Of the Trade with the United States of America. What is an production, or manufacture of the United States, in British-built ships owned and navigated according to law, into those two provinces. And by the 48 Geo. 3. c. 125. governors of Nova Scotia or New Brunswick, or islands of Cape Breton or St. John's, by the advice and consent of their respective councils, may authorize the importation of the articles enumerated in the first section of the act 28 Geo. 3. c. 6. for a limited time, from the United States, for the purpose of exportation to any other of the British colonies; and all the benefits and regulations mentioned in that act in regard to the North American colonies, West India possessions, and countries bordering on the United States, we have seen are extended to Demerara, Berbice and Essequibo. (1) These are the principal regulations of this branch of the trade between the United States and the colonies of North America. The same policy that directed our colonial system, before the independence of the United States was established, and which, we have seen, prohibited as far as practicable the intercourse of any other independent state with the British plantations, seems to have been observed with respect to America; and when we consider the propinquity of that state to our colonies, and her increasing maritime strength, it will be obvious that the utmost caution ought to be observed in introducing any relaxation of the general line of policy in this part of our navigation system. Having thus considered all the regulations of the navigation laws, it will now be proper concisely to inquire, what is to be deemed an "importation," so as to create a forfeiture within the meaning of the several enactments relating to navigation. The regulations introduced by the hovering acts relating to smuggling, will hereafter be considered. The general rule is, that the importation of goods is always accounted from the time of the ship's coming within the limits of the port, with intent to lay the goods on land (2). At a time when the importation of French goods was prohibited, a ship laden with French wines from Spain to Ireland, was driven into Plymouth by stress of weather, and it was submitted to the law officers whether this (1) Ante, 240, 1. bulk, is prima facie evidence of an importation. Edwards Adm. Rep. 135. Evans' Stat. 2 vol. 659. was an importation. Sir Robert Sawyer said, that if a ship What is an Importation. was bound to a foreign port, but in pursuing her voyage was driven into an English port by stress of weather, it would be no importation; but if she was bound to an English port, or came with a design to land the goods in England, the coming in by stress of weather would not prevent the incurring of the penalties imposed for an illegal importation. Sir George Treby was of the same opinion; but declared that it was not to be extended where there was mala fides, and a positive intent to break the law (1). On another occasion, Sir Robert Sawyer gave a different opinion, and declared that the coming in of a ship into port in stress of weather is no importation within the act, and the intention to break the law could work no forfeiture. Mr. Constantine Phipps agreed with Sir Robert Sawyer; for, said he, an intention to break the law should not subject the ship and goods to forfeiture; for the merchants and owners might have altered their voyage, and ordered the ship to some other port; and a bare intention to break the act of parliament is not punishable, nor can the intention make any alteration in this case, in strictness of law; for the only point in issue upon the information would be, whether the goods were imported contrary to the act; and he never knew that the coming in of a ship by stress of weather was ever construed an importation. Mr. Warde and Sir Francis Pemberton held that the intention did not alter the case, and that coming in by stress of weather could not be an importation (2). We may therefore conclude, that the coming in by stress of weather is no importation under the act of navigation (3). Where a ship loaded with teas was driven into Yarmouth harbour, Sir Philip Yorke clearly held it not a case to proceed upon; he seems to have paid no regard to the circumstances which shewed the ship to be bound to Newcastle, contrary to the declaration of the master, who alleged he was bound for North Bergen (4). Where a Dutch ship was stranded on the coast of Sussex, with goods the product of Surinam, Sir Philip Yorke of opinion that the goods might be admitted to an entry if the commissioners of the customs were satisfied they were was (1) Reeves, 2d ed. 197. (2) Reeves, 1st ed. 256. 2d ed. 198. (3) To same effect, see Sir William Scott's judgment in case of Abby, 5 Rob. Rep. 251. and case of the Eleanor, Edwards Ad. Rep. 135. and post and the case as to deviation in insurance cases, Fos- (4) Ante, 176, &c. As to the im- What is an fairly stranded, without any fraudulent intent to evade the act of navigation; for the prohibition of that act was not an absolute prohibition of the importation, but only a qualified one, as in case they were imported in ships not duly navigated, or from any place not being the place of their growth, production, or manufacture, or from the ports where they had not been usually first shipped for transportation; and stat. 5 Geo. 1. c. 11. s. 13. has declared that all stranded goods should be liable to the same duties as if they had been regularly imported. As to the frauds that might be committed under the colour of stranded goods, the commissioners might always exercise their judgment, whether it was a case where the goods should be admitted to an entry or not. (1) Before the hovering act (2), when small vessels loaded with brandy used to come into port in the night-time in moderate weather, without any urgent necessity, Sir Edward Northey held that that would be an importation, although no bulk was broken, if such intent could be clearly proved; and Sir Dudley Ryder said, that the mere coming within the limits of a port, without any intent to break bulk, is not looked upon as an importation within any of the acts, either to make the customs become due, or subject the ship or goods to forfeiture, or to oblige the master to report or make an entry, or to require a coast cocket. (3) We come now to the judicial decisions on this head, of which we shall find but few. There was an information of seizure of goods in a ship that was twenty miles below the Hope, but within the limits of the port of London; a new trial was moved for upon a doubt, whether this could be said to be an importation? but the new trial was refused, and it was therefore concluded the court judged this to be an importation (4). Where a ship, some of the mariners of which secretly carried teas on board from Ostend to Lisbon, came to the port of Cowes to mend her bowsprit; she was seized by the officers, after which some goods were run to the sailors. The chief baron (5) held this not to be an importa (1) Reeves, 2d ed. 199. (2) 5 Geo. 1. c. 11. son, (5) Attorney General v. JackBunb. 236. Anno 1727. (3) Reeves, 1st ed. 256. 2d ed. Reeves, 261. Com. Dig. Naviga200. tion, I. 2. (4) Bunbury, 79. tion within the act of navigation, and that such running did not What is an amount to a forfeiture, because, after the seizure, the ship was Importation. in the power and controul of the officers; but the jury gave a verdict for the forfeiture, thinking the coming into Cowes was only a pretence, and the running afterwards declared the first intent to have been fraudulent (1). It had been usual, on the trial of informations for forfeiting goods illegally imported, to produce the master of the ship as a witness for the defendant, and no objection was made to his competency, especially if there was no information for forfeiture of the ship, till a case which happened in 1723, when it was insisted that the ship as well as goods was forfeited, and the objection was held to be good. Accordingly, in 1724, at the trial of an information on stat. 9 & 10 W. 3. c. 10. s. 3., for importing Indian silks, the master of the ship being offered as a witness for the defendant, he was refused by lord chief baron Eyre, because, although no prosecution had yet been commenced, he was liable to one (2). In the case of Idle v. Vannech (3) it was contended for the defendant, who was prosecuted for bringing goods from Rotterdam, not being the place of their growth, that the goods were brought either by the passengers or the mariners, without the knowledge or privity of the master; and it was hard to subject the master, and much more the owner, to a loss for a cause of forfeiture which they could not prevent; and they relied on stat. 27 Edw. 3. c. 19. and stat. 38 Edw. 3. c. 8. But lord chief baron Pengelly said, his present thoughts were, that knowledge in the master was not necessary, for the act is an express prohibition, without any limitation or qualification, and the fact proved came directly within the description of the act; the forfeiture was upon the goods themselves, and not upon the person: the intention of the law was to support trade, and therefore it might be presumed all persons would take the utmost care trade should be carried on without fraud: the owner is to take care what master he employs, and the master what mariners and what passengers he takes in; and being "exercitor navis," and having the entire controul of the ship, he may search and examine when and where he will: no damage accrues to the owner, for he may recover against the master for the forfeiture of the ship, accruing by his default; and (as he thought) the master might recover against a passenger who caused a forfeiture; there is more (1) Anno 1727. (3) Bunbury, 238. Com. Dig. Navigation, I. 2. vol. 661. n. 5. reason the owner should suffer, as he had benefit of the freight which occasioned the forfeiture; the master is to report, and therefore is obliged to see what he does report. Such was the opinion delivered by the chief baron, though he meant to reserve the point for the opinion of the court; but it turned out not to be necessary, for the jury found that the defendant had actual knowledge of the fact. On a motion for a new trial, all the barons agreed in opinion, that notice in the master was not necessary to create a forfeiture upon this act, though, for a small matter, they thought it hard a ship should be condemned. These are the words of the act 38 Edw. 3. c. 8., of which it is much doubted whether it be not repealed. On a subsequent occasion (1), in 1733, this distinction was made upon the point by lord chief baron Reynolds, namely, Whether the goods so brought were or were not part of the cargo? and therefore, if mariners or passengers privately bring over a small parcel of goods, they are not to be looked upon as part of the cargo, and it would be hard the ship should be forfeited for such a cause. This question was again moved in 6 Geo. 3. in Mitchell v. Torup (2), being an information on the fourth section of the act of navigation for the importation of 221 lbs. of tea from Norway, which were found by the jury to have been put on board by the mariners without the knowledge, privity, or consent of the master, mate, or owners; and chief baron Parker observed that the words of the act in the first, second, third, and fourth sections were all equally negative, absolute, and prohibitory; they operate both on the goods and the ship, and there is not a syllable that hints at the privity or consent of the master, mate, or owners: the reason of penning the section in such strong terms was to prevent as much as possible its being evaded; for if the privity or consent of the master, mate, or owners had been made necessary, the provisions of the act would have been defeated. That it also appeared that the twelfth, thirteenth, and fourteenth sections did not contradict but enforced the words of the fourth clause; and that when the whole act was under the consideration of the legislature at several subsequent periods, as at the times of making stat. 14 Geo. 2. c. 36., 17 Geo. 2. c. 36., 25 Geo. 2. c. 32., no relaxation, to make the privity or consent of the master, mate, or owners necessary to (1) Bunbury, 232. Reeves, 264. Com. Dig. Navigation, I. 2. (2) Parker, 227; and see Attorney General v. Jackson, Bunb. Com, Dig, Navigation, I. 2. 236. |