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fide importation of a cargo from the enemy's colony to the United States as its real destination, or only with intent to pass it through our neutral ports, and make a continuous voyage to the enemy mother-country. In a case, decided in the year 1805, lord Stowell (then sir William Scott) has the following remarks upon these continuous voyages, and the intentions of the parties:
“It is certainly true, that a continuous voyage from the colony of the enemy to the mother country, or to any other ports but those of the country to which the vessel belongs, will subject the cargo to confiscation; and the only point which the court has to decide is, whether the voyage in question is to be considered as a continued voyage or not. It is a question, in its nature subject to very considerable difficulties. . . . . . . As the Essex (Orne), however, [tried in August, 1803], happened to be the leading case on this subject, it may not be improper, that I should state what I conceive to be the substance of it. It was the case of an American vessel which had gone from America to Lisbon, where finding the market bad, she went on to Barcelona, and there took on board a cargo of Spanish produce for the Havannah, under the direction of the agent in Europe, ‘that she should go to the Havannah, first touching at Salem in America, where the owner (William Orne) resided, who adopted the plan and sent the vessel on.' ... ‘It appeared clearly to the court, that it was the intention, originating in the mind of an authorized agent, acting under full powers, that the vessel should go to the Havannah, and that this purpose was adopted by the owner; that it was in reality a continued voyage from Spain to the Havannah; that, as to the intention, all doubt was done away by the adoption on the part of the owner, who had the vessel in his own port, and was fully implicated in the engagement of sending her on, according to the projected voyage. This was the fundamental case—a case of a trade from the mother country to the colony, with full knowledge of the circumstances, and a distinct adoption of the purpose on the part of the owner.””
* See 5 Robins. Adm. Rep. 365, &c.
Now, if the rule of 1756 could ever be justly applied, this was as clear a case under it as could happen. But, when this decision was first made known in the United States, and very imperfectly understood, from its being unaccompanied with the facts and circumstances, which appeared on the trial, it was received by the public as a flagrant violation of neutral rights, and caused a strong sensation in the mercantile community.
The new requisitions, made from time to time, as to the proofs of the really neutral character of this branch of our commerce, caused new vexations that drew forth loud complaints; yet, annoying as they were, we can hardly, at this day, suppose that the practical operation of them, in their full extent, was contemplated at the time when they were imposed upon us. Belligerent nations, we know, are apt in the heat of warfare, to carry out their acknowledged rights to the full extent, and to assert claims which cannot be sustained. But, of the decisions of lord Stowell, in the English high court of admiralty, as a body of legal adjudications on questions of great magnitude—some of which, from their very nature, will long remain unsettled—the author of the present digest, after a careful examination, does not hesitate to speak in the following strong terms:
“There is lingering in this country, even among intelligent persons, a feeling of prejudice against the English court of admiralty, which has its origin in the supposed injustice done in that court to the neutral commerce of the United States, during the period anterior to the last war with Great Britain; and I suspect this feeling may sometimes have deterred American students from a due appreciation, perhaps from an examination, of the prize judgments of lord Stowell, in which are to be found the most elaborate discussions and applications of public law, clothed in a style of surpassing grace and finish, to which the annals of jurisprudence furnish no comparison. I confess that I can discover no serious foundation for such a prejudice. Doubtless the British
government of that period dealt with the commerce of the United States, as they did with that of some other neutral nations, oppressively and injuriously, but I find no manifest violations of international rights, no inconsistent departures from the known principles of public law, in the decisions of lord Stowell. I have studied the judgments of that learned person with care; and the sagacity, the firmness and honesty, with which he applied the rules of law, and reached the substantial justice of the cause before him, are to me not less obvious and attractive, than the classical spirit and thorough cultivation of his mind. Occasionally, it is true, when encountering the devious policy of France, his scorn of the theories and novelties of French politics is discoverable in the satire, which he sometimes interwove with the course of his argument. It is easy also to conjecture, that privately he regarded Napoleon with a real British hatred. But he rarely forgot, and indeed frequently reminded those before him, that he was sitting in a court of the law of nations, though under the immediate authority of Great Britain. He administered the law of prize, not as it may be administered—the law of mere force and conquest—but as a great system of international jurisprudence, resting for its foundations on the sense and convention of mankind. No national, or other prejudice, should deter the student of general law from an acquaintance with his judgments. Masterly and beautiful discussions, they form a unique and enduring result of judicial labors, the value of which is not limited to their immediate availability in the practical wants of a lawyer's chambers, but which, whether in peace or in war, will always be resorted to for instruction in public law, as long as the nations, judging and recording in the English tongue, shall maintain any supremacy in the maritime relations of the globe.” Preface, pp. ix, x.
To this eulogy, we believe, we may add, that in the administration of public law in the courts of the United States, by our accomplished jurist, Mr. justice Story, no single name is of so commanding authority as that of lord Stowell; and, certainly, no one in the United States has had so frequent occasion to examine and review the opinions of lord Stowell, as that distinguished judge." But we must return to the work before us. And one remark, which we must not omit, is this; that although the cases arising out of the rights of war—like that which we have been considering—are in many respects the most important and interesting, yet the civil part of the digest, as it may be called in contradistinction to the rest, is of the greatest utility to the profession at the present period of peace. The author has here also bestowed much labor and attention on the arrangement of the materials, and his statements of the points decided; and the value of the work to practisers is proved by the fact, that before the sheets of the first edition were hardly dry from the press, a second was called for. We may add, that we believe they will find in it all that they could desire in a work of this kind. The volume closes with the charge of sir Leoline Jenkins on admiralty criminal jurisdiction; and we hope the publication of the present work will draw the attention of our lawyers, generally, to the subject of the administration of justice by the admirable system of proceedings in the courts of admiralty— a system, which justly deserves the encomiums bestowed upon it in Mr. Curtis's preface: “The admiralty should be otherwise known, than as a court of curious learning, where controversies are determined upon principles and under forms, which, to the popular feeling, are unusual, abstruse or difficult of apprehension. Its process and forms are indeed in many respects different from those of the common law, the administration of which is most generally familiar to the people of the United States. But one of its main and most characteristic features is, that it is, to the extent of its jurisdiction, a court of equity. It entertains pleas of part performance, and decrees an
* Of the whole number of volumes of Circuit Court Reports of the United States, included in the digest, nine (or about one half) are occupied with the decisions of Mr. justice Story.
instrument to be good in part and bad in part, as the fact and equity of the case may be. It annuls positive contracts improvidently entered into by its ‘ward,” the seaman, and is not restrained from his protection by the binding sanctity of a seal. It rejects altogether in its pleadings the technical niceties of the common law, and requires only that the substantial merits should be set forth, in forms that are peculiar, indeed, but wholly liberal and unembarrassing. In the construction of contracts, it seeks to combine the intention of the parties and actual justice, in the result of their controversies. This feature of the jurisdiction may well commend it to public favor; and held as it is under the constitution of the United States, it is of little moment, at the present day, whether it sprang from the stock of the royal prerogative, as a flower of the crown, while trial by jury, inestimable right as it may be, with all the rigors and technicalities of the common law, has descended to us from the commons of England. The institution, like every other with which the people of the United States have to do, is to be judged of far less by its origin, than by the practical uses to which they have applied it, under their own great and unencroaching constitution.” Preface, pp. v., vi.
ART. IX.-ON THE WALIDITY OF AN INSURANCE IN CONTRAVENTION OF THE LAWS OF A FOREIGN COUNTRY.
[Translated from an article by Dr. Lewis Duncker, university-syndic at Marburg, published in the Archiv fur die Civilistische Praxis, vol. xxi.]
THERE is no doubt, that an insurance which refers to an undertaking, forbidden by the laws of the country of the contracting parties, is invalid;' and, whether it is the law of the place, where the contract is entered into, or where it is to be performed, is immaterial; since the character of subject is not lost by a temporary residence in a foreign country.
* L. 5, C. de legib. (1, 14); Benecke's System of Assurance and Bottomry (in German), Part i. p. 26.