production of debentures, or other official instruments, certifying the re-exportation of the goods.

By these means, the American merchant, whether trading on his own account, or as an agent for the enemy, was enabled securely to carry on a commerce, such as the royal instructions were far from meaning to tolerate. If by any accident or inadvertency, the preceding branch of the voyage should be discovered, he had an excuse at hand, such as would be accepted by the British prize court; and which he was prepared to support by such evidence, as he knew beforehand would suffice.

But rules of practice, which have been devised by any court, for the guidance and assistance of its own judgment on questions of fact, can evidently not be binding on the court itself, when discovered to be no longer conducive to that end; much less when they are found to be made subservient to the purposes of imposition and fraud. The lords commissioners of appeal, therefore, finding it manifest in a recent case, that the alleged importation into Salem, of a cargo which had been shipped in Spain, and afterwards reshipped for the Havannah in the same bottom, was wholly of a colourable kind; and that, notwithstanding the usual clearances and certifi

cates, the duties had not been finally paid to the American custom-house; rejected the claim, and condemned the ship and cargo*.

In this case, as in others of the same description, there was found on board an affidavit of the proprietor, stating, that the goods had been "laden "on board from stores and wharfs at Salem, and "that the duties thereon were secured to the Uni❝ted States, or paid according to law." Yet it afterwards appeared, by his own admission, that he had only given the usual bond on the entry of the cargo from Barcelona; which, as we have seen, is in effect a security to re-export, rather than to pay duties on, the cargo; and which had been accordingly cancelled on the re-exportation.

Two other American cases were soon after heard at the Admiralty, in which, under similar circumstances, the learned judge of that court made similar decrees; holding that this mode of landing, and paying or securing duties on, the cargoes in America, was not sufficient to constitute an importation into the neutral country, so as

*Case of the Essex,

1805.

Orme, at the Cockpit, May 22,

There were in this case great doubts as to the neutrality of the property; and their lordships did not express on what ground they decided; but their sentence was understood at the bar to have been founded on the illegality of the trade.

to break the continuity of a voyage from the French colonies to Europe, and thereby legalize the transaction under the indulgent instruction now in force; the intention of the parties, as was manifest from the other facts in evidence, having been to elude the legal restriction*.

It seems impossible for any man seriously to disapprove of these decisions, without denying the validity of the rule of law, which it is the purpose of these colourable importations into America to evade a rule which, as we have seen, is acquiesced in by the neutral powers themselves.

The payment, or non-payment, of duties in a neutral country, obviously cannot, of itself, vary our belligerent rights; nor can the mere landing and reshipment of goods, without a change of property or intention, give to the owner any right of carriage which he did not previously possess. -Those circumstances consequently were never regarded in the prize court as of any intrinsic, or substantive importance; they were merely considered as evidence of the alleged primary intention of the neutral importer; and that intention was enquired into only for his benefit, in order to absolve him from strong general presumptions against the fairness and legality of the voyage. It

*Cases of the Enoch and the Rowena, at the Admiralty, July 23, 1805.

would therefore have been inconsistent and preposterous, to give to any, or all of those circumstances, any justificatory effect, when they were found not at all to support the favourable conclusions which had been originally drawn from them; but rather, on the contrary, to confirm the general adverse presumptions, which they had been once supposed to repel. When it was found that the duties had been secured, not in a way naturally applicable to goods meant to be sold and consumed in America, but in a mode devised for the special convenience of importers intending a re-exportation, the suspicion that the claimant originally meant to continue the voyage, as he eventually did, was obviously strengthened, if not absolutely confirmed.

If the justice or consistency of our prize tribunals in these cases, needed a further defence; it might be found in the great frequency, I might say universality, of the excuse which they had too indulgently allowed. The credit of the main pretext itself, was worn out by frequency of use.

A man on whose person a stolen watch should be found, might allege that he had picked it up in the street, and might find probable evidence to satisfy a magistrate that his defence was wellfounded: but what if he were found possessed of ten or twenty watches, stolen at different times,

from different persons, and should offer in respect of them all, the same identical explanation? The same evidence would now be reasonably regarded as insufficient to deliver him from the highly aggravated suspicion.

Or, to borrow an illustration from a case connected with our general subject, and one which is practically notorious:-A neutral vessel is taken in the attempt to enter a blockaded port, which lies wide of her course to that place to which she is ostensibly destined: the excuse offered to the captor is, that a storm had driven her out of the proper course; and that, being in distress, she was going into the blockaded port of necessity, in order to refit. For once, or twice, perhaps, such excuses might gain credit, on the oaths of the master and his people; but a multitude of vessels are taken in the same attempt; and all their masters give precisely the same excuse. They have all met with a storm; and are all obliged by distress, to put into the prohibited port. Surely the commanders of the blockading squadron, and the judges of the prize courts, may now justifiably shut their ears to this stale pretext; unless it comes supported by more than ordinary evidence.

So in the case before us, when it has been found, during several years, that all American merchants detected in carrying from their own

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