of British Com merce by Treaties. British East Indies and Encouragements countries shall remain in complete possession of its rights, unaffected by the late convention (1). Great Britain has agreed that the vessels of the United States of America shall be admitted and hospitably received at the principal settlements of the British dominions in the East Indies, viz. Calcutta, Madras, Bombay, and the Prince of Wales's Island, and that the citizens of the United States may freely carry on trade between (2) those settlements and the United States in all articles, the importation and exportation of which is not entirely prohibited (2); provided that it shall not be lawful for them, at a time when the British government is at war, to export military stores, naval stores, or rice, without the special permission of the British government. The citizens of the United States are to pay for their vessels when admitted, the same duties and charges as are payable on the vessels of the most favoured European nations, and they are to pay the same duties or charges on the importation or exportation of the cargoes of those vessels as are payable on the same articles when imported or exported in the vessels of the most favoured European nations. But it is expressly agreed that the vessels of the United States shall not carry any articles from the principal settlements in the East Indies to any place except to the United States, where they are to be unladen (3). It is also understood that this permission is not to extend to allow the vessels of the United States to carry on any part of the coasting trade of the said British territories; but the vessels of the United States that have in the first instance proceeded to one of the said principal settlements of the British dominions in the East Indies, and are then going with their original cargoes, or some part thereof, from one of the principal settlements to another, are not to be deemed coasting vessels (4). (1) Art. 2. See some observations on the old treaty, with regard to these isles. 1 Bos. & Pul. 437, &c. (2) Wilson v. Marryatt, 8 T. R. 31. 37, &c. 1 Bos. & Pul. 430. 37 G. 3. c. 97. See infra as to the construction of this article. (3) Bird v. Appleton, 8 T. R. 562. and infra. (4) The same clause occurred in the old American treaty, 8T. R. 36. notes. The words original cargo were said to furnish an inference that the trade from the United States to the British Settlements in the East Indies, must be direct and not circuitous. But the term original cargo is plainly used in opposition to the cargo taken in India. The provision respecting it is, that though the coasting trade is not permitted to the citizens of the United States, they may carry the cargo which they originally brought with them into the ports of the British territories from one port of delivery to another for the purpose of a market. The word "original" The vessels of the United States may also touch for refreshment, Encouragements of British Combut not for commerce, in the course of their voyage to or from merce by the British territories in India, or to or from the dominions of Treaties. the Emperor of China, at the Cape of Good Hope, the island of St. Helena (1), or such other places as may be in the possession of Great Britain in the African or West Indian Seas; it being understood that the citizens of the United States shall be subject in all respects to the laws and regulations of the British government from time to time established (2). It is also stipulated that it shall be free for each of the two contracting parties respectively, to appoint consuls for the protection of trade, to reside in the dominions and territories of the other party; but before any consul acts as such, he is to be approved and admitted in the usual form by the government to which he is sent; and it is also provided, that in case of illegal and improper conduct towards the laws or government of the country to which he is sent, such consul may either be punished according to law, if the laws will reach the case, or be sent back, the offended government assigning his reasons. (3) On a perusal, therefore, of the several treaties now subsisting between Great Britain and foreign countries, it will be seen that commerce is in general placed on a footing of equality throughout the world. Trade is not shackled with restrictions. It is by a general intercommunity of commercial privileges, by a removal of any jealous restrictions in favour of particular countries, that the most advantageous distribution is made of the general wealth (4). When a treaty has been made, the subjects of the contracting Treaty binding powers are bound to obey it, and cannot refuse compliance with its on British Subjects. serves the purpose for which it is introduced perfectly well, and it marks a total indifference to the question where the cargo_was picked up. Per. Eyre, C. J. Marryat v. Wilson, 1 Bos. and Pul. 436, 437. (1) St. Helena has been lately assigned as the residence of Buonaparte, and all vessels interdicted but those of the East India company, so that this provision has become impossible. Declara tion annexed to the treaty of 24th (3) Art. 4. The fishery at New- (4) See for the principles on which treaties should be framed, ante, 28, 40. 4 Smith, W. of N. 161. 168. ed. 1817. of British Commerce by Treaties. Encouragements provisions on grounds of expediency, or for any other reason. Sir William Scott expressly declares, that every treaty is a part of the private law of cach of the countries which are parties to it, and is as binding on the subjects as any part of their municipal laws (1). The ordinance of a particular state is not indeed of sufficient force to alter the general law of nations; but a treaty between two countries supersedes the law of nations between the contracting powers, so far as the treaty extends; or rather it is the law with regard to them, for conventio vincit legem et consue tudinem (2). The proposition, therefore, to be found in works of great repute in the profession, and which is supposed to be countenanced by a determination that took place before Lord Mansfield,—that a contract may be lawfully made to insure the performance of a voyage which violates the provisions of a British treaty (3),—seems incapable of being supported, for if, as is cer tainly the case, the infraction of a treaty is a ground of confiscation in the admiralty court, which proceeds upon the principles of the law of nations (4); and if, as is equally true, the law of nations is recognized and adopted by the law of England, how can it be said that a trade carried on in violation of the provisions of a treaty is not prohibited at common law (5)? And a contract made to insure the carrying on of such a trade is equally illegal: when, therefore, it had been provided by an article in the treaty with America, that the vessels of the United States, should not carry the goods exported by them from the East Indies to any place but to America, and an American ship having obtained a licence from the governor in council, carried a cargo from Bombay to Canton, instead of to America, it was held that the voyage was illegal and the licence void; and a policy of insurance, made to protect the vessel at and from Canton to Europe, was held illegal, on account of the illegality (1) The Eenrom, 2 Rob. Adm. Rep. 6, 7.1 Marsh. Ins. 61. note. Ante 40. 46, & 47. n. 2. (2) Pollard v. Bell, 8 T. R. 434. cited Bird v. Appleton, id. 566, 567. Christie v. Secretan, 8 T. R. 196-198. (3) Lever v. Helcher, Park. Ins. 360. cited Marsh. Ins. 61. But the decision principally took place on the ground that it was not forbidden by the law of this country to violate the private re venue laws of a foreign country ; and in Bird v. Appleton, 8 T. R. 569, 570. it seems to have been admitted, that if the voyage insured had been contrary to the American treaty, it would have been illegal; id. 196-198. (4) 8T. R. 567. 570, &c. Christie v. Secretan, 8T. R. 196. &c. (5) See also Bird v. Appleton, 8 T. R. 569, 570. and infra, and ante 47. n. 2. of British of the trade in which the vessel was engaged during her stay at Encouragements Canton (1). But it was determined, that a policy on goods" at Commerce by and from Canton to Europe" was not illegal on account of the Treaties. vessel having traded from Bombay to Canton in violation of the treaty, although the goods taken on board at Canton had been purchased with the proceeds of the cargo taken in at Bombay, and although, in trading from Bombay to Canton, the vessel had committed an act for which she was liable to be seized; because the adventure from Canton to Europe was a new adventure, and the voyage entirely distinct from that in which the illegality had been committed. (2) It was observed by Eyre C.J. in the case Marryat v. Wilson (3), Construction of that the privileges conferred by a treaty are not to be narrowed Treaties. in a court of justice, to the disadvantage of the state on which we have conferred them, by a forced and rigorous construction. The courts of justice in this country will not suppose that any indirect advantage was intended to be derived by subtle modes of argument, that do not accord with the general tenor of the treaty, as chicanery is unworthy of the British government, and contrary to the character of its negociations, which have been at all times distinguished for their good faith, even to a degree of candour which has been sometimes imagined to expose it to the artifices of more refined politicians. The nature of the trade granted, or the privilege conferred, is a good rule for fixing the construction of the grant. It is proper also to deduce arguments from the context, and from contrasting the doubtful part of the treaty with the other stipulations. And the intention and spirit of the treaty are to be attended to (4). The old treaty with America, recognized and confirmed by the statute 37 Geo. 3. contained a provision similar to that existing at the present day, which allowed the citizens of the United States freely to carry on trade between the British dominions and the United States (5). The true meaning of this article (1) Bird v. Appleton, 8 T. R. 562. The treaty was recognized, and the necessary enforcement given to it by the legislature, 37 Geo. 3. c. 97. (2) Bird v. Appleton, 8 T. R. 562. (3) 1 Bos. & Pul. 436. (4) See the observations of Eyre, C.J. 1 Bos. & Pul. 436-439. and see ante 44. as to the construction of treaties. (5) 37 G. 3. c. 97 & 117. 8 T. R 35. 1 Bos. & Pul. 436. of British Com merce by Treaties. Encouragements was at one time contended to be, that the intercourse must be immediate and direct between America and the East Indies: but as an American might have come from America to any country in Europe and bought goods and carried them back to America, and from thence to the East Indies, so there seems to be no reason why he should not be allowed to do the same thing directly as he might do indirectly; and after full consideration, it was determined that a different construction is to be put on the treaty, and that the trade between America and the British settlements in the East Indies, may be carried on circuitously through any country in Europe inclusively of Great Britain. Lord Chief Justice Eyre made the following observations when the case was removed by writ of error to the court of exchequer chamber: "The language of the 13th article is, that the citizens "of the United States may freely carry on a trade between the "said territories and the said United States, in articles not en"tirely prohibited. They are therefore not restricted to trade "in articles of the growth, produce, and manufacture of the "United States: it is enough that the articles they trade in are "not articles prohibited from being imported to the British ter"ritories in India, or exported from thence by any body. If, "then, they propose to trade with the British territories in India "in foreign commodities, as they may do, they must use means "to furnish themselves with those commodities. In the nature "of things it must be done in a course of trade. The obvious "¿course of trade is, that they should carry their native commodi"ties to other countries, where they can be exchanged with the 66 most advantage for articles proper for the East India market; "and that they should then proceed to India in order to carry on a trade there in those articles. I find nothing in the treaty ❝which will warrant me in saying that it was the intention of the "contracting parties that the trade conceded by the treaty "should not be so carried on. The counsel for the defendant "found himself obliged to acknowledge that the citizens of the "United States might, within the terms of this treaty, first "import into America the articles in which they propose to "trade with the British territories in India, and then export "them from America in a direct voyage to the East Indies, and ❝he could not deny that they might have imported these articles "into America even from London. Indeed it would have been 66 a most extraordinary state of things if they might have gone |