ourfelves. We are to conftrue this treaty as we would conftrue any other inftrument public or private. We are to collect from the nature of the fubject, from the words and from the context, the true intent and meaning of the contracting parties, whether they are A. and B., or happen to be two independent ftates. The Judges who adminifter the municipal laws of one of thofe ftates would commit themfelves upon very difadvantageous ground, ground which they can have no opportunity of examining, if they were to fuffer collateral confiderations to mix in their judgment on a cafe circumftanced as the prefent cafe is, It has been urged that in this inftance (at leaft as to the goods in the third policy) this was a commerce direct from this country, and that this treaty does not open a trade between Great Britain and the British territories in the Eaft Indies to the prejudice of the monopoly vefted in the East India Company. This objection is plaufible but not founded. The circumftance that this part of the cargo of the Argonaut was procured here, and the share which the Plaintiff Wilson had in procuring it, might have deferved confideration as evidence of a collufion by means of which Wilson was carrying on for himself an illicit trade to the Eaft Indies which might have fubjected this fhip and cargo, or this part of the cargo to feizure and confifcation. But this ufe has not been made of the facts found by the special verdict: and no other ufe, confiftent with our opinion of the legal effect of the treaty, could be made of them. For a citizen of the United States being allowed to trade to the British territories in India generally with an exception of a few articles only, as he may take in his cargo in the ports of his own country, so he may take it in in the ports of this country as well as any other; and he may employ an agent, and that agent may be a British subject. It is a lawful agency. It feems to me impoffible to maintain in argument that the fubject of a nation in amity who may trade to the British territories in India fhould be excluded from one market for his outward investment when all other markets are open to him, and when it is diftinctly admitted that the markets of all the world, including ours, circuitously must be open to him. There remains one other topic of which I am called upon to take fome notice. It is faid that Collett, who is folely interested in the two first of these policies, and has a joint intereft with Butler in the laft, being a natural born fubject of this country, 1799. MARRYAT บ. WILSON. 1799. MARRYAT V. WILSON. cannot shake off that character, and become an American so as to entitle himself to the protection of this treaty. He is a British fubject trading to the East Indies: his trade is therefore illicit : the voyages infured are illegal: and the policies are void. Or perhaps the objection ought to be put another way thus. The veffels in which only the trade can lawfully be carried on between the United States and the British territories in India according to the provifions of the Statute 37 Geo. 3. c.97. must be owned by fubjects of the United States, and whereof the mafter and threefourths of the mariners at leaft are fubjects of the United States : whereas this veffel the Argonaut was in part the property of a natural-born fubject of this country, and this part-owner was also the mafter; confequently fhe was not owned by a subject of the United States, nor navigated by a mafter a fubject of the United States, within the true intent and meaning of the navigation laws, and particularly the Statute 37 Geo. 3. The conclufion will be the fame. The voyages infured were therefore illegal and the policies void. This is the only point in the cafe which has appeared to me to have any difficulty in it. I muft confefs that when I found it ftated as a fact in this special verdict that Collett and Butler were natural-born fubjects of his Majefty, I felt myself embarraffed, and I could not readily difengage myself. And when I found that in the year 1797 there had been a reference (a) from the Privy Council c. 97. to (a) By 37 Geo. 3. c. 97. S.I. goods of the growth of America are allowed to be imported into Great Britain from the United States of America in Britif lips owned navigated and registered according to law, or American hips" whereof the matter and "three fourths of the mariners at least are "fubjects of the faid United States." On this a queftion arofe, whether one Smith who had become a citizen of the United States fince the declaration of independence, and came here as mafter of an American veffel, was within the meaning of the act. The cafe was fubmitted to the opinion of the King's Advocate and the Attorney and Solicitor General; which was as follows: To the Lords of His Majefty's Moft May it please your Lordships, Simen Cock, and papers accompanying the fame, to your Lordship's order annexed, and requiring us to confider thereof, and report, whether Alexander Smith therein named is to be confidered according to the true conftruction of His Majefty's order in council of the 31st May 1797, for regulating the trade between Great Britain and the territories belonging to the United States of America, as a subject of the United States of America, and whether he is entitled to be master of a fhip belonging to the faid United States trading to this country, and to confer on the faid fhip the benefit of the faid order in council: We have confidered the faid papers fo referred to us, and we are of opinion, that Alexander Smith, being a natural-born subject of His Majesty, and not having been admitted a citizen of the United States of America until the 6th of May 1796, cannot be confidered, with refpect to this country, as a fubject of the United States, fo as to entitle him to be master of a ship belonging to the to the then Advocate General, and the two law officers of the Crown, and that they had concurred in opinion that the mafter of an American veffel a fubject of the United States domiciled there, but in fact a natural-born fubject of Great Britain was not to be confidered as a fubject of the United States within the meaning of our navigation laws, founding themfelves upon an opinion of Lord Hardwicke when he was Attorney General, and that the Council had adopted and acted upon that opinion, I felt my difficulty increase upon me: for, though this was not a judicial decifion, (as in the argument at the bar of the Court of King's Bench it was fuppofed to be,) it was certainly of the highest authority next to a judicial decifion: it was a public act of the executive government, founded on the advice of eminent and learned men, whofe fituations called upon them to make themfelves well acquainted with our naviga 1799. MARRYAT ย. WILSON. United States trading to this country, and to confer on the said ship the benefit of the faid order in council. We apprehend that this point was fubmitted to the opinion of Sir Philip Yorke [1], in 1732, in the cafe of a Scotchman, who had been made a burgher of Stockholm, and was the matter of a Swedib ship navigated with Swedish mariners; and that he thought this would not entitle the Scotchman to be confidered as a Swede in Great Britain, his native country. All which we humbly fubmit to your Lordships' confideration. June 19, 1797. WILLIAM SCOTT, In confequence of the above opinion the following letter was written for the information of the Lords Commiflioners of the Treafury, and acted upon by them: Sir, Council-Office, Whitehall, The Lords of His Majesty's most honourable Privy Council having had under confideration a report of His Majelly's Advocate, Attorney and Solicitor General, on the petition of Jobn Montgomery, and a reprefentation of Simon Cock his agent, and papers accompanying the fame, requefting the entry at the port of Liverpool of the American hip America, Alexander Smith maßler, from New York; notwithftanding it has been objected to, on the grounds of the master of the faid ship not [1] Vide Reeve's Law of Shipping, 252. poffeffing all the qualifications of an Ame- W. FAWKENER. tion 1799. MARRYAT V. WILSON. tion laws, and must have made them very familiar with all the queftions which had arifen upon thofe laws: and it was therefore entitled to very great refpect from me. It may be observed, that this order might have been followed by a judicial decifion. It purports to recommend, that under the actual circumftances the veifel fhould be admitted to an entry though the was not navigated according to law. Notwithstanding the order and the entry in confequence of it, the veffel might have been feifed and profecuted in the Exchequer, and fo the question might have been brought to a judicial decifion. It was done in the cafe of Scott qui tam v. Schwartz, Com. 677. cited in the argument. By the way I do not understand upon what ground the cafe of Butler was dif tinguished from Collett's cafe, unless Butler has been exprefsly difcharged from his allegiance by act of parliament, in confequence of our acknowledgment of the independence of the United States. They were both natural-born fubjects, they were both adopted fubjects of the United States, and it is to be faid of both Nemo patriam in quâ natus eft exuere,nec legeantiæ debitum ejurare poffit. It was obferved by Lord Hale, that a natural-born fubject of this country may by foreign naturalization entangle himself in difficulties and a conflict of duties. So may the naturalized or denizen fubject of the King of Great Britain. Yet it is clear, that we and all the civilized nations and ftates of Europe do adopt (each according to their own laws) the natural-born fubjects of other countries. So, as I take it, Vattel (a) puts it in the paffages referred to. Our laws give certain privileges and withhold certain privileges from our adopted fubjects, and we may naturally conclude, that there may be fome qualification of the privilege in the laws of other countries. But our refident denizens are entitled, as I take it, to all forts of commercial privileges which our natural-born fubjects can claim. We fhould confider them as English in the language of the Navigation Act. The United States do undoubtedly confider their adopted fubjects as fubjects of the United States within their laws. And I take it that we fhould confider their adopted fubjects, if they happen not to be natural-born fubjects of the King of Great Britain, as subjects of the United States within our navigation laws. To this propofition I take the cafe of Scott v. Schwartz to be in point, if it wanted an authority. The cafe now begins to work itself clear. It comes to this quef. tion: What difference does the circumftance of the adopted fub(a) Lib. 1. c.19. S. 212. et seq. jec ject of the United States being a natural-born fubject of the King of Great Britain make? Is there any general principle in the law of nations (out of which this adoption of fubjects feems to have grown) that in the parent ftate the adopted fubject is incapable of enjoying the privileges which have been conceded by the parent ftate to the other fubjects of that ftate which has adopted him? I know of no fuch difabling principle. Let us then come to our own municipal law. Lord Hale fays foreign naturalization may involve the natural-born fubject in a conflict of duties. This is eloquence but not precifion. What are the duties of which there may be a conflict? Our laws pronounce, that if there fhould be war between his parent ftate and the ftate which has adopted him, he muft not arm himself against the parent ftate. Perhaps they go further and fay, that if he is here he may be prevented from returning to his domicile in the ftate which has adopted him: that if he is there, he must on receiving the King's commands under his privy feal return hither on pain of incurring a contempt and penalties confequent upon it. Whether the proclamation (a) which has been introduced into this caufe will have the fame effect as a privy feal ferved upon the party, is a queftion not neceffary to be here difcuffed. It cannot have a greater effect, nor an effect of a different nature, and may therefore be laid out of the cafe. Our municipal laws may attach upon him in fome other cafes, but I conclude in no inftance which by analogy can govern the prefent cafe, because I have heard of no fuch argument from analogy. Upon what authority then is it faid, that a natural-born fubject of the King of Great Britain fhall not trade to the Eaft Indies, though he is an adopted fubject of another country whofe fubjects in general are allowed to trade to the Eaft Indies? Shall it be enough to fay the reft of the King's fubjects are not allowed to trade to the Eaft Indies, and therefore you being the King's fubject fhall not? He will anfwer, I have a privilege which the reft of the King's fubjects have not. I am the King's fubject, but I am also the subject of the United States, and Great Britain has granted to the fubjects of the United States that they may trade. He may add, I violated no law of my parent state, in procuring myself to be received a fubject of the United States. She encourages the practice, for the herself adopts the subjects of other ftates. Why then are the fruits of my adoption to be withheld from me? If it be faid to him, you a British fubject ought not to trade to the lofs and injury of the East India Company (a) 8 Term Rep. 34. who |