« 이전계속 »
ourselves. We are to conftrue this treaty as we would construe any other instrument public or private. We are to collect from the nature of the subject, from the words and from the context, the true intént 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 those ftates would commit themselves upon very disadvantageous ground, ground which they can have no opportunity of examining, if they were to suffer collateral considerations to mix in their judgment on a case circumstanced as the present case is, It has been urged that in this instance (at least as to the goods in the third policy) this was a commerce direct from this country, and that this treaty does not open a trade between Great Britain and the British territories in the East Indies to the prejudice of the monopoly vested in the East India Company. This objection is plausible but not founded. The circumstance that this part of the cargo of the Argonaut was procured here, and the share which the Plaintiff Wilson had in procuring it, might have deferved confideration as evidence of a collusion by means of which Wilson was carrying on for himself an illicit trade to the East Indies which might have subjected this ship and cargo, or this part of the cargo to seizure and confifcation. But this use has not been made of the facts found by the special verdict: and no other use, 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 seems to me impossible to maintain in argument that the subject of a nation in amity who may trade to the British territories in India should be excluded from one market for his outward investment when all other markets are open to him, and when it is distinctly admitted that the markets of all the world, including ours, circuitously must be
open to him.
There remains one other topic of which I am called upon to take fome notice. It is said that Collett, who is solely interested in the two first of these policies, and has a joint interest with Butler in the laft, being a natural born subject of this country, FF 4
cannot shake off that character, and become an American fo as. to entitle himself to the protection of this treaty. He is a British subject trading to the East Indies : his trade is therefore illicit: the voyages insured are illegal: and the policies are void. Or perhaps the objection ought to be put another way thus. The vessels in which only the trade can lawfully becarried on between the United States and the British territories in India according to the provisions of the Statute 37 Geo. 3. C.97. must be owned by subjects of the United States, and whereof the master and threefourths of the mariners at least are subjects of the United States : whereas this vessel the Argonaut was in part the property of a natural-born subject of this country, and this part-owner was also the master; confequently she was not owned by a subject of the United States, nor navigated by a master a subject of the United States, within the true intent and meaning of the navigation laws, and particularly the Statute 37 Geo. 3. c.97. The conclusion will be the same. The voyages insured were therefore illegal and the policies void. This is the only point in the case which has appeared to me to have any difficulty in it. I must confess that when I found it ftated as a fact in this special verdict that Collett and Butler were natural-born subjects of his Majesty, I felt myself embarrassed, and I could not readily disengage myself
. And when I found that in “theyear 1797 there had been a reference(a)from the Privy Council
*(a) By 37 Geo. 3. c.97. f.I. goods of Simon Cock, and papers accompanying the the growth of America are allowed to be fame, to your Lordship's order annexed, and imported into Great B itain from the United requiring us to consider thereof, and report, States of America in Britifo nips owned whether Alexander Smith therein named is navigated and registered according to law, to be considered according to the true conor American ihips" whereof the matter and struction of His Majesty's order in council u thiee fourths of the mariners at least are of ihe 31st May 1797, for regulating the « subjects of the said United States." On trade between Great Britain and the terthis a question ar fe, whether one Smith ritories belonging to the United Stetes of who had become a citizen of the United America, as a subject of the United States States since the declaration of indipendence, of America, and whethier he is entitled and came here as master of an American to he matter of a fhip belonging to the veffel, was within the meaning of the act. said United Slates trading to this country, The case was submitted to the opinion of and to confer on the said ship the benefit the King's Advocate and the Attorney and of the said order in council: We have Solicitor General; which was as follows: considered the said papers fo referred to
us, and we are of opinion, that Alexander To the Lords of His Majesty's Moft Smitb, being a natural-born subject of His Honourable Privy Council.
Majesty, and not having been admitted a
citizen of the United States of America May it please your Lordships, until the nth of May 1796, cannot be conIn obedience to your Lordships' order of fidered, with respect to this country, as a the 16th inftant, referring to us the petition subject of the United States, so as to entitle of Jobn Montgomery, the representation of him to be master of a thip 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 master of an American vefsel a subject of the United States domiciled there, but in fact a natural-born subject of Great Britain was not to be considered as a subject of the United States within the meaning of our navigation laws, founding themselves upon an opinion of Lord Hardwicke when he was Attorney General, and that the Council had adopted and acted upon that opinion, I felt my difficulty increase upon me: for, though this was not a judicial decision, (as in the argument at the bar of the Court of King's Bench it was supposed to be,) it was certainly of the highest authority next to a judicial decision : it was a public act of the executive government, founded on the advice of eminent and learned men, whose fituations called upon them to make themselves well acquainted with our naviga
United States trading to this country, and posseffing all the qualifications of an Ame. to confer on the said ship the benefit of the rican fubject; I am commanded by their said order in council. We apprehend that Lordships to transmit a copy of the said this point was submitted to the opinion of report to you for the information of the Sir Pbilip Porke (1), in 1732, in the case Lords Commissioners of His Majesty's of a Scotchman, who had been made a Treasury, and I am to signify that the burgher of Stockbilm, and was the mailer Lords of the Council agree in opinion with of a Swedise ship navigated with Swedish His Majelly's Advocate, Attorney and mariners; and that he thought this would Solicitor General, that a Britiso subject not entitle the Scotchman to be considered cannot so divest himself of the character of as a Swede in Great Britain, his native a British subject, by being naturalized or country
becoming a citizen of any foreign state, as All which we humbly submit to your to entitle him to be considered, in this Lordships' consideration.
country, as a subject of such foreign state,
William Scott, under the laws of navigation. And their
John Scott, Lordships are further of opinion, that for
the interest of this country to admit of such In consequence of the above opinion the a claim, yet, as this is the first case with following letter was written for the informa respect to the United States of America in tion of the Lords Commiflioners of the wbich a claim of this nature has been Treasury, and acted upon by them : brought forward, their Lordihips do not
think it would be proper to take advantage Council-Office, Whiteball, of the forfeiture of the said thip, &c. and
230 June 1797. are even of opinion, that under all the cir. The Lords of His Majesty's most ho
cumstances of the prefent case, the faid nourable Privy Council having had under
Thip America Mould, according to the reconfideration a report of His Majeliy's Ad.
quest of the memorialist, be permitted to vocate, Allorney and Solicitor General, enter the cargo at the port of Liverpool; on the petition of Jobn Montgomery, and
I am however directed by their Lordihips a repreientation of Simon Cock his agent,
to desire that a copy of the faid report may and papers accompanying the same, re- be trantmitted to the Commissioners of questing the entry at the port of Liverpool His Majesty's Customs, and that they may of the American Thip America, Alexander
be informed, that after fuch notice a like Smitb mafier, from New York; notivith. indulgence will not be granted, ftanding it has been objected to, on the
I am, 56. grounds of the master of the said ship not
Geo. Rose Esq.
W. FAWKENER.  Vide Reeve's Law of Shipping, 25 200
tion laws, and must have made them very familiar with all the questions which had arisen upon those laws: and it was therefore entitled to very great respect from me. It may be observed, that this order might have been followed by a judicial decision. It purports to recommend, that under the actual circumftances the vetiel should be admitted to an entry though she was not navigated according to law. Notwithstanding the order and the entry in consequence of it, the vessel might have been feised and prosecuted in the Exchequer, and so the question might have been brought to a judicial decision. It was done in the case of Scott qui tam v. Schwartz, Com. 677. cited in the argument. By the way I do not understand upon what ground the case of Butler was diftinguished from Collett's case, unless Butler has been expressly difcharged from hisallegiance by act of parliament, in confequence of our acknowledgment of the independence of the United States. They were both natural-born subjects, they were both adopted subjects of the United States, and it is to be said of both Nemo patriam in quâ natus est exuere, nec legeantiæ debitum ejurare posit. It was observed by Lord Hale, that a natural-born subject of this country may by foreign naturalization entangle himself in difficulties and a conflict of duties. So may the naturalized or denizen subject of the King of Great Britain. Yet it is clear, that we and all the civilized nations and states of Europe do adopt (each according to their own laws) the natural-born subjects of other countries. So, as I take it, Vattel (a) puts it in the passages referred to. Our laws give certain privileges and withhold certain privileges from our adopted subjects, and we may naturally conclude, that there may be some qualification of the privilege in the laws of other countries. But our resident de nizens are entitled, as I take it, to all sorts of commercial privileges which our natural-born subjects can claim. We should consider them as English in the language of the Navigation Aet. The United States do undoubtedly consider their adopted subjects as subjects of the United States within their laws. And I take it that we should consider their adopted subjects, if they happen not to be natural-born subjects of the King of Great Britain, as subjects of the United States within our navigation laws. To this proposition I take the case of Scott v. Schwartz to be in point, if it wanted an authority. The case now begins to work itself clear. It comes to this ques. tion: What difference does the circumstance of the adopted sub
(0) Lib. 1. 6.19.8. 212. et seq.
ject of the United States being a natural-born subject of the King of Great Britain make ? Is there any general principle in the law of nations (out of which this adoption of subjects feems to have grown) that in the parent state the adopted subject is incapable of enjoying the privileges which have been conceded by the parent state to the other subjects of that state which has adopted him ? I know of no such disabling principle. Let us then come to our own municipal law. Lord Hale says foreign naturalization may involve the natural-born subject in a conflict of duties. This is eloquence but not precision. What are the duties of which there may be a conflict ? Our laws pronounce, that if there should be war between his parent state and the state which has adopted him, he must not arm himself against the parent state. Perhaps they go further and say, 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 seal return hither on pain of incurring a contempt and penalties consequent upon it. Whether the proclamation (a) which has been introduced into this cause will have the fame effect as a privy seal served upon
party, is a question 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 case. Our muni. cipal laws may attach upon him in some other cafes, but I conclude in no instance which by analogy can govern the present cafe, because I have heard of no such argument from analogy. Upon what authority then is it said, that a natural-born subject of the King of Great Britain shall not trade to the East Indies, though he is an adopted subject of another country whose subjects in general are allowed to trade to the East Indies? Shall it be enough to say the rest of the King's subjects are not allowed to trade to the East Indies, and therefore you being the King's fubject shall not ? He will answer, I have a privilege which the rest of the King's subjects have not. I am the King's subject, but I am also the subject of the United States, and Great Britain has granted to the subjects 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 subject of the United States. She encourages the practice, for the herself adopts the fubjects of other states. Why then are the fruits of my adoption to be withheld from me? If it be said to him, you a British subject ought not to trade to the loss and injury of the East India Company (e) 8 Term Rep. 34.