happen to be cast away, though there be private instructions for her port, yet the insured must sit down with his loss, by reason of the uncertainty. "Such also, says Parke, is now the law and usage of merchants."

These opinions and principles are supported by the determination in Lavabre v. Walter, Douglas 271., in which the voyage insured was described in these words, "at and from port l'Orient to Pondicherry, Madras and China, and at and from thence back to the ship's port or ports of discharge in France, with liberty to touch, in the outward and homeward bound voyage, at the isles of France and Bourbon, and at all or any other ports or places whatsoever; and it shall be lawful for the said ship in this voyage to proceed and sail to, and touch and stay at any ports or places whatsoever, as well on this side as on the other side the Cape of Good Hope, without being deemed a deviation." The ship went to Pondicherry, whence she went to Bengal, back to Pondicherry and sailed thence for, and was captured on her return to l'Orient. Both going and returning she either touched at, or lay off Madras Masulipatam, Visigapatam and Yanon, and took in goods at all those places. This was held to be a deviation. This case is also very accurately reported in Emerigon, who remarks on the policy," that however general the words of the policy were, they could not be construed more largely than the specified voyage, which was for Pondicherry, Madras and China."

These cases apply to the construction of the loose and indeterminate clauses of maritime contracts; and when fairly investigated will be found no more than a correct application of old and well established rules drawn from Roccus, Stympanus and Le Guidon le Mer to modern cases.

But the case of Wooldridge v. Boydell, Doug. 16. more immediately resembles the case now before the Court in its facts and circumstances than any I have referred to. See Park 260. S. C. *

[*The above decision is faithfully copied from a MS. in the writing of its highly distinguished author. As it was not prepared by him for the press, this explanation is due to his memory, on the part of the Editor.]

Vice-Admiralty Decision

OF

SIR JAMES MACKINTOSH.

WHERE the British orders in council operate as a relaxation of the law of nations in favour of neutrals, the Vice-Admiralty Courts are bound by them, secus if they extend the law of nations to the prejudice of neutrals.

Minerva, Frederick Hussey, Master.

N Friday the 11th instant Sir James Mackintosh gave judgment in this cause.

This was a case of an American ship taken on the 3d of December, 1806, going from Manilla to Batavia.

The ship had left Providence in August, 1805, and touched at the Isle of France, from which place she sailed to Batavia, thence she went to Tegall and Manilla; and on her voyage from this last place back again to Batavia she was detained. Her cargo chiefly consisted of indigo and dollars.

It appeared that she was under the direction of a supercargo on board, as to her employment in trade both in respect of the cargoes and the intermediate ports to which she was to trade, previously to her return to Providence or some other port in America, where her voyage was to end.

For the captors, it was contended that she was trading between enemies' colonies, and therefore acting in direct violation of the letter and spirit of his majesty's instructions of June, 1803, which instruct the commanders of ships of war and privateers not to seize any neutral vessel which should be carrying on trade directly between the colonies of the enemy and the neutral country to which the vessel belonged.

For the claimants it was insisted that neither Manilla nor Batavia nor the Isle of France was an enemy's colony of such a nature as to render the trading thereto by a neutral in time of war illegal; inasmuch as the trade to those places was open to foreigners in time of peace.

The Court on a former day had directed commissions to be sent to Bengal and Madras to ascertain whether the ports of Batavia and Manilla were during the last peace open to any foreigners from the ports of India, Europe or America? and if open, whether under any, and what restrictions? and also to inquire into the state of those ports, in these respects, before the war which broke out between Great Britain and Spain in the year 1796.

These commissions being in part returned, and it appearing that the ports were open to all foreigners during the last peace, without any restrictions except as to opium and specie at the port of Batavia, Sir James Mackintosh pronounced judgment of restitution.

The captors, he said, were fully justified in detaining this vessel, because in so doing they were acting in obedience to the letter of the instructions of June, 1803. Batavia and Manilla were certainly colonies of the enemy, and this vessel was certainly not trading directly between America and such colonies. But though the officers in his majesty's service were bound to obey these instructions, he did not conceive himself, sitting as a judge of prize, in a court whose decisions were to be regulated by the law of nations, as bound and concluded by them. He believed indeed that he was the first and only judge who had ventured to pronounce such a doctrine. In every prize court, in every country, by all writers on the subject, and all administrators of the law, the instructions of the sovereign were regarded as a law to the judge. But he considered the law of nations as paramount to such instructions; and the king as having indeed a right to dispense with such law, but not a right to extend it. As far, therefore, as any of his majesty's instructions were a relaxation of the law of nations in favour of neutrals, he should consider himself bound by them; but if he saw in such instructions any attempt to extend the law to the prejudice of neutrals, he should not obey them, but regulate his decision according to the known and recognized law of nations.

In the present case, after great deliberation and minute in

quiry, he felt himself bound to say, that neither Batavia nor Manilla was such a colony as to render any trading by neutral nations in time of war illegal.

It is not their being called colonies, that will render such a trading unlawful; notwithstanding the letter of the instructions of 1803, something farther is necessary, and that is, that the trade to and with these colonies was prohibited to such neutrals in time of peace.

October 24. Some misapprehensions having arisen of the grounds upon which we stated, that the judgment of the Court of Admiralty proceeded in the case of the Minerva, Captain Hussey, mentioned in the Courier of the 19th September, 1807, we take the liberty of stating somewhat more explicitly what we conceived to have fallen from the bench, and to have been the foundation of the judgment in that case.

The chief point in dispute, which was investigated by means of commissions to Calcutta and Madras, was, whether Manilla and Batavia were colonies of the enemy, in the sense meant in his majesty's instructions of 1803; or whether they enjoyed such a freedom of trade with other countries, in time of peace, as took them out of the situation of settlements governed on exclusive colonial principles. The result of the inquiry was, that it appeared, that Manilla and Batavia were not colonies in the sense of his majesty's instructions, as it was found that they were not shut against foreigners in time of peace; and in consequence the ship was ordered to be restored to the claimants.

It is to be observed, however, that the learned Judge, though he ordered restitution to be made, refused the claim of the neutral for costs and damages, as the captor seemed to be fully justified in this case by the letter of his majesty's instructions, and from the prevailing uncertainty, whether or not Manilla and Batavia were to be considered as colonies.

The case of the Minerva is one that cannot again speedily occur. The recent instructions of 1807, inserted in the Courier of July 4th, 1807, and which direct all ships to be detained that are found trading between any two ports of the enemy, whether colonies or not, put an end to any doubts or dispute

that might have arisen on the question. Every ship found in such a situation must be brought in as a prize; and Manilla or Batavia is now entitled to no more privilege than any other ports of the enemy.

It ought also to have been remarked, that when sir James Mackintosh, in observing on some reasonings that were held in the pleadings, stated a doubt, whether a judge, acting under the law of nations, would be bound to decide according to instructions, issued by any prince contrary to the law of nations, he expressly stated the instructions of 1803, to be of a very different description, and as such, the ground of his judgment in the case.