassano, of 
 the 4th of May, I addressed him a note [No. 4] concerning the brig Good In- 
 tent, detained at St. Andero. Although this vessel had in fact been captured, 
 yet, from the peculiar circumstances of the case, I hoped that she would be 
 placed on the same footing as those which had been admitted. The answer 
 [No. 5] which was returned by the Duke of BasSano, dated the 25th and 
 received the 28th, announced to me, however, that this affair must be carried 
 before the council of prizes. Wishing to rescue this case from this inauspi- 
 cieus mode of proceeding, I again addressed him in relation to it, in a note 
 [No. 6] on the 2d of June. If I could not obtain at once the restoration of 
 this vessel, it was desirable, fit least, that she should be admitted to the benefit 
 of the general measure, which I insinuated might be taken in favor of the cap- 
 tured class mentioned in my note of the 11th of May. 
 
 " As in this note I have stated the case of The Good Intent to be analogous 
 to those of The Hare and The John, it may be proper to explain to you both 
 the points of resemblance and diversity, in order to reconcile this 
 [ * 79 ] note with my declaration, that no captured vessel * was on the list 
 of the 4th of May. The cases agree in the destination to places 
 under the authority of France, and in the arrestation by launches in the ser- 
 vice of the French government ; they differ in The Hare and John having 
 already, before they were taken, arrived at the port, and within the territorial 
 jurisdiction of the country to which they were bound, and The Good Intent 
 having been taken without such jurisdiction, and conducted to a port to which 
 she was not destined. The taking possession of The Hare and The John may 
 be considered, then, as a seizure in port, and that of The Good Intent as a cap- 
 ture on the high seas. 
 
 " On perceiving that the schooner Friendship was not named in the list of 
 admitted vessels, I caused inquiry to be made at the custom-house concerning 
 the cause of this omission. It was stated that her papers had been mislaid, 
 but that search was making for them, and that, when found, a report would 
 immediately be made. I waited for this report until the 18th of May ; but 
 finding it had not been made, I conceived it might be useful, in order to acce- 
 lerate it, and to render complete the admission of the entire class to which this 
 case belonged, to attract towards The Friendship the attention of the minister 
 of foreign relations. With this view, I presented to him my note [No. 7] of 
 that date. 
 
 " Having reflected much on the condition attached to the admission of the 
 American cargoes, to export two thirds of the proceeds in silks, and being per- 
 suaded that the tendency of this restriction, added to the dangers of a vigilant 
 blockade, and to, the exactions of excessive tariff, was to annihilate all commer- 
 cial intercourse between the two countries, I believed it would not be improper 
 for me to offer to this government a few remarks on the subject. This I was 
 
APPENDIX. Ixxx 
 
 the more inclined to do, as it was to be apprehended that this condition was 
 not imposed as an expedient, for temporary purposes only, but that it was in- 
 tended to be continued as the essential part of a permanent system. In a note, 
 therefore, of the 10th of June, [No. 8,] I suggested to the Duke of Bassano 
 the evils which might be expected naturally to result from the operation of this 
 restriction on exports. It is indeed apparent, that a trade that has to run the 
 gauntlet of a British blockade, and is crushed with extravagant duties inwards, 
 and shackled with this singular restriction outwards, cannot continue. 
 
 " On the 14th of June, Mr. Hamilton, of The John Adams, reached Paris, 
 and informed me that this vessel had arrived at Cherbourg. Unwilling to close 
 my despatches by her, without being able to communicate something of a more 
 definite and satisfactory character than any thing which had hitherto transpired, 
 I immediately called at the office of foreign relations, but the minister being 
 at St. Cloud, I was obliged to postpone the interview which I sought until the 
 Tuesday following. At this interview I stated to him the arrival of the fri- 
 gate, and my solicitude to transmit by her to the United States some act of his 
 government, justifying the expectation with which the important law which she 
 had brought hither had undoubtedly been passed. I urged particularly a reply 
 to my note of the 1 1 th of May, relative to the captured vessels, and observed, 
 that although the mere pecuniary value of this property might not be great, 
 yet in a political point of view its immediate liberation was of the utmost con- 
 sequence. I intimated to him, at the same time, that my anxiety was such 
 to communicate, by The John Adams, a decision on these captures to the 
 American government, that I should detain this vessel until I had received it. 
 He replied, that his sentiments accorded perfectly with mine in this matter, 
 and ascribed the delay which had taken place to the same causes as I have 
 assigned. He assured me, however, that he would immediately occupy him- 
 self again with this business, and, unless a council of commerce should be 
 holden within a few days, he would make a special report to the emperor, and 
 endeavor to obtain a decision from him in person. He approved my intention 
 of detaining the frigate, and engaged to do whatever might depend on him, to 
 enable me to despatch her with satisfaction. He added, that he had already 
 made inquiries of the competent authorities concerning The Good Intent and 
 The Friendship, and that when their reports should be received, he would do 
 whatever the circumstances of the cases might warrant. 
 
 " I now suggested to him the evils which resulted to our commercial inter- 
 course with France, from the great uncertainty which attended it, 
 owing to the total want on their * part of clear and general regula- [* 80] 
 tions. After making a few observations in explanation of this remark, 
 I requested to know if he would have any communication to make to me on 
 the subject previous to the sailing of The John Adams. I was led to make 
 this inquiry from information which I had indirectly obtained, that several reso- 
 lutions for the regulation of our trade had been definitively decreed. He 
 replied, that no such communication would be made here, but that Mr. Serru- 
 rier would be fully instructed on this head. The resolutions just mentioned, as 
 far as I have learnt, are to admit the produce of the United States (except 
 sugar) without special permits or licenses ; to admit coifee, sugar, and other 
 
Ixxx APPENDIX. 
 
 colonial produce, with such permits or licenses, and to prohibit every thing 
 arriving from Great Britain, or places under her control. 
 
 " He again mentioned the discovery of the regulation of the year twelve, 
 authorizing the certificates of origin for French ports only, or for ports in pos- 
 session of the French armies; but declared that after the most thorough exa- 
 mination of the archives of his department, no document or record had been 
 found permitting these certificates to be granted for the ports of neutral or 
 allied powers. He again, however, professed a favorable disposition towards 
 our negotiations in Denmark, and said, " Le succes de la mission de Mons. 
 Erving s'accorderait parfaitement avec nos sentimens, et ne contrarierait nulle- 
 ment notre politique.' 
 
 " With the view above stated, I detained The John Adams until the 9th 
 inst. ; I had from time to time, in the meanwhile, informed myself of the pro- 
 ceedings with regard to the captured vessels, and ascertained that in fact the 
 Duke of Bassano had made a report in relation to them. The emperor, it ap- 
 pears, however, still wished for the decision of his council of commerce, and 
 the report was laid before them on the 1st of this month, being the first time 
 they had assembled since the date of my letter of the 11th of May. I waited 
 in daily expectation of hearing the result of their deliberations until the 9th 
 instant, when conceiving sufficient time had been allowed for receiving it, and 
 not feeling perfectly at my ease under the resposibility I was incurring for the 
 unauthorized detention of The John Adams, I determined to learn from the 
 Duke of Bassano in person what I might reasonably expect in the matter. I 
 accordingly procured an interview with him on the day last mentioned. I 
 reminded him of what had passed at our conference on the 18th ultimo, and 
 told him, that in consequence thereof I had kept the ship ; but that I could not 
 with propriety detain her longer, without the evident prospect of obtaining 
 from the French government the release of the captured vessels. He ex- 
 pressed a conviction of the justness of my observations, and assured me that 
 he was in hourly expectation of receiving a decision on the captured cases, 
 and hoped that The John Adams might not be permitted to return without it. 
 I thereupon consented to keep my despatches open till the 13th, assuring him 
 that I could not take upon myself to protract the detention of The John Adams 
 beyond that period. 
 
 " On the 13th, about one o'clock, I received a note from the Duke of Bas- 
 sano, of which the Inclosed [No. 9] is a copy. I waited upon him immedi- 
 ately, and was informed that The Two Brothers, The Good Intent, and The 
 Star, three of the captured vessels, had been liberated. He added, that nq 
 unnecessary delay would be allowed in deciding upon the whole. 
 
 " I shall despatch Mr. Hamilton this day, and I shall send with him a mes- 
 senger to be landed on the other side, who will carry to Mr. Smith an account 
 [No. 10] of what has been done here, to be used by him as he shall judge 
 proper." 
 
APPENDIX. Ixxxi 
 
 Translation of a Letter from General Turreau to the Secretary of State, 
 
 dated 
 
 November 14, 1810. 
 
 SiE, — Although you may have been already informed, through another 
 official channel, of the repeal of the decrees of Berlin and Milan, it 
 is agreeable to me to have to confirm to * you this new liberal dispo- [ * 81 ] 
 sition of my court towards the government of the States of the Union. 
 
 You will recollect, without doubt, sir, that these decrees were adopted in 
 retaliation for the multiplied measures of England against the rights of neu- 
 trals, and especially against those of the United States ; and after this new 
 proof of deference to the wishes of your government, his Majesty, the emperor, 
 has room to believe, that it will make new efforts to withdraw the American 
 commerce from the yoke which the prohibitory acts of Great Britain have im- 
 posed upon it. You will at the same time observe, sir, that the clearly 
 expressed intention of my government is, that the renewal of commercial 
 intercourse between France and the United States cannot alter the system of 
 exclusion adopted by all Europe against all the products of the soil or of the 
 manufactures of England or her colonies — a system the wisdom and advan- 
 tage of which are already proved by its developement and its success ; and of 
 which, also, the United States, as an agricultural and commercial power, have 
 a particular interest in aiding and hastening the completion. Moreover, sir, 
 this measure of my government, and those which yours may think proper to 
 adopt, will prove the inutility of the efforts of the common enemy to break the 
 ties of friendship which a humane and generous policy has necessarily formed 
 between France and the United States, and which the actual crisis ought 
 to draw closer. We ought hereafter, sir, to hope, or rather we may be 
 assured, that new relations, still more close and more friendly, are about to 
 be formed between Americans and Frenchmen, and that these two people will 
 be more than ever convinced that their glory, their interest, and their happi- 
 ness, must eternally consecrate the principle and the conservation of these 
 relations. 
 
 I seize with eagerness this occasion, sir, of renewing to you the assurance 
 of my high consideration. 
 
 (Signed) Tuekeau. 
 
 31' 
 
INDEX. 
 
 The references in this index are to the marginal paging. 
 
 A. Page 
 
 Agency, Question of, sum allowed by registrar and merchants increased . 45-49 
 
 Admiralty Court, constitution of 313 
 
 Appendix. A, contains order in council, 19th November, 1806, respecting 
 trade to St. Domingo. — B, instruction, 11th February, 1807, relat- 
 ing to ships cleared out for Buenos Ayres. — C, order 15th July, 
 1807, respecting trade to St. Domingo. — D, judgment of Sir. W. 
 Grant, in the Court of Appeal, in the case of The Pelican. — Or- 
 der of 7th January, 1807, restricting trade -witli enemies' ports. — 
 Order, 11th November, 1807. — French decrees, 21st November, 
 
 1806, and 26th December, 1807. — Spanish decree, 19th February, 
 
 1807. — Order, 21st September, 1808, directing restitution of Por- 
 tuguese property. — Order, 11th November, 1807, prohibiting the 
 sale of enemies' ships. — E, statement of the case of The Paisley. 
 — F, order respecting cessation of hostilities with Spain. — G, 
 order, 4th May, 1808, respecting blockade of Copenhagen. — H, 
 order, 26th April, 1809. — K, order, 17th May, 1809. — Letters 
 translated in the case of The Kapid. — Order, 31st May, 1809, 
 respecting trade to Heligoland. — Papers invoked from The Caro- 
 line. — French decrees. — L, order, 2d May, 18iO, respecting fish- 
 ing vessels. — N, extract from Cadiz Gazette. — O, letter from 
 Mr. Hamilton to the king's proctor, &c. — Letter from Mr. Kussell 
 to Lord Castlereagh, with the decree purporting to repeal Berlin 
 and Milan decrees. — P, message to the Conservative Senate, 
 March 10. — Q, British declaration, 23d June, 1812. — R, letter 
 from Mr. Russell to the Duke of Bassano. — S, from Mr. Russell to 
 the American secretary of state. — T, from Mr. Russell to Mr. 
 Pinckney. — V, from Mr. Russell to the secretary of state. — TJ, 
 affidavit of Mr. Russell, &c. — W, extract of a letter from Mr. Rus- 
 sell to the American secretary. — X, letter from General Turreau 
 to the secretary of state. 
 
 B. 
 
 Bail Bond. Party appearing for the master, on obtaining Letters of Marque, 
 
 binds himself 85 
 
INBEX. 367 
 
 Berlin and Milan Decrees, revocation of, not proved . 325 3^81 
 
 Blockade. Neutral vessel in ballast, not at liberty to proceed to a' blockaded ' 
 port for the purpose of bringing away a cargo purchased before the 
 
 commencement of the blockade 32 
 
 Sale of cargo by compulsion in blockaded port, the master having 
 
 gone in voluntarily ; excuse insufficient 188 
 
 imposed by order 26th April, 1809, not held to extend to places tem- 
 porarily in the possession of the enemy 191 
 
 breach of, excuse insufficient 198 
 
 Excuse, that the ship went in to procure a pilot for another port, in- 
 sufficient 203 
 
 of St. Sebastian's breach of 207 
 
 breach of, under the order of 26th April, 1809 ; condemnation . 311 
 
 Excuse, that permission to proceed was given by British officer 
 
 insufficient 249 
 
 Vessel coming out of a blockaded port, with her original cargo on 
 board, having gone in under stress of weather, restored . . 252 
 
 British Cruisers, deviation for the purpose of avoiding, how considered . . 208 
 British Officer, permission given by, to proceed to an interdicted port, not valid 249 
 
 c. 
 
 Capitulation. Public property withheld under a capitulation, and afterwards 
 
 seized, is property of the crown 112 
 
 terms of, protecting private property generally, will not protect 
 
 privateers 271 
 
 Captors' Expenses, allowed, deducting charges incurred by the vessel, in conse- 
 quence of her being carried into a wrong port . . .72 
 Cargo. Port of destination, if interdicted, must be considered as port of delivery 
 
 of cargo 42 
 
 Quantity of beech wood, described by master as ballast, held to be cargo 365 
 Certificates of Origin. Neutral vessel not furnished with, liable to pay salvage 
 
 on recapture 254 
 
 Cintra Convention, interpretation of 132 
 
 Code des Prises, (cited) 123 
 
 Condemnation, of a vessel In the port of an ally by a French tribunal, legal ; 
 
 title of British owner devested 101 
 
 Continuity of Voyage, not broken, by transshipment and sale at intermediate port 17 
 broken, by touching at a port of this country, for the 
 purpose of obtaining a license to go on . . . 54 
 Convoy.. Disobedience of orders of commanding officer, penalty ... 84 
 Costs and Damages, given on loss of a ship which had been captured on unjusti- 
 fiable grounds . . 50 
 
 Crown, takes ctim onere 233 
 
 D. 
 
 Dallas, Eeports by, of cases adjudged in the courts of the United States of Ame- 
 rica, (cited) 254 
 
 Decree, French, of 16th January, 1780, (cited) 123 
 
 Derelict, case of, two fifths given for salvage 179 
 
 Desertion. (See Wages.") 
 
368 INDEX. 
 
 Page 
 Despatches, conveyance of, in a neutral ship from a hostile port, to a consul of 
 the enemy, resident in a neutral country, not a ground of condem- 
 nation . . 225 
 
 from an agent of the enemy on board a neutral ship, going from a 
 neutral port to a port of the enemy ; plea of ignorance on part of 
 the neutral master, admitted 228 
 
 E. 
 
 Evidence, of master and mate in cases of blockade, considerations respecting . 261 
 of master in a suit for wages, admitted 235 
 
 F. 
 
 FreigM, demand of, on part of the crown, on suggestion that the cargo had actu- , 
 
 ally been sold in this country, rejected 56 ' 
 
 due where a neutral ship is brought in on account of the cargo . . 57 
 
 crown entitled to, though not decreed, prior to hostilities ... 73 
 Salvage given on freight, where it was in the course of being earned, at 
 
 the time of recapture 22'3 
 
 right of owners to deduct, from freight decreed to the crown, moneys 
 
 advanced to the master for the prosecution of his voyage . . . 232 
 
 for voyage not completed ; moiety given under the circumstances . . 246 
 
 upon articles condemned as not enumerated in the license, refused . 374 
 
 G. 
 
 Gibraltar, not within the Navigation Act 51 
 
 Greenwich Hospital. Forfeiture of one month's wages to, by seamen quitting the 
 
 ship before it is discharged 92 
 
 H. 
 
 Head Money, due for men who have escaped on shore, if on board at commence- 
 ment of attack 39 
 
 right to share in, limited to actual recaptors 280 
 
 Heligoland, trade of, confined to British ships 236 
 
 Hostilities, intervention of, suspends, but does not extinguish, the rights of claim- 
 ants • 62 
 
 cessation of, against Spain, held to extend to Spanish ports in posses- 
 sion of the French 182 
 
 I. 
 
 Instance Court. (See Wages, Jurisdiction, &c.) 
 
 J. 
 
 Joint Capture, claim of, by ships stationed at different points in support of the 
 
 blockade of Malta, established g 
 
 claim by revenue cutter to share with actual captors, on suggestion 
 
 of being in sight, rejected . g5 
 
 claim of, by the whole fleet, on the principle that the capture was 
 within the purposes of the association, established . . .126 
 Jurisdiction. Court of Admiralty has no authority to enforce municipal regula- 
 tions of America 241 
 
INDEX. 369 
 
 Page 
 K. 
 
 King's Slip, not entitled to salvage for rescuing transport employed on same ser- 
 vice 66 
 
 Rule for apportioning salvage between a king's ship and privateer . 270 
 
 L. 
 
 License, vitiated by changing the port of shipment 95 
 
 " to sail from any port with a cargo," will not protect a ship sailing from 
 
 a blockaded port, with a cargo taken in there 190 
 
 general rules for construing 328 
 
 Expiration of time, unless impeachable with fraud or want of due dili- 
 gence, not fatal 333 
 
 " to proceed in ballast to the port of an enemy," will not protect a vessel 
 
 carrying a cargo to the port of the enemy .... 337,365 
 
 Vessel proceeding under an expired license to the port of shipment in 
 ballast, for the purpose of bringing a cargo to this country under a 
 new license, actually obtained, but not on board, protected . . 339 
 Vessel proceeding to the Yadhe, under a license for a direct voyage to 
 
 this country, condemned 342 
 
 Vessel not protected by license on board, not intended to be applied to 
 
 this ship 344 
 
 The words " to whomsoever the property may appear to belong," 
 not being inserted in the license, enemy's property not protected 
 
 under it 347 
 
 to import a cargo in one vessel, good for the importation of the same 
 cargo in two vessels, and from a different port ; it being shown that 
 there was an impossibility of making the shipment at the port speci- 
 fied in the license 349 
 
 Embargo in the port of 'the enemy, a sufficient justification for not 
 loading the cargo within the time specified in the license, although 
 
 government had ceased to grant such licenses 355 
 
 ^ "to proceed from this country with a cargo," will protect the vessel 
 
 returning with the same cargo. 357 
 
 Condition of touching at Leith for convoy, not complied with ; license 
 
 invalidated 359 
 
 " to import a cargo into this country," will protect a vessel going in bal- 
 last to the port of shipment for that purpose 360 
 
 " to import corn," time extended ......... 361 
 
 " to import a cargo into this country," not vitiated by an ulterior desti- 
 nation to a port of the enemy, after paying duties at a British port, 
 
 and obtaining permission to proceed 363 
 
 " to carry corn to Norway," vitiated by the conveyance of military stores 364 
 " to bring a cargo to this country," not vitiated by touching for orders 
 
 at an interdicted port, not known to be such at the time of sailing . 366 
 vitiated by touching for orders at an interdicted port . . . .367 
 not vitiated, where permission was expressly given, to touch at an inter- 
 dicted port for orders 369 
 
 " to sail under any flag except the French," held to exclude French 
 ownership 370 
 
370 
 
 INDEX. 
 
 License, Continued. Page 
 not vitiated by the owner becoming a French subject during the trans- 
 action 371 
 
 ^ Condition of touching at Leith, for convoy, not complied with, condem- 
 nation ' 375 
 
 granted subsequent to the capture, no protection 377 
 
 Condition "to touch at Leith if proceeding to any port of this kingdom, 
 south of Hull," held not to include the ports of Ireland . . .379 
 
 M. 
 
 Master, right of, to sell ship in case of the necessity, without authority from 
 
 owners 118 
 
 a competent witness in a suit for wages 235 
 
 N. 
 
 National Character. Ports and places of St. Domingo, wrested from the French 
 by insurgent negroes, not deemed parts of the enemy's 
 
 colony 1 
 
 of Ionian republic 173 
 
 Navigation Act, does not apply to Gibraltar 61 
 
 iVam^'aiion iaws, ship condemned for breach of 135 
 
 O. 
 
 Orders in Council. Interposition of a British port, held to take voyage out of 
 
 the intendment of the order 7th January, 1807 . . 55 
 
 of 11th November, 1807, prohibiting transfer of enemy's ves- 
 sels, held not to extend to prize vessels . . . .122 
 
 Property of Spaniards resident in ports of Spain, under the 
 control of the French, protected by order of 4th July, 1808 182 
 
 of 7th January, 1807, held to prohibit trade between Prus- 
 sian ports 184 
 
 of 26th April, 1809, held not to affect places temporarily in 
 possession of the enemy . 191 
 
 Trade to Heligoland confined to British ships, by order of 
 31st May, 1809 . . , 236 
 
 Question under the order 7th May, 1810, prohibiting fishing 
 voyages to and from ports from which the British flag is 
 
 excluded 275 
 
 Or(fon«ances, French, of 1774 and 1778 (cited) 123 
 
 Owners, bound by act of agent 44 
 
 P. 
 
 Possession, cause of, suit not entertained by court in case of a foreign ship . 242 
 Privateer, operations of, against property on shore, limited by Prize Act to forti- 
 fied places 106, 113 
 
 Apportionment of salvage between king's ship and privateer . . 270 
 not within the terms of a capitulation, protecting private property 
 
 generally 271 
 
 Prize Act, interpretation of 186 
 
INDEX. 371 
 
 Page 
 Prize Agent. (See Agency.) 
 
 Prize Vessel, sale of, by tlie enemy, not within the restriction of the order in 
 
 council 11th November, 1807 123 
 
 Sale of, to a neutral under a sentence of condemnation, devests 
 
 interest of former British owner 244 
 
 Proceeds, transmission of, from Vice- Admiralty Court ; registrar not responsible 
 
 for safe arrival, if sent in the usual way of business .... 23 
 
 R. 
 
 Recapture. (See Salvage.") 
 
 Registrar, of Vice- Admiralty Courts, not responsible for loss of proceeds, if trans- 
 mitted under proper precautions » . 23 
 
 principal and deputy, responsibility of, in case of loss by misconduct . 27 
 Registrar and Merchants, report of, objected to on a question of agency ; sum 
 
 allowed by them increased . . ^ . . 45 
 Revenue Cutter, not entitled to share as joint captor, on ground of being In sight 
 
 only ^ . . . .65 
 
 Revenue Laws, breach of . . . • 289 
 
 S. 
 
 Salvage, demand of, by king's ship, against transport employed on the same ser- 
 vice, rejected 66 
 
 not limited by Prize Act where a ship has been voluntarily abandoned 
 
 by the enemy ; moiety given 80 
 
 Question, whether civil or military 115 
 
 on vessel purchased at sea, from the enemy by a neutral, for the pur- 
 pose of being restored to former owners 196 
 
 on property recaptured at Oporto 210 
 
 by joint operation of army and navy . . 213 
 
 by army only 213 
 
 on cargoes landed and warehoused 217 
 
 given on British, not on Portuguese, property recaptured at Oporto . 221 
 Value of property on which salvage is given, to be estimated at port of 
 
 restitution 222 
 
 on freight, where the ships were chartered out and home as one entire 
 
 voyage 223 
 
 Neutral ships not furnished with certificates of origin liable to pay sal- 
 vage on recapture 254 
 
 for rescue of ship already released on bail by4he enemy, not given . 265 
 rule of apportionment, between king's ship and privateer . . . 268 
 
 on Spanish ships recaptured from the enemy 279 
 
 St. Domingo. (See National Character.) 
 
 Setting forth for War. British prize vessel having been fitted out as privateer 
 by the enemy, although navigated as a merchant vessel 
 at the time of recapture, not restored to former owner 186 
 Ship, sale of, by master, without authority from the owners . . • . .118 
 
 restored to parties, appearing by the ship's papers and register to be the 
 owners, without prejudice to the rights of other claimants . . • 121 
 
372 INDEX. 
 
 Statutes. 
 
 2 Geo. II. c. 36, 1 -c ^c -L !• 
 37Geo.III.c. 73;^°'^^^^'"'"«°f^^S^= ^^ 
 
 39 Geo. III. c. 69, > -ur ^ t j- ^ j o* 
 
 S7Gep.m.c.73,\^^^^^^'^^'^^^^ ^^ 
 
 45 'Geo. III. c. 73, 3. 9. Capture of property on land by privateers . 106 
 
 ,.,7&8 Will. III. 0.22, Kt • *• a * 15K 
 
 - 13 & 14 Car: II. ell, I ^^^'8^*'°"^'='= ^^^ 
 
 7 Geo. III. c. 9, ) 
 
 8 Geo. III. 0. 22, f- 136 
 
 2"6rfJeo. m. c. 60,) 
 
 28 Geo. in. c. 6, 1 TOO 
 
 34 Geo. III. c. 68, j 
 
 45 Geo. III. c. 72. Prize Act 186 
 
 , 7 & 8 Will. III. e. 22, ) -r, , oQA 
 
 28 Geo. III. c. 6, 'I Revenue laws 290 
 
 . 34 Geo. HI. c. 35. Indemnity for governors of West India isles . 302 
 
 46 Geo. in. c. Ill, authorizing importation of certain articles under , 
 
 permission of governors 3Q3 
 
 28 Geo. III. c. 6, intercourse with America 310 
 
 48 Geo. in. Enabling council to grant licenses . . . .377 
 
 T. 
 
 Territory, occupation of, in time of peace, with concurrence of the .sovereign, 
 
 presumptive evidence of cession by treaty 1 74 
 
 Trading, purpose of selling vessel in the enemy's port, held to be a trading in 
 '? contravention of the order in council 345 
 
 W-' ' ■ ■ ■ '• '■ 
 
 V. 
 
 ' Vice- Admiralty Courts, practice of, in West Indies, to order sales of ships in 
 
 : cases of distress . . . . . . . . 118- 
 
 ' W. 
 
 TFa^'es, of mariners quitting the ship before her arrival in West India Docks, 
 
 forfeited . . . .' . ... . . . •. . 86 
 
 Master a competent witness in a suit for 235 
 
 suit for, on behalf of American, seamen serving on board an American 
 ship . . . . ' 239 
 
V-