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fourth article of the treaty as explicit, that "masts, planks, boards, and beams of any kind of wood, and all other materials requisite for building or repairing ships, shall be wholly reputed free goods, so that the same may be freely transported and carried by the subjects of the states, to places under the obedience of the enemies of his said Majesty, except only to places besieged, blocked up, or invested."

[* 190 ] *The Proctor and Advocate of the Admiralty moved, that the stores might be sold on a fair valuation to the commis sioners of the navy for his Majesty's use. The freight, the expenses of proceeding, and all other charges due to the Dutch claimant, to make a part of the price.

The judge, [SIR JAMES MARRIOT] gave his opinion nearly in the following terms: This question, of the highest national importance, turns, in my opinion, upon a great extent of comprehensive argu ment. To give the utmost force to the treaty of 1674, relied on by the claimants as the fort of their pretensions, the fourth article must be admitted to be in terms as stated. The first article stipulates, "Freedom to exercise all manner of traffic." Article 2d, "This freedom of commerce is not to be interrupted by reason of any war as to any kind of merchandise, but shall extend to all commodities which may be carried in time of peace; those only excepted which are described under the name of contraband." There follows the third

article, affirming what shall be contraband, specifically nam[191] ing the sorts of arms and ordnance, and lastly, in general words, "All other instruments of war."

The fourth article is negative of contraband; and masts, &c., are excepted from being contraband.

By the general law and usage of nations (treaties and extraordinary stipulations out of the question) there are two sorts of things confiscable, first, all those, generally, which belong to an enemy, found on board the ships of a friend: secondly, those which belong to a friend, but which will aid the enemy to maintain war. These latter are contraband; so that one of the ideas inseparably annexed to contraband, and to the exception of contraband, is, that the goods excepted or not excepted belong to a friend; from which it is clear that the goods of the Dutch subject, specially or generally enumerated in article third, are contraband; and that masts, &c., &c., and all other materials requisite for building and repairing ships, excepted in article fourth, do mean such masts, &c., which do also belong to the friend, and are going in the ordinary course of trade as ordinary merchandise and for mercantile purposes. This must be the

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natural sense of the stipulation. For to admit a right of [* 192] being the privileged carriers of the enemy to the royal docks, would work such an adoption of a hostile character, would defeat every idea of alliance and confederacy of the contracting parties, and transfer the federal union over to the other belligerent.

The great argument is, that all subsisting treaties of commerce and alliance offensive and defensive, are to be taken as one contract, uno contextu, and the spirit of the federal union is to interpret the letter so that no one treaty, or article of the treaty, is to be taken substantive, or standing alone and single from the rest.

The secret article of Westminster, 1673-4, is as strong as possible. The words are, "Neither of the said parties shall give nor consent that any of their subjects or inhabitants shall give any aid, favor, or counsel, directly or indirectly, by land or by sea, or on the fresh waters, nor shall furnish nor consent that the subjects and inhabitants of their dominions and countries shall furnish any ships, soldiers, mariners, provisions, money, instruments of war, gunpowder, or any other things necessary for making war, to the [193] enemies of the other party, of any rank or condition whatsoever." It is very clear that ships may be furnished by piecemeal as completely as if they sailed out of the Texel with all their furniture.

If one Dutch ship carries masts, another anchors, another cordage, y another sails, another a ship's frame (and such there is now taken, of size for a seventy gun ship) a whole fleet may go by detail from Holland for the King of France's service.

It could never be the intention of the contracting parties, that Dutch ships, or English, vice versa, should become the transports of an enemy's government, for carrying free its stores of war either for sea or land.

Besides all this, the usage of nations is the best interpreter of all contracts; and it always has been the usage to pay the Dutch carrier for the enemy's stores, and for his freight; and the precedents of the usage universally acquiesced in during the last wars are worth all the reasonings of Grotius and Pufendorf.

* By decreeing naval stores to be sold to the public, and [* 194 ] the freight and all incidental charges, as between merchant and merchant, made a part of the price, the carrier has the benefit of the treaty; the great object is his cabotage or carrying trade; given him that, the spirit of the treaty is fulfilled. As to necessity, by the twenty-fourth article of the treaty of Bredah, "the persons of merchants, masters, and mariners of either party, their ships, goods, wares, and merchandises may be arrested or detained in the port of the

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other, to serve in war, or for any other service upon an extraordinary necessity, and then just satisfaction shall be made."

[* 195 ]

Holland, in case of such necessity, may press English ships and seamen; and England may do the same vice versa. The casus fœderis exists; the dominions of Great Britain in America and her commerce on the ocean are invaded by France. The necessity is and can only be judged of by the party who claims the assistance; because if it rested with the other confederate to judge of the necessity, he would judge in his own cause, and elude the contract. *Whenever it comes to that, it may be urged with equal reason and plain sense: "I say I am in necessity, and want your assistance." You say, "I am not in necessity, and you will not give the assistance." The reply is obvious:- "I know best my own wants and necessities, which I feel, and not you. If, therefore, you will not allow my demand, I will not allow yours. All is reciprocal. As you do not admit my necessity, I am under a necessity to refuse your privilege."

As to England having enjoyed the privilege of the treaty, it was but once (above a century ago.) But Holland, on the contrary, has used it so often as almost to wear it out.

In the present state of things, England, in a most extraordinary position, never possible in contemplation in the utmost range of the imagination of the contracting parties, engaged in a civil war with her own subjects of the whole continent of British America, and assailed, first privately, and then publicly, by France, cannot admit of the privilege of carrying the naval stores of the enemy, in [*196] the extent claimed by the States, without opening her breast to all her enemies, without defence.

She is obliged, by every principle of self-preservation, to snatch the sword from the hand of her assailants, let who will interfere and afford arms to that restless and malignant nation, who, in the weakness or destruction of Great Britain, will most assuredly involve the fate of Holland.

The JUDGE decreed the ship to be restored to the Dutch claimants, together with the value of the cargo; the naval stores to be sold, according to former precedents, for the use of his Majesty; all freight, expenses, and charges, both of the captor and claimant, to be paid by his Majesty. From this sentence, the proctor of the captor appealed, but the court ordered the execution of the sentence not to be suspended, and the captor to give adequate security to answer the appeal.

AN American ship, taken the 23d of August, 1778, by The Duchess of Kingston and Triumph, privateers, bound from Charleston, in South Carolina, to Bordeaux. A claim was given for the ship, as a recapture, on the part of Mr. John Strettel, who, in the affidavit annexed to his claim, swore that he bought her on the 8th of October, 1776, of George Catton, the then master, and of Benjamin and Calverly Bewick, Esquires, merchants of London, for 500l., described to be of 180 tons burden, and then lying in the River Thames, with the ordinary clause of warranty, that they had good right, full power and authority to sell; that he sent her afterwards, under Catton's command, to St. Kitt's, about June, 1777; that in the very voyage she was taken by an American rebel privateer, and carried into Bedford, in New England.

Claims were given in by the following persons for the several parcels of the cargo:

Mr. William Creighton, for forty-three casks of indigo, [* 198] W. C.; Mr. Robert Ray, for twenty-six casks of indigo, two hogsheads of tobacco, R.; Mr. John Moncrief, for three hogsheads of tobacco, J. M.

The ground of their claim was that they were all compelled to leave Carolina in consequence of an act of state, (as it is called,) passed on the 28th of March, 1778, by the rebel government, obliging all persons to abjure his Majesty, King George III., to take an oath. of allegiance to the pretended States, otherwise to depart the colony in sixty days; to sell all their estates, on pain of being apprehended, and committed to prison on refusal, upon tender of the oath. Under the further penalty, upon neglect or refusal, to be made incapable of exercising any profession, trade, art, or mystery; buying, selling, acquiring, or conveying any property, such property to be forfeited, one half to the informer, the other half to the state; obliging them to sell their estates, and their attorneys to remit the amount within twelve months; and on failure in point of time, to pay the same into the treasury of the state; persons so withdraw- [199] ing, and returning, to be adjudged guilty of treason against the state, and, on conviction, to suffer death as traitors.

These claims were opposed by the captors on the ground of the danger of admitting collusive claims to avoid the prohibitory act of parliament, under pretence of being exiled loyal Americans, with

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respect to the cargo; and in regard to the ship it was objected that its identity was not proved by any affidavit (as is usual in the like cases) of any person having inspected the ship, and that the tonnage differed, this ship being deposed to be of 300 tons, and Strettel's affidavit and bill of sale, annexed to his claim, setting forth that the ship claimed was only of 180 tons burden.

The counsel for Strettel urged that he ought to be allowed farther time to prove his property, and that variations of tonnage in passports and depositions were frequent in almost every contested cause, particularly the Dutch.

It was argued, in favor of the claimants of the cargo, that in several decisions by the late judge in the cases of Governor [* 200 ] * Bull, Mr. Angus Macauley, Mr. Telfair, and others, Americans, coming over with their property for their support, and not for the purposes of trade, their properties had been restored, notwithstanding the prohibitory act.

The court decreed that Strettel should prove the property and identity of the ship; was of opinion that an affidavit of inspection is always necessary; that the difference of the tonnage, between 180 tons in the bill of sale and 300 tons in the depositions, was too great not to make the identity very suspicious; that the warranty in the bill was not sufficient evidence of the property; for persons may have (as it is there said) good right, full power, and authority to sell, and yet they may be only the attorneys of the seller. Everybody knows that almost all trade is now, and has been for many years, carried on in this kingdom, and, indeed, in almost all Europe and the colonies, by commission. There should be some proof of the ship's register, and evidence that the sellers did not act by letter of attorney.

Collusion is very obvious in the transferring of property of [*201] *ships; and though this idea was often urged in several

causes determined at the beginning of the rebellion, and soon after the prohibitory act, as a reason to show the necessity of merchants, purchasers of American ships, strictly proving that they were bona fide transferred, yet the argument was pressed in vain; and it was said, "We do not sit here to determine upon title deeds;" however, it is now high time to require strict proof of the titles of ships claimed as British property.

An attempt was made by the counsel for the captors to read an affidavit made by Chase, the master of The Rebecca, to show that the ship belonged to Quakers at Philadelphia; that Catton, being an eighth part-owner of the ship, and the remainder being the property of the Quakers, on the first news of the prohibitory act, the ship being then at Falmouth, set off for London, and there made a false