1799. MARRYAT 2. WILSON. but nothing arifes upon that part of the article material to the prefent fubject. On the part of Mr. Marryat the Defendant in the action, it has been infifted by Mr. Rous who entered very fairly into the real merits of the cafe, that according to the true conftruction of this treaty, viewing it in all its parts and attending both to the letter and the fpirit of it, the trade to be carried on between the British territories in the Eaft Indies and the United States, is a direct and immediate trade from the United States to the British territories as well as from the British territories to the United States, which unquestionably muft be direct and immediate, it being exprefsly agreed that the veffels of the United States shall not carry any of the articles exported by them from the British territories in the Eaft Indies to any port or place except to fome port or place in America where the fame fhall be unladen; and confequently that the voyages infured from Bourdeaux and from Madeira not being protected by the policy were ex conceffis illegal. Mr. Rous's verbal criticism (a) upon the word "between was ingenious, and well fupported: but in truth there is hardly a word in the English language lefs precife in it's meaning or more indefinite in it's application than the word "between." According to the context it is ufed to exprefs the ftricteft local fense of to and from, or the moft remote relation which any one thing can have or bear to another. For inftance, when we fay that the inlet from the Western Ocean to the Mediterranean is between the coaft of Spain and the coaft of the empire of Morocco, it marks geographical lines precisely drawn. But if we were to say that the intercourfe between the coaft of Spain and that of the empire of Morocco was interrupted by the religious opinions and the habits of living prevailing in the two countries, the word "be"tween" would have no other effect than to point out the countries or nations whofe intercourfe is fpoken of as interrupted by the caufes enumerated, and would mean no more than what is meant by the fame word in the 11th article of this treaty where the expreffion is "between their respective people." When we leave (a) To prove that the word between meant to and from, Mr. Rous referred to the EMEA ITEPOENTA of John Horne Tooke, part 1ft, p. 404. ed. z. where it is faid to be a dual prepofition derived from the Anglo Saxon imperative be and zrezer or twain, and also to Johnfon's Dictionary, where it is interpreted "from one to an "other." this narrow ground of argument, and proceed to confider the whole context of this article, the generality of the expreffions, the most obvious interpretation of thofe expreffions, and all the probable and poffible confequences which may follow from our expofition of this article, the subject expands itself to an alarming magnitude, and the argument would take a very wide compass indeed, if it were now to be entered into for the first time: but after the very elaborate difcuffion which this caufe has undergone in the Court of King's Bench, where a folemn judgment was pronounced at the clofe of a fourth argument, and confidering that that judgment has now been fubmitted to our review upon arguments which, though very ably put, have not materially varied the ftate of the queftions which have been made and decided upon by that Court, we do not feel ourselves called upon to enter very much at large into the fubject, and I fhall content myself with ftating as fhortly as I can the grounds upon which the unanimous opinion of this Court that the judgment of the Court of King's Bench is not erroneous and ought to be affirmed may be fupported. The language of the 13th article is that the citizens of the United States may freely carry on a trade between the faid territories and the faid United States in articles not entirely prohibited. They are therefore not reftricted to trade in articles of the growth produce and manufacture of the United States: it is enough that the articles they trade in are not articles prohibited from being imported to the British territories in India, or exported from thence by any body. If then they propose to trade with the British territories in India in foreign commodities as they may do, they muft ufe means to furnish themselves with thofe commodities. In the nature of things it muft be done in a courfe of trade. The obvious courfe of trade is that they should carry their native commodities to other countries where they can be exchanged with the most advantage for articles proper for the East India market, and that they thould then proceed to India in order to carry on a trade there in those articles. I find nothing in the treaty which will warrant me in faying that it was the intention of the contracting parties that the trade conceded by the treaty fhould not be fo carried on. Mr. Rous found himself obliged to acknowledge that the citizens of the United States might within the terms of this treaty firft import into America the articles in which they propose to trade FF 2 1799. MARRYAT ข. WILSON. 1799. MARRYAT V. WILSON. trade with the British territories in India, and then export them from America in a direct voyage to the Eaft Indies, and he could not deny that they might have imported these articles into America even from London. Indeed it would have been a moft extraordinary ftate of things if they might have gone to every other market for the goods they wanted, but that the British market was excluded. And to the apparent difadvantage under which the citizens of the United States would carry on trade with the British territories in India fo conducted, Mr. Rous argued, that fo to understand the treaty would be only to give the fair and due preference to the great national commerce of the Eaft India Company. Whether this trade should have been conceded under any qualifications or restrictions is one thing, it having been conceded now, to attempt to cramp it by a narrow, rigorous, forced conftruction of the words of the treaty is another and a very different confideration. We cannot suppose that an indirect advantage was intended to be referv'd to the Eaft India Company by fo framing the treaty that the American trade might by conftruction be put under disadvantage; becaufe this would be a chicanery unworthy of the British government and contrary to the character of it's negociations, which have been at all times diftinguifhed for their good faith to a degree of candour which has been fuppofed fometimes to have expofed it to the hazard of being made the dupe of more refined politicians. The nature of the trade granted in my opinion fixes the conftruction of the grant. If it were neceflary to go farther ftrong arguments may be drawn from the context of this article and the contraft, which the comparing it with the preceding article, will produce. From the context it appears that the trade was to be free, fubject only to certain specific regulations. The citizens of the United States are put upon the fame footing as to duties with British fubjects. No question is proposed, no means of afcertaining the fact are provided, where they come from, though it is anxiously ftipulated where they are to go to. The words "original cargo" are to be found in the article and it was fuppofed they might be used as a ground to infer that the trade was to be direct from the United States. But "original cargo" is plainly fet in oppofition to the cargo to be taken in in India. The provifion refpecting it is that though the coafting trade is not permitted to the citizens of the United States, they may carry the cargo, which they originally brought brought with them, into the ports of the British territories from one port of delivery to another for the purpofe of a market. The word original ferves the purpofe for which it is ufed perfectly well, and it marks a total indifference to the queftion where the cargo was picked up. I have already had occafion to take notice that as to the cargo to be imported no other reftriction or qualification was in the view of the contracting parties than that it fhould confift of articles not exprefsly prohibited. But when this article is contrafted with the preceding article, the true conftruction of it will be feen in a ftill clearer point of view. The 12th article is in fubftance, that it shall be lawful for the citizens of the United States to carry to any of His Majefty's iflands and ports in the Weft Indies from the United States in their own veffels, not being above seventy tons, any goods or merchandize being of the growth manufacture or produce of the faid ftates, which British veffels might carry to the islands from the faid ftates, and that the citizens of the United States may purchase load and carry away in their faid veffels to the United States from the islands all fuch articles being of the growth manufacture or produce of the iflands as British veffels could carry from thence to the faid ftates, provided that the American veffels carry and land their cargoes in the United States only, it being agreed that the United States are to prohibit and reftrain the carrying any molaffes fugar coffee cocoa or cotton in American vessels either from His Majesty's islands or from the United States to any part of the world except the United States, and there is a provifo that British veffels may import from the islands into the United States, and may export from the United States to the islands, all articles of the growth produce or manufacture of the iflands or of the United States refpectively, which by the laws of the faid ftates might be then imported or exported. The trade to be carried on between the citizens of the United States and the British Weft India islands, by virtue of this article, is required to be in goods of the growth produce or manufacture of the islands and United States refpectively. This trade in the nature of it must be immediate and direct. It could not be in the contemplation of the contracting parties that it might be circuitous, except indeed within the limits of the United States and within the range of the British West India islands, and fo far as I take it, it is circuitous. The contracting parties could not look 1799. MARRYAT V. WILSON. 1799. MARRYAT V. WILSON. to fo remote a poffible cafe as that a citizen of the United States might load the native commodities of the United States in a foreign port, and therefore we are not driven to collect the meaning of this article from the precifion of the language it uses. Its language is however moft precife. The terminus à quo and the terminus ad quem are defigned with as much certainty as would be required in an indictment for not repairing a particular part of the King's highway. And to exclude all poffibility of mifapprehenfion, mark how entirely this trade was to be immediate and direct, a provifion is added that the United States are to prohibit the carrying goods of the produce of the Weft India islands in American veffels to any port of the world except the United States. Thus contrafted, thofe articles afford an illuftration of the internal evidence of the import and true intent and meaning of each confidered feparately, and the conclufion from the whole appears to us to be irresistible that the trade to be carried on under the 12th article between the United States and the British West India iflands is a direct trade, and that the trade to be carried on between the United States and the British territories in the Eaft Indies under the 13th article may be as circuitous as the enterprifing fpirit of commerce can make it. There may be reason to apprehend that such an intercourse with the British territories in the Eaft Indies may prove very injurious to the interefts of the East India Company, and to Great Britain in refpect of the great national commerce which is carried on by that Company. In particular there may be reafon to apprehend that this treaty will open a door to many of our own people whom the policy of our laws has fhut out from a direct trade to the East Indies. In truth it can hardly be expected that the spirit of commerce, too often found eluding laws made to keep it within bounds, that the lucri bonus odor fhould not embark British capital in this trade. This ought to have been forefeen, and therefore I conclude it was forefeen, and that it was found that the balance of advantage and difadvantage preponderated in favour of the treaty. If not; thofe who advised it will have to anfwer for it: the responsibility is not with us. We are not even the expounders of treaties. This treaty is brought under our confideration incidentally as an ingredient in a caufe in judgment before us: we only fay how it is to be undefood between the parties to this record. This we are bound do; and we have but one rule by which we are to govern 13 ourfelves. |