CASES REPORTED IN THIS VOLUME,

AND SINCE HEARD ON APPEAL.

(Before the Lords Commissioners of Appeal in Prize Causes.)

But expenses of claimant of ship pronounced to be a charge on the cargo.

REPORTS OF CASES

DETERMINED IN THE

HIGH COURT OF ADMIRALTY.

MANILLA, Barret.

April 1, 1808.

Ports and places of St. Domingo not in possession of the French, excepted out of the genera 1 character of the island as an enemy's colony since the orders in council recognized them as open to British trade.1

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, contendedThat the question had already been disposed of by the decision of the Court of Appeals,2 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.

[See The Immanuel, 2 C. Rob. 186; The Happy Couple, 1 Stewart, R. 65; The Santa Anna, Edw. 180.]

2 Lords, 17th March, 1808.

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 character of the colony, as it had been so declared by his Majesty's government. But there are orders in council which have issued subsequently to the capture of those vessels, permitting British subjects to trade to those ports of St. Domingo which are not in the possession 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 character 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 independent 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 expressed 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.