
    Faudel and another against The Phœnix Insurance Company.
    
      Monday, March 30.
    from St. Tho-assured free cha?ge"dam. arise in consezur" or detention of the property for or on account prohibited trade.” The captured by a va’ half a league t''er more than a league Laguira, FortoCawere condemJji¡?ree of* th° Aranjuez of 19th Februa1809# creeof2ist- - November, 1806, forbidding trade in British merchandise, and merchamiíse ' belonging to England or ; comingfromits ™JcuSer‘es lawful prize. meaning of the Held, that this was not a loss by seizure for illicit or prohibited trade, within the warranty.
    “ any illicit or prohibited trade.’ THIS suit was brought on a policy of insurance effected with the defendants on . the 30th June, 1807, by Messrs, Gurney fi? Smith, as agents for the house of Faudel'& Stack-man, of St. Thomas’s, at a premium of six per cent, -on goods on board the schooner Antoinette, Louis Colombo master, at and from St. Thomas’s to Laguira and back. The property was “ warranted by the aissured free from any charge, “ damage^ or loss, which may arise in consequence of the “ seizure or detention of the property, for or on account of
    The Antoinette sailed from St. Thomas’s on the 14th June, 1807, and on the 18th of the same month, at the'distance of half a league from Macuto, and rather more than a league from Laguira, she ,was met by- a Spanish privateer called the Escova, which took possession of her and carried her into Porto Cabello, where proceedings were instituted in the court of admiralty, in consequence of which the plaintiff’s goods J 7 * 1 , • ° were condemned, and the vessel and the rest of the cargo stored. The sentence of the court, or council in which the proceedings took place, the Reporters have inserted at length, thinking it would be more' satisfactory to publish the whole document, than to present a mere abridgment which might be defective. Indeed it was found difficult, if not impossi- „ , ,, ,. ble .to condense it, without impairing the whole.structure oi the decree, and rendering the grounds on which the council proceeded less intelligible. ,
    
      » TRANSLATION.
    
    “ I, the undersigned notary, certify, that the following sentence was this day agreed on by the members of the J ° J COUUCll. ^
    “ In Porto Cabello, on the twenty„-fourth day of June, one thousand eight hundred and seven, the members of the coun« cil being met,, present Don Augustin de Figuerva, chief commandant of marine of said place and of the adjacent islands, inciucjjng. Porto Rico; military commandant of seamen and persons employed in commerce; special judge in cases of prizes, shipwreck, fisheries, and navigation ; member of the boards of health and of property, and president of this council, and thé other members whose names are hereunto signed, who being met for the purpose of deciding on the legality of the capture of the Danish schooner called the Antoinette, taken by the private armed vessel belonging to this place, called the Escova, on the eighth day of the present month; and having heard the opinion of the auditor founded on the royal order of the twenty-third of February in the present year; on the imperial decree, and another royal order of the twenty-fifth day of August of the last year j and on the decree for opening a free trade with the allied powers ; and in conformity thereto did- decree and do declare as having been lawfully detained, the said schooner, and that the goods and effects found by the surveyors to be English manufacture, are lawful prize ; that the rights of the parties be reserved to them for such purposes as they shall think fit, conformably to. the sixteenth article of the ordinance relating to private cruizers, and that the box of woollens, of which the two surveyors were doubtful, as well as their umpire, be delivered to the captured captain, together with the other goods and effects not of the said manufacture; that his papers be returned to him, leaving a proper memorandum therefor; and that a valuation of the aforesaid goods and effects be made, and that they be disposed of at public auction, and public notice given thereof at the usual placesnotifying the officers of the royal finance, that they may settle the account of the owners of the privateer, and persons interested therein; and the sale being completed, that there be deducted from the whole amount, the tenth'part belonging to the admiralty, which shall be deposited in the treasury of the marine, and also deducting the charges and fees due to the present notary; the remaining goods to be freely delivered to the owner of the privateer, to be distributed amongst those interested, according to their contracts, and agreements ; and that this act be entered of record, and the parties notified thereof. Thus done, conclude ed and signed, which I, the said notary, certify. (Signed) &c. Before me, Fernando Ponce, marine notary. The foregoing is a true copy from the original remaining on the record of the acts of council, and to which I refer. In testimony whereof I have signed and sealed the present in Porto Cabello, the day, month, and year of its passage. (Signed) Fernando Ponce, marine notary.
    “ Notification. I immediately afterwards communicated the preceding sentence to Don Louis Colombo, and through him, to the supercargo, Mr. John Henry Otto Eschen, in the royal custom house. Certified, Ponce, notary.
    “ I then communicated the same to Don Vincente de Ayesta, at his house, as owner of the privateer called the Escova. Certified, Ponce, notary.
    “ I, the undersigned notary, certify, that at a court held yesterday, the following decree was passed ; In this district of Porto Cabello, on the fourteenth day of July, one thousand eight hundred and seven, the court being full, present Don Augustin de Figuerva, brigadier of the royal navy, chief commandant of marine at this place, and the adjacent islands, including Porto Rico; military commandant of seamen and persons employed in commerce; special judge in cases of prize, shipwreck, fisheries, and navigation ; member of the boards of health and of property, and president of this coun-. cil; and the other members whose names are hereunto signed, being met in order to determine on the incidents moved by the consignee of the brig Sea Nymph, and the supercargo of the schooner Antoinette, and having heard the opinion of the auditor, which is as follows:—
    “ Messieurs, the President and Members of the Court,
    “The correspondence or connexion which is preserved amongst our laws, wisely established for the purpose of injuring our. enemy, far from preventing the progress of so important an object, forms a code of rules supported by which the Judge may assert with the decisive stroke of decision, (without injustice to either party,) the honour of the nation, and an exact compliance with the will of our sovereign. This requires from your superior tribunal, as being the depository of his authority and confidence, to support the laws aiuj general customs of the kingdom, and those of the pro-. v‘mces within the extent of this district, by creating for that purpose within the same, subordinate tribunals, upright and justi in order to turn to the benefit of the state the fund of concealed ferocity, which is found in all those enjoying the privileged jurisdiction of the marine, and at the same time to furnish to them objects which may electrify them and infuse into them an ardent love for the royal service. The ill understood policy with respect to our allies in resting upon their good faith, that they would not introduce goods of English enemy manufacture; the imaginary prejudice which is supposed to result to commerce by prohibiting a similar intercourse, and the plausible arguments by which it is attempted to prove the lover of agriculture will be ruined if our ports are closed against the malevolent industry of the haughty English, are mere pretences used by heedless individuals, who aspire only to the increase of their wealth, and to'avoid the smallest sacrifice which might turn to-the benefit of their king and country. But none of • these considerations will prevent your excellencies from encouraging the persons engaged * in cruizing, in detaining every neutral vessel bound to ports on this continent, should their cargues contain any portion of goods manufactured by the tyrants of the seas, and the sacrilegious infringers of the rights of peace, as well as of war. It is not known to whom the goods belong, except so far as is shewn by those who carry them, and it is very probable, that when they come' sealed with the arms of the enemy, they own part if not the whole ; or that the neutrals being' sure that they would’ not be repulsed ; or that even if it was attempted, their bare assertion will be sufficient to tranquillise the most ardent zeal, through respect for, the rights of neutrality; the prohibition pronounced by an edict, and communicated to them, whereby they cannot argue that they have not been apprised of the circumstances under which they have been admitted into our ports, that is to say, under the express condition of not importing goods of English manufacture, persuaded the maritime authority, that neutrals complied exactly with the conditions agreed on, by the. frequent importation of goods and effects, which they made during a year or more, since the date of the act of 25th'June, of last year, issued by the authority of the captain general, superintendant of the province. But the captures made by privateers from hence, have given us physical proof of the fraudulent conduct of the allies, in contempt of the authorities who made the aforementioned act, and it is also proved by the interception of prohibited goods, effected by the Guarda Costas, in the very bay of this port, which were attempted to be introduced clandestinely in spite of the vigilance of the land guard. This alone would be sufficient to pronounce as good and lawful prize, the goods and effects found on board the vessels ; the schooner Antoinette, coming from St. Thomas, an allied colony, belonging to Denmark, and the hermaphrodite brig the Sea Nymph, of North America, which, loaded with a great number of bales and trunks of goods, manufactured by hands, stained with the blood of the innocent victims, which excite our rage, and impel us to a just vengeance, would endeavour to introduce them by the same manner in which the' others attempted.
    And from such reproachful, illegal, or clandestine importations, what benefit can arise to the treasury or to the country ? Those Spaniards offend against the former, who have had the baseness to mix with such vile commerce, and no honour could arise to the latter, by sheltering in its bosom such atrocious delinquents. ' How many goods have already been introduced by our enemies, under the cloak of neutrality, by the tolerance of believing on their bare assertion, that the marks and stamps were used to obtain better sales ? Is not this a deception ? Yes, sirs, contrary to the laws of commerce. Such conduct from foreigners discovers malice. This on the supposition that their ignorance of a prohibiting law cannot excuse them. It should rouse the resentment of every Spanish subject, if there yet runs in his veins any of the blood of his ancestors, those faithful soldiers, who, in the support of the rights of the monarchy, made whole kingdoms tremble, and who far from having any thing to do with such shameful proceedings, or suffering themselves to be seduced by their avidity, will rather nobly support a prohibition, which of itself is' sufficient to prostrate the enemy, and drive him to inconsolable despair. The private cruisers in pursuance of the orders which authorise them to examine neutral vessels, detain and carry them to the ports where they are fitted out, in case of having well founded suspicions, that part, or the whole of the cargo may belong to' enemies' of the crown, have intercepted, on the coast, and within sight of the ports of this province, the two vessejs jn question, under strong suspicions that almost the -whole of their cargoes belong to our enemies ; and the goods , . , , having been examined by intelligent surveyors appointed by the parties, being found to be from the manufactories of London, and the reasons alleged by the captured, shew that they have endeavoured to introduce the said goods by surprise, which they now acknowledge to be of that kind, whereas, before they were brought into a Court of justice by the captor, they denied to be such, under the oath of their religion. It also appears, from-the proceedings in this case, that there has been published in North America, in the usual form by the public papers, the imperial decree, and the royal order of the 9th February, in the present year, which fact argues against all the captured parties, and convicts them of smuggling. It also appears, that our enemies do not respect the neutral flags, but capture all neutral vessels leaving our ports laden with goods the manufacture of our country, and by a reciprocity founded on the said ordinance, we ought to declare as good prize, the vessels of friendly powers which have on board enemies’ goods. From what has been advanced, there is no reason to doubt the propriety of pronouncing sentence, in the case of the Antoinette and the brig; considering, that by the 19th article, which authorises Spanish cruisers to examine neutral vessels, and in case of their not being willing to submit themselves to a regular examination of their papers and cargo, to oblige them by force, if they find the 20th part to be prohibited goods, or they doubt as to the property of one 25th part, in. consequence of the quality of their fabrics, involving vehement suspicion that they are enemies property. That the goods in question are prohibited, the act of the 25th June, already cited, sufficiently proves; and that the captured have proceeded fraudulently is sufficiently demonstrated; the condemnation, therefore, as good prize, would be just and regular, and in conformity with the royal order of the 25th August, 1806, there ought to be delivered to the owner of the privateer, the confiscable articles, deducting the 10th part belonging to the admiralty, leaving to the captured, in virtue of the royal order of the 9th July, 1805, the vessel, and remaining goods of lawful introduction ; in doing which, it appears to me, the royal will is complied with, by acting on these considerations with these friends. But no, gentlemen. This tribunal sits in the view of provinces, which are criticising the conduct of privateers, as violations of the laws of neutrality, notwithstanding they are acquainted with the positive data, which I have stated. And yet there are those who have entered the field of controversy, representing this as prejudicial to commerce, to the treasury, and to agriculture, though they must be well convinced of the contrary; being inclined to protect with this false view, a delinquency, which, if we advert to the manifest which his serene highness, the prince generalissimo and admiral, thought proper to issue on the 20th December, 1804, ought to be punished as the most abominable offence. Let it be the Supreme Tribunal of the Admiralty, by the terms of the royal order of the 19th February, and the imperial decree, which, with its high penetration, shall seal the irreproachable conduct of this tribunal, and of the privateers. Their owners would gladly receive a determination which would give them a hope of seeing their conduct approved by the first authority of the royal body of marine ; and in case of captures, where a condemnation does not follow, the detention will be a warning to neutrals to abstain from illicit trade, without its working as a discouragement to the interception of clandestine commerce: and to the assailing of the enemy with such honourable hostilities, and although this district is under critical circumstances, being obliged, as it were, to beg for its subsistence, in consequence of the refusal of the superior authority to furnish the necessary funds for that purpose, yet this has not dismayed the zeal of your honours, in making the last efforts when occasion and necessity require, to convince in a short time, our haughty enemy, of your sacred ardour for the national honour. I am, therefore, of opinion, that in conformity with the twelfth article of the ordinance relating to private cruisers, the proceedings in the present case, be laid before the supreme tribunal of the admiralty, by way of consultation, and the parties notified ; and the record carried up, and that it may be pleased, to decide according to the royal will. That the goods and effects being sold at public auction, in the manner directed by the decrees of detention, of the 24th and 27th June last, the portion belonging to the admiralty, be deposited in the royal treasury; and the remaining sums be delivered to the owner of the privateer, under sufficient security to return the same, if in any event it should become rleceggary . ancJ jn case he js not vvilling to give such security* jt ge deposited in the marine treasury, until the supreme det J 1 termination. That the present decision may serve as a rule for all other prizes of this nature, brought by privateers into this or other ports within this jurisdiction, for which purpose, let a certified copy of these proceedings be sent to all the inferior tribunals, to prevent injury to the parties having recourse thereto, and also a certified copy op' the royal order aforesaid, and the documents on which my arguments are founded, that the same reasons may be objected to those who are opposed to these proceedings. And as it respects the last survey on the goods and effects of the Antoinette, although it is supposed, that the first was sufficient, yet, in consequence of its differing from the second, let there be restored to the owner, the trunk of linens, and box of veils and ribands, and taking as English manufacture, the hogshead and box of glass ware, together with the trunks of cotton stockings. But, notwithstanding my opinion, your excellencies will be pleased to decide as usual, according to justice. Agreed to by the council, and it conforms to the literal meaning thereof, and orders, what is therein recommended, to be carried into execution. That from the sale to be made, there be deducted the costs, charges, and fees, which shall be taxed by the present notary ; and that a certified copy of these proceedings be made out and communicated to the parties. Thus done and signed; which I the notary certify. (Signed), &c. Before me, Fernando Ponce, marine notary.
    “ The foregoing is a true copy from the original, to which I refer; in testimony whereof, I have signed the present in Porto Cabello, on the fifteenth day of July, one thousand eighty hundred and seven. (Signed), &c. Fernando Ponce, marine notary.
    “ Notification. Immediately afterwards, I made known the preceding sentence to Don Vincente Maria de Ayesta, at his house, as owner of the privateer, the Fscova, which I certify. (Signed), Ponce, notary.
    “ I then communicated the same to Mr. Luis Colombo, captain of the schooner Antoinette, and by means of him to the supercargo, Mr. John Henry Otto Eschen, as he understood the English language, at the .house of Don Felipe de Villar ante, and in his presence; and they were fully made acquainted therewith. Certified, Ponce notary.
    
      “Porto Cabello, 31st July, 1807. On this day, between twelve and one o’clock in the afternoon, the following memorial was delivered to me for presentation ; and at the request of the party, I have made a memorandum thereof. Certified, Ponce, notary.
    “ Memorial. To his excellency, the commandant of marine, John Henry Otto Eschen, supercargo of the schooner Antoinette, belonging to St.'Thomas, detained by the privateer commanded by Don Gerónimo de Arreche, in right of his freighters, Messrs. Faudel £í? Stakeman, respectfully represents ; that in consequence of the tribunal of the 27th of the present month, directing that I should be furnished with the necessary documents, relating to my detention, if I should require them, I request that the notary may deliver me triplicate-copies of the decrees of the 24th and 27th June last, and of the 14th July, inserting the valuation of the fiftyfourpackages,writhvariousmarksandnumbers,thathave been detained and declared prohibited, of the cargo of said vessel, whereof I am the consignee ; and the said three copies being made, I am ready to pay the customary fees. I pray your excellencies will be pleased to order according to my request, it being just and necessary. Further, that you will be pleased to order to be restored to me, the original invoice and papers belonging to the cargo of the schooner, delivered by the government of St. Thomas; which I presented to shew the impropriety of the detention of the vessel; since she must now proceed to Laguira, with the goods which have not been declared prohibited ; a proper memorandum being made of the delivery thereof to me. (Signed), John Henry Otto Eschen.
    
    “The preceding having been presented. Ordered, that authenticated copies of the proceedings of council be granted, but without including what is requested as to the valuation, it being inadmissible. Further, let the invoice presented by the party be returned ; the other papers requested, have been delivered to the captain of the Antoinette, Luis Colombo. (Signed), Figuerva Hernandez. Thus ordered by his excellency, the principal commandant of marine, with his excellency, the auditor, in Porto Cabello, on the first day of August, 1807. Before me, Fernando Ponce, marine notary.
    “ Immediately afterwards, I communicated the preceding to the party, at the house of ‘Don Felipe Villas ante, leaving a copy of the documents ordered. Certified, Ponce, notary.
    “ The foregoing documents are true copies from the originals in the present case, and to which I refer. And for the purpose of delivering them to the party, I have caused the present copy to be drawn out, and have signed and sealed the same, in eighteen leaves of paper, the first with the second stamp thereon. Porto Cabello, 6th August, 1807. (Signed), Fernando Ponce, marine notary.”
    The cause was tried twice ; first on the 8th March, 18IS, when the jury found a verdict for the plaintiffs. A new trial was granted for the purpose of enabling the defendants to procure evidence of the existence of an alleged order of the king of Spain, or of the captain general and intendant of the province in which Laguira is situated, prohibiting the importation of goods of British manufacture. The second trial took place in November, 1817, before Duncan J. at Nisi Prius, When the plaintiffs examined James S. Coxe, esq. President of the Insurance Company of Pennsylvania, who swore that 3 per cent, was a good premium for a peace risk, at and from, St. Thomas to Laguira, in the month of June, which was as fine a season as there could be for the voyage ; that it was a voyage of only two or three days to Laguira, but that a fast sailing vessel might be a week or ten daj’s in returning. Several witnesses were examined under a commission to St. Thomas, who swore that although they had been much in the trade between St. Thomas and Laguira, they did not, at the time the Antoinette sailed, know of any decrees of the French or Spanish governments prohibiting the importation of English, manufactures into the Spanish colonies ; that they had never known of the .official publication of such decrees at St. Thomas or on the Spanish Maine, and that both before and after the capture of the Antoinette, vessels were admitted at Laguira with goods of English manufacture on board, which were regularly entered at the custom house, paid duty, and were openly sold.
    On the part of the defendants, one witness swore that he engaged in a voyage from Philadelphia to Laguira, in the schooner Juliette, and arrived off the port of Laguira towards the end of June, 1807, when he was captured in sight of the place by a privateer, on the ground that the schooner was loaded with British goods; that he heard it said that the Berlin decree had been proclaimed, by beat of drum, as the law of the land ; that other vessels were stopped on the same account, and that all those which were carried into Laguira were acquitted; while some were condemned at Porto Cabello.
    After the testimony was closed, and the cause discussed by the counsel, the following charge was delivered to the jury, by
    Duncan J. This action is on a policy of insurance, underwritten by the defendants on goods shipped on board the Antoinette, at and from St. Thomas to Laguira, and back, “ warranted by the assured free from"any charge, damage, or loss which may arise in consequence of the seizure or detention of the property, for, or on account of any illicit or prohibited trade.” The undisputed facts are, briefly,—The schooner sailed from St. Thomas for Laguira on the 14th June, 1807. She proceeded on her voyage until the 18th, when, within little more than a league from Laguira, and within half a league of Macuto, she was captured by a Spanish privateer, and carried into Porto Cabello, where the plaintiff’s goods were condemned, and the vessel, with the rest of the cargo, restored. The condemnation was on the ground that these goods were of British manufacture. The neutral character of the vessel, and of the owners of the goods, the protest and the abandonment are clearly proved. The defendants gave in evidence a sentence of condemnation by the counsel of Porto Cabello, and contend that they are not liable for this loss, because they say it happened in consequence of a seizure and detention of the property on account of an illicit or prohibited trade. By the plaintiffs it is insisted on, that they are liable for this loss, because they say it happened in consequence of a seizure and detention of the goods as goods of British manufacture, and that the trade in British manufactures was not an illicit and prohibited trade, within the meaning of the exception, inasmuch as there was no other prohibition than the Berlin decree of 21st November, 1806, adopted by Spain, on the 19th February, 1807, which they contend was against the law of nations, and a lawless violation of the property* insured against by the policy, and not excluded by the exception'. Other testimony is given by the parties; the time in which the voyage could be made, and the premium, t0 sbew, as the'plaintiffs contend, that the risk contemplated was something more than that of a common sea risk. The plaintiffs likewise have produced the testimony of several witnesses, tending to prove a -constant and uninterrupted traffic, except in certain instances, three or four, in British manufactures between St. Thomas and Laguira; entries at the custom house, and public sale of goods of this description ; this not only by the captain, but by several merchants who had sent adventures of British goods to Laguira, which entered the port, paid the duties, and were sold, not clandestinely, but in open market, without any interruption or molestation, after all the decrees that have been spoken of; and the letter of the governor of St. Thomas tending to prove the same fact. These witnesses' all declare that they had no knowledge of any prohibition, order, or decree. Let it be understood that ignorance of the law can form no excuse for the assured, because all who trade to any country, take upon them’the knowledge of the laws of that country.
    If the seizure and condemnation were founded on the Berlin decree, adopted by Spain, and not on any domestic regulation of trade, commerce, revenue, or navigation, or some colonial restrictive system, but rest solely on these decrees, my opinion is, that it does not fall within the meaning of the warranty or exception. The illicit or prohibited trade which is excepted from the indemnity, would appear to me to be losses happening from a seizure and detention founded on some breach of the trade, revenue, or navigation laws, some municipal restriction or prohibitory regulation, which every nation possesses the right to make and to enforce by seizure and confiscation, not only within her territory, but on the ocean, at the distance from her territory at which this seizure was made, as a measure preventive of the infraction of her laws, affording an evidence of intention to enter a prohibited port, or with goods on board prohibited. The Berlin decree, and the Aranjuez adoption have not this complexion, but a very different one. In all the defences of, or apologies for, these atrocious decrees, and the correspondent British orders in council, it has not been pretended but that they were war measures in the abstract, and originally unjust, and against the law of nations. Its justification by Napoleon is not as a measure of original right, but as retaliatory against England, disregarding the law of nations, and trampling on neutral rights. In England, her orders in council have, in her courts, . ° , * .. been only attempted to be justified as retaliatory war measures ; each nation asserting that this violation of the' national law and neutral rights had for its justification, palliation, or excuse, some antecedent violation of those rights by her adversary, injurious to herj and all that was pretended by either was to force the other to return to, and abide by, the general law of nations; admitting the aggression, and justifying it by the unprecedented state of things, and by necessity, which knows no law. Thus, between them, the law of nations became a dead letter, a musty code, which was to form no rule in this new mode of warfare ; the constitution of nations became extinct. Both the Berlin decree, and the Spanish adoption are declared to be necessary war measures against England. The decree thus concludes. “ The provisions of the present decree shall be abrogated and null in fact, as soon as the English abide again by the principles of the law of nations.” The Spanish, decree, in speaking of the principles of the Berlin decree, declares them to be “ principles of reprisals to put an end to a desolating war, and to obtain a solid peace, and that their co-operation is sanctioned by the rights of reciprocity.” And in the case of the Acteon, Sir William Scott, 1 Edwards, 255, observes, “ France has fulminated her decrees against the commerce of the whole world, and has compelled this country, defensively, to have resort to measures which, abstractedly and originally, would be unjust in the highest degree.” And, again, in the case of the Fox, .314. “ The orders in council are retaliatory orders; they are so declared in their own language, and in the uniform language of the government, which has established them. I have no hesitation in saying that they would cease to be just, if they ceased to be retaliatory, and they would cease to be retaliatory from the moment the enemy retracts in a sincere manner those measures of his which they were intended to retaliate. Their establishment was doubtless a great and signal departure from the ordinary administration, of justice in the ordinary state of the exercise of. public hostility, but was justified by the extraordinary deviation from the common exercise of hostility in the conduct of the enemy*’7 All these extraordinary decrees and orders in council, are thus declared by France, and by Spain, and by England, to aggressions 0f a hostile nature, public hostilities, and so far as they operate on neutrals, are contrary to the law of nations ; and as they affect the interest of the United States,. are so declared by our own government, affording a just ground for war, and in fact producing war. The Berlin decree, by the order of Napoleon, was communicated to his allies, the kings of Spain, Naples, Holland, and Etruria. His communication was-equal to a mandate, a command to adopt this decree : thus identifying the French empire and the nations attached to the political system of France. I cannot see in these decrees a prohibition of trade in British manufactures, as a mere municipal, territorial regulation, a colonial system of exclusion ; but I do discern, in every feature, member and limb, acts of declared public hostility, as means to put an end to a desolating war, and produce a solid peace. I search not for concealed motives, when I find open and avowed declarations.
    This agreement, like all others, is to be construed according to the intention of the parties, and the subject matter of the contract. This clause was first introduced into policies, as has been stated, in 1788, long before this new and unprecedented state of things, which the wisest man could not have foreseen. It could not be the object of the most cautious insurer to guard against the most improbable of all ■human events. The indemnity extends to every seizure and ■detention and loss occasioned by belligerent measures, (and not authorised by the general law of nations,) which this is. The exception excludes from indemnity, all losses, &c. occasioned by any illicit or prohibited trade, under any municipal territorial regulation ; which this is not. I cannot subscribe to the opinion, that the Aranjuez decree has a double aspect, and may be viewed either as a belligerent measure or a domestic regulation; for it declares what it is, in its own language,—á retaliatory war measure ; a reprisal on the enemy ; a co-operation with the head of a confederacy against •that enemy. Nor can the place of exercise of this act of .public hostility change its nature, or give validity to that which was void ab initio, so far as respected neutrals ; there could not be, if I may use the expression, the constitutional exerelse of an unconstitutional power; but the whole article in the decree which gives rise to the present controversy, whatever may be said of other parts of it, is' against the law of nations, as it made goods of British manufacture, prize, every where and in the possession of every body; on the sea and on the land. - -
    I have reflected on this subject with great anxiety; it is said to be of the first impression, and it certainly is of the first importance. I give my opinion with unaffected diffidence, increased by the consideration, that it is the first case, which, sitting alone, I am called on to decide. My consolation is, that no party can be injured if I have fallen into error, as this cause will receive the final decision of a full Court in Bank, and if there be error, it will be there rectified, and justice done to the parties. It is for this purpose, I have met the question fully and fairly, and decided it according to my best judgment.
    The defendants contend, that the seizure and condemnation were not solely founded ,on the Berlin and Aranjuez decrees ; but on the general colonial system of restriction, or some other Spanish ordinance. The facts stated in the sentence are not now conclusive evidence in this state, blit they are prima facie evidence to stand for proof till the contrary appears, casting the burthen of proof on those who allege, their falsehood. The legal presumption is in their favour, but this, like all other presumptions, may be destroyed by direct evidence or by an accumulation of circumstances tending to shew a state of things totally inconsistent with the facts stated. It is contended by the plaintiffs, that there is no Spanish decree other than that of the 19th February, 1807, excluding goods of British manufacture under penalty of confiscation. They say as far as the non-existence of any- alleged fact can be proved, they have proved it, and they rely on the depositions of five witnesses. The testimony has been so often stated by the counsel on both sides, as to render the repetition by me useless. The letter of the governor of St. Thomas is said also to afford strong evidence. The letter states^ that Faudel & Stackman had always conformed to the regulations enacted in those ports, and had paid considerable sums into the coffers of his catholic majesty, in order that their trade and commerce might thereafter be continued without interruption, and that they had, as usual, sent out the schooner Antoinette, and that she was seized undej the pretence, that there were English manufactures on board, prohibited by the regulation of Madrid,, of which regulation nobody in g0vernment had the slightest intimation.
    To prove the existence of such regulation, Mr. Connel was examined on the part of the defendants. His testimony has been already stated. It certainly would have been satisfactory to have found inquiries made for these Spanish orders, and if they could have been produced, to have had them in evidence ; if not, some account should be given of their date and extent. To afford an opportunity for this purpose, was one of the reasons for granting the new trial, and though nearly two years have elapsed since this intimation was given by the Court, no step appears to have been taken on the one part or the other. In this both have been deficient. The defendants, if such royal orders had existed, could have procured authentic copies of them ; at least have examined witnesses to prove their existence and contents. The plaintiffs could have examined witnesses, if not at Laguira or Porto Cabello, at which places they say it was impracticable, owing to the distracted state of the country, witnesses in Old Spain whose situation gave them an opportunity of examining the Spanish records. If such royal orders exist it was a fact capable of demonstration, and as their existence had been called in question, and witnesses examined, who had some opportunities of knowledge residing within three days’ sail of the place where they must have been promulgated, and as the official letter of the governor of St. Thomas, complaining of these seizures, questioned in polite terms the existence of such royal order, I cannot account for the inattention on the part of the defendants in procuring positive proof of some kind to prove their existence. The testimony of Mr. Connel establishes nothing to this effect. There is a due respect to be paid by you to the sentence so far as it states a royal order or orders on which the decree is founded. The testimony on the part of the plaintiffs, accompanied with the total absence of positive proof of any royal order except that of Aren juez, more especially as they were warned of the propriety if not necessity of producing -on another trial, some other evidence than the sentence itself, are matters which must be left to you to weigh and consider as opposed to the facts stated in the decree. It is your peculiar province to determine on the existence of such royal order. The sentence, however, is to stand for the proof of the fact, unless its credit is impaired or destroyed by the evidence produced on the part of the plaintiffs, and by the defendants not producinsr any evidence corroborative of this, so capable as it is o * * of proof. With stating to you the concluding observations of governor Scholton in his letter to the captain general, I will leave the fact for your decision; it is this:—“ You will permit me to remark, that the governors of the French colonies have never until now confiscated neutral goods consisting of English manufacture, although the proclamation of France preceded that of Spain by several months.” It is evident from this, that the Aranjuez decree, was known at St. Thomas, though all profess a total ignorance of any other royal order confiscating British manufactures. If such order prohibiting as illicit all trade to these provinces in goods of English manufacture did not exist, the cause is with the plaintiffs. It is not now pretended to be an order of 25th June, 1806, but one of 25th August; but what is this ? Is it stated in any part of the sentence to be an order prohibiting the importation of British manufactures ? If it did, the case of the defendants would be much stronger than it is; but it is requiring a great deal to call on you to say in the first instance there was a decree of that date; and then to conjecture what it was ; and that it was an order prohibiting all trade in those articles. The condemnation was not as was supposed on the motion for a new trial, on a royal order of the 25th June, expressly prohibiting the importation of British manufactures; this arose from a mistake in the translation of the proceedings of the council of Porto Cabello. The violation of the royal order, if there be such a one, of the 25th June, prohibiting the importation of these goods, is not assigned as the cause of condemnation J but the cause assigned is the Berlin and Aranjuez decrees, and some other royal order or orders, of the contents of which we have no knowledge, and it is assigned in the words of the Berlin decree which we very well know.
    It remains, however, to be considered in another point of view; for what cause was this seizure and condemnation f ■ Not for being concerned in an illicit or prohibited trade, but because the property condemned, was of British manufacture. It is a matter worthy of much consideration, that the cause of condemnation is assigned in the express words of 5th article of the Berlin decree, by which the produce English manufactures is declared to be lawful prize. “ The council did declare, and do declare, as having been lawfully detained, the schooner Antoinette, and that the goods and effects found by the surveyors to be English manufactures, are lawful prize.” Thus conforming neai'ly verbatim with the Berlin decree, on which decree, the imperial decree, among other decrees, this adjudication is founded. If there was a Spanish decree, royal order, or act of the captain general, prohibiting the importation of British manufactures, this is not assigned as the cause of confiscation; and when the sentence declares, in the words of the Napoleon decree, it to be a condemnation, because the goods were of English manufacture, and, therefore, lawful prize, can the Court, can the jury say, that the seizure was for another cause, and under some other decree ? By the act of assembly of 29th March, 1809, the sentence still remains as conclusive evidence of the acts and doings of every foreign prize court. Is it a charge of trading in prohibited goods, entering into a prohibited port, infracting any colonial regulation, or of a design or attempt so to do ? Does the finding of this foreign prize court state such act or design, or any act or attempt in contravention of any territorial municipal regulation, a violation of any trade or navigation act ?
    I cannot find in any subsequent part of these proceedings, any new condemnation for any new cause, not stated in the sentence. They are convicted of being goods of British manufacture, and, therefore, lawful prize.
    The opinion of the auditor, I am desirous of treating with all respect; yet I must confess, I cannot give to it all that full faith and credit we are desired to do; because it partakes more of an invective against the enemy ; a justification of the resort to every expedient to distress him; than a judicial opinion, founded on any Spanish royal order, other than that of Aranjuez; for after some abuse of the Spaniards concerned in this trade, that gentleman thus breaks out, “ but none of these causes will prevent your excellencies from encouraging the persons engaged in cruising, in detaining every vessel bound to ports on this continent, should the cargoes contain any portion of goods manufactured by the tyrants of the sea, and the sacrilegious invaders of the rights of peace as well as of war.” It is true, he states that the captain endeavoured to introduce the goods by surprise, but is the condemnation for this ? It is true, he has stated that they were smugglers, but is the condemnation on this account ? Because, says he, it appears from the proceedings in this case, that there have been published, in North America, in the usual form, by the public papers, the imperial decree and the royal order of the 19th February, 180/, which fact argues against all the captured parties, and convicts them' of smuggling. Strange conclusion from such premises.
    “ Agreed to by the council, and it conforms to the literal meaning thereof, and orders what is there recommended, to be carried into execution.” But does this amount to a new condemnation for a new offence ? Which of these allegations of the auditor is found by the council? Is it because the goods are goods of enemies ; because they were attempted to be introduced by surprise ; because they were smuggled; or because they were of British manufacture ? If we look in that place where it ought to be found, the sentence, we are not left to conjecture, it is because of their being goods of English manufacture.
    ■ They had already been condemned, for this specific reason, by the sentence of 24th June, and the doings of 24th July do not revoke that sentence ; this proceeding of July cannot be considered as a new condemnation for another and for a different offence. The division of the proceeds of sale the same. The recommendation of the auditor as was contended by the defendants’ counsel, on the argument on the admissibility of their papers, was a suspension of the distribution, until the owners of the privateer gave security to abide by the determination of the supreme tribunal of the dmiralty.
    The language of the sentence seems to import any thing else than a condemnation on account of illicit trade. The council convened to determine the legality of the capture of the Danish schooner Antoinette, captured by a privateer, and the goods are declared to be lawful prize,, being of English manufacture, and the distribution is made according to an ordinance for the regulation of privateers; one tenth to the admiralty for the duties, and nine-tenths to the privateer’s men; an allowance most liberal indeed, for a mere seizure, for an offence committed against a municipal regulation, and more resembling the distribution of booty, than the appropriation of a penalty. 1 1 *
    There is abundant evidence to shew, that these ports were not cl°se(f against the Danes, in the decree itself, and in the governor of St. Thomas's letter, stating that Messrs. Faudel Stockman, proprietors of the schooner Antoinette, from the first moment the ports of this province were opened, had hastened to trade and had continued to trade there. It is, therefore, my opinion, that this seizure and condemnation, were not on account of illicit and prohibited trade, but it is to be considered as a maritime capture jure belli; and the sentence is in conformity to the Berlin and Aranjuez decrees, of which I have already declared my opinion.
    The jury found a verdict for the plaintiffs for 12115 dollars ; and the case now came before the Court on a motion by the defendants for a new trial;
    First, because the charge of the Court was against law.
    
      Secondly, because the verdict was against evidence.
    
      Hallo-well, Levy, and Lewis, for the defendants.
    On entering into the present contract of insurance, the defendants excepted all risks arising from capture or seizure in port, for or on account of any illicit or prohibited trade; and to this exception the plaintiffs acceded. When the insurance was made the agents who effected it, either were or ought to have been acquainted with all the edicts, known in the United States, prohibiting trade in British manufactures; and it was their duty to communicate to the company, that the goods they were about to insure were of this description. This, however, was not done. It is confessed, that the goods which were the subject of this insurance were of British manufacture. The decree by which they were condemned proceeded upon this ground ; declaring the trade in such articles to be illicit and prohibited. Whether the prohibition arose out of a decree, a royal order, an order of the governor and captain general of the province, or the general established colonial policy of Spain, is immaterial ; provided the trade in which they were embarked, appear to have been in contravention of the laws of Spain or her provinces.
    
      It has always been the permanent system of Spain to ex-elude all foreigners from the ports of her colonies. They were permitted neither to carry goods there, nor to take them away, unless they were partners in a Spanish house, or the property was shipped in Spanish bottoms. She has, it is true, under peculiar circumstances, and particularly when pressed by a superior naval power, been compelled to depart from this policy, which, nevertheless, has always been her fixed and standing policy. In time of peace, it has always been pursued with unvarying rigour; nor is it in time of war relaxed of course, for it is then necessary for a neutral to procure adicense to trade with the Spanish colonies. 2 Rob. Hist. Amer. 360. 4<Rob. Ady. Rep. appx. 5. 8,9. Livingston v. Maryland Insurance Company.
      
       If therefore we had shewn no particular decree authorising the condemnation of goods of British manufacture imported in neutral bottoms, we should have done enough in shewing the general colonial system adopted by Spain, leaving it to those who allege a relaxation of that system to. shew it. This policy did not derive its existence from the state of things growing out of the French revolution. It existed before the year 1788, when the clause respecting illicit trade was first introduced into policies of Insurance in this city. It follows, that independently of any particular decree or order, the Antoinette, sailing from St. Thomas to Laguira, would have been condemned under the established system of Spain. But it is not necessary to resort to this argument. The decree of condemnation, speaks of an edict of 26th June, 1806, of the Captain General and Intendant of the Caraccas, opening the ports of that province to foreigners, on the express condition, that British manufactures should not be introduced. This edict is referred to, and the condition on which the ports were opened declared in several parts of the auditor’s argument. A power was probably granted by the mother country to the governors of her South American provinces on the first establishment of the colonial system, authorising them to open their ports to foreigners, whenever they deemed it expedient. This power was in the highest degree necessary to enable the ' colonies to obtain supplies before they could be furnished from home. But whatever may have been the authority with which they were formally clothed in relation to this subject, it is notorious that they frequently exercised it. The decree of condemnation refers to four public acts. 1. The decree of- Aranjuez. 2. The decree of Berlin. 3. A royal order of 25th August, 1806. 4. A decree for opening a free trade with the allied powers. Any one of these would have been a sufficient ground of condemnation. When the sentence of the Court passed, not one of these decrees was a year old, except that of 26th June, 1806, which opened the ports to the allied powers, and at the same time prohibited a trade in British goods. Of the existence of this order of 26th June, 1806, on which the sentence of condemnation was founded, the Court ought not to entertain a doubt; for if the averment of its existence in the sentence of a foreign Court be not sufficient proof of that fact, it would be necessary in some instances to go to the most remote parts of the world for original orders, which, in all probability, could not be obtained. It is at least prima facie evidence, and nothing has been adduced to contradict it. No witness has declared, that the trade in English manufactures was lawful; they have merely stated, that at certain times such merchandise was admitted to entry, and sold. One witness has declared, that he was informed the Berlin decree had been proclaimed by beat of drum, and that although goods seized as British manufactures were acquitted at Laguira, they were condemned at Porto Cabello. This merely proves the prevalence of corruption at Laguira; not the non-existence of the prohibitory order. The dispensing with the regulations of trade by custom house officers and others, affords no evidence of their having been abrogated; nor does it at all legalise acts done in contravention of them. Morck v. Abel.
      Church v. Hubbart.
       Whether the order in question was a royal order, or one of the Captain General and Intendant, is a matter of no consequence, because the authority of that officer within the province is equal to that of the king. In Tucker v. Juhelf
      
       the condemnation was under an order of the governor of Antigua, for opening the ports under certain restrictions to American vessels, which was afterwards revoked by the same authority. Nor can the circumstance of the capture having been made by a privateer alter the character of the decree, or afford any argument, that it was not municipal in its nature. It is the custom of all nations to permit such laws to be enforced by any of their armed vessels. Our own non-intercourse law of 1st March, 1809, which was purely municipal,. authorised seizures by any armed vessel of the United States.
    
    Putting out of view the order of 26th June, 1806, the decree of Aranjuez makes this trade illicit within the meaning of the clause in the policy. . The seizure was not on the high seas, but within the jurisdiction of Spain, not more than half a league from Macuto, where by municipal and national law she had a right to make the seizure. By the 5th article of the Berlin decree of 21st November, 1806. “The trade in “ English merchandise is forbidden. All merchandise be- “ longing to England, or coming from its manufactories and “ colonies is declared lawful prize.” This decree was adopted by that of Aranjuez of 19th February, 1809. On principles of national law, Spain had a right to establish thesé regulations, and the Courts of all countries are bound to recognise them. The, question, however, is not whether they were legal or not. The object of the underwriter in introducing the warranty against illicit trade was security from loss on account of prohibitory laws of any kind ; and the terms of the policy render unnecessary all inquiry into the competency of the government to establish such laws.- It has been argued, that the decree of Aranjuez is void, in consequence of being of a belligerent character. Admitting it to be so for some purposes, it does not follow, that it is altogether void. It may be valid in part, and void for the rest. Valid in its infra-territorial, void in its extra-territorial operation. England is almost perpetually at war, and all her decrees are in some respects of a belligerent nature, which, according to the doctrine contended for, would make them void even where they prohibited trade.
    It has been objected that the clause in question was introduced into the Philadelphia policies in the year 1788, before the French revolution, and, therefore, it is argued that it could not have been intended to guard against the violent aggressions on neutral commerce, which followed that event. This would be a very dangerous rule, by which to construe the clause. Though a statute recite a particular mischief, yet if the words be general, they are not to be restrained to that mischief alone. Copeman v.. Gallante.
      
       6 Bac. Ab. 381. Gwill. notes. The loss in this instance arose from an illicit or prohibited trade, and though it may not have been of the ¿escrjption contemplated at the time the clause was introdiiced, yet that clause having been adopted by the parties, and the loss coming within the broad words of it, it ought to receive a liberal construction in favour of the underwriter, for whose benefit it was introduced.. The assured had witnessed the aggressions on neutral commerce from the time of Robespierre, until it was completely trampled under foot, and at the time this policy was underwritten, these aggressions were at their height. Can it then be supposed that the parties to this contract had in view merely what was contemplated nineteen years before, when this clause was first introduced? Impossible. The decree of Aranjuez expressly prohibited trade in British manufactures, and the reasons and grounds of this prohibition, this Court cannot investigate. Speyer v. New York Insurance Company.
      
       We doi not, however, deny that a seizure by a Spanish privateer of avessel having on board English goods, on the high seas, not bound to a Spanish port, would not have been within the warranty ; but where it takes place in port, although under a decree, belligerent in its nature, but prohibiting the trade, the insurer is protected. The 7th article of the Berlin decree, a decree decidedly belligerent, in most of its aspects, declares that no vessel, coming directly from England, or from the English colonies, or having been there since the publication of the decree, shall be received in the ports of France; yet it was declared by the Court, in Mumford v. Fhcenix Insurance Company,
      
       that seizure for trading, or attempting to trade, at Cherbourg, contrary to the Berlin decree, would bring the case within the reach of such a warranty as this. Independently, however, of this clause, the defendants would not have been liable for a loss by illicit trade, unless they had expressly insured against it, or had known at the time of subscribing the policy that the trade was illicit. Richardson v. Marine Insurance Company.
      
       The non-disclosure that the goods were of British manufacture, was an important concealment, which vitiates the policy. It was the duty of the assured to communicate every circumstance which would subject the property to condemnation, whether the condemnation be lawful or unlawful. Sperry v. Delaware Insurance Company.
      
       Kohne v. Insurance Company of North America. 
      
    
    
      Binney and Ingersoll, for the plaintiffs.
    The facts ought now to be considered as pretty well established. Two verdicts ought to settle facts, except in flagrant cases. As to the law, the assured have the opinions of two Judges in their favour, viz. Judge Brackenridge on the former, and Judge Duncan, on the last trial. The opinion of the commercial world is also in their favour. No underwriters have successfully resisted a claim for seizure under the Berlin decree, and yet many millions of dollars have been lost under it.
    It is alleged, now, for the first time, that there was a fraudulent concealment which avoided the-policy. The objection comes too late. The policy was signed in the month of June, 1807, and, until this moment, no complaint has ever been made of an improper concealment. But the plaintiffs were under no obligation to inform the company that the goods were of British manufacture. If there was a municipal regulation prohibiting the introduction of such merchandize, the assured assumed all the losses arising from such a cause; and if there was not, the property was not liable to seizure. With respect to the danger of being seized, right or wrong, under the Aranjuez decree, it is sufficient to say that the plaintiffs knew nothing of its existence when the insurance was made. This was the first capture under the Berlin decree, which was adopted by that of Aranjuez. The defendants, however, knew of this decree, and it was their duty to inquire into the character of the goods, unless they intended to insure them, whatever might be-their character. 1 Marsh. 397. What the insured did not know, they were not bound to communicate. Nothing but a fraudulent concealment would have vitiated the policy. [The Court here declared that it was too late for the defendants to say any thing on the point of concealment.]
    It was referred to the jury, upon the whole evidence, to say whether any local decree against British goods existed. There was evidence of great weight laid before them on both sides, and the Judge who tried the cause is not dissatisge(j ^ venjict. jn sucb a case the Court will not disturb jt.
    The Spanish colonial policy has been repeatedly adverted to, and insisted on, in the course of the opposite argument. This has no connexion with the cause. The policy of Spain has been, in peace, to exclude foreigners ; in war, to admit them. In time of war the presumption is, that the ports were open to British goods brought by neutrals, for Spain wanted supplies, particularly of clothing, which she could not supply herself, and which were almost always furnished by England, who could afford them cheaper than any other nation; and it is notorious, that the United States have carried on commerce with South America to a great extent in merchandise of this kind. No evidence has been exhibited of the existence of a Spanish law, prohibiting English goods, except the record of the council of Porto Cabello, of which the Court had, on the former trial and argument, a very defective translation. The first part of this record sets out the sentence of condemnation of 24th June, 1807; then follows the meeting of the council; their reference of the subject to the auditor, and his opinion, at the conclusion of which he advises the Court to refer the matter to the supreme tribunal of the admiralty, to which they agree. Several decrees, orders, and acts, are referred to in the auditor’s argument j but it is full of ambiguities, and it does not appear precisely on what grounds the condemnation took place. It therefore furnishes no evidence of the existence of any municipal regulation forbidding the trade in which the Antoinette was engaged. What a Court has actually decided is evidence, but the facts they assert as the foundation of their decision are not evidence. Peake’s Ev. 72. Phill. Ev. 248. Maley v. Shat-tuck.
      
      Marine Insurance Company v. Hodgdon. It is admitted, that the assured are bound by the first sentence of the Court at Porto Cabello, but before they can be bound by the second sentence, it is necessary to know what it was. Nothing more was done than to agree to refer the case to the supreme tribunal. Either the first sentence was complete and final, or it was repealed by the subsequent proceedings, and then there was no sentence at all, for those proceedings do not amount to a sentence.
    The decree of 25th August, 1806, was only for the distribution of the prize, viz. one-tenth to the king, and the remainder to the captors. The decree' for opening the trade with the allied powers we know nothing of; the auditor does not explain it. The order of 25th - June, 1806, was the act of the captain general. An act is a temporary order different from a decree ; this, therefore, could not have been the decree for opening the trade to the allied powers mentioned by the auditor,. That no prohibitory decree was known at St. Thomas is proved by five witnesses, and by the letter of the governor of that island to the captain general of Caraccas, which moreover says that these .vessels were seized by virtue of the regulation of Madrid, (probably the Aranjuez decree,) of which they had no notice. The laws of the country must be supposed to be equally known to all the parties to the policy; and where the insured and the underwriter are mutually ignorant of a prohibition of trade, the underwriter must pay the loss. Livingston v. Maryland Insurance Company.
      
    
    From the whole evidence it does not admit of a doubt, that the capture and condemnation were under the Berlin decree, which is not within the clause in the policy. This clause was first introduced into the Philadelphia policies in the year 1788, and from them it was copied into other policies in this country, but is not to be found in those of Europe. At that time the world was at peace, and no anticipation could have been formed of the extraordinary events which occured in 1806, and subsequently. When the owner took upon himself the risks resultingfrom prohibited trade, they were within limits well known to him, but he never intended to assume risks arising from a state of war, and from edicts published under the pretended authority of the .law of nations. The mischief was, that insurers were then held to be liable for loss in consequence of smuggling, at least where both parties were ignorant of the prohibition of trade; for it was held, that the underwriters were bound to know, that the trade was illicit, and if a seizure took place they were bound to pay the loss. i Marsh. 60, 61. 474. 1 Emerig. 212. 
      Living-son v. Maryland Insurance Company 
      
       Buchannan v. Delaware Insurance Company.
      
       It is against the spirit of the contract of insurance, the object of which jg tQ affor¿ protection against almost every description 0f loss, to fritter it away to almost nothing, and throw . . . . the loss upon the assured. 1 he interpretation given to this clause by the opposite counsel, is to exclude almost all the important risks ; for if the underwriters are not responsible for losses springing out of war decrees, they are reponsible only for sea risks, which never could have been the intention of the parties, and is contradicted by the premium, which is double what would have been sufficient to cover sea risks only. Where it has been the intention of the parties, to exclude from the policy, losses by seizure in port, and seizure ui(der the decrees of Napoleon, and his allies, by being turned away by a blockading squadron and the like, a clause has been introduced expressly for that purpose. Duval v. Commercial Insurance Company 
      
       Black v. Marine Insurance Company.
      
    
    The terms of this clause have a special relation to commercial regulations. The parties are merchants, and if the words are ambiguous, they are to be interpreted in a commercial sense. 1 Marsh, 347. Sleght v. Hartshorne 
      
      Coit v. Commercial Insurance Company 
      
       Seizure and detention do not imply capture from belligerent causes. The .plain intention of the warranty was, to protect the underwriters from losses in consequence of municipal commercial regulations. No seizure which is not justifiable by the laws of the port, for regulating foreign commerce, is within this warranty. Church v. Hubbarll
      
       Richardson v. Maine Insurance Company,
      
       A seizure under a decree, claiming to be justifiable by the laws of nations and of war, cannot therefore be within it. No case can be shewn where the underwriter has been held to be discharged from a seizure under the Berlin decree, nor can any dictum even of a judge, be adduced in support of such a position. A blockade of the port of destination, and an embargo, are prohibitions of trade, )’et in such cases the insurers are liable; and the case of Kohne v. Insurance Company of North Americana
      
       proves that they are answerable for a loss by capture by the British, • for trading between the Spanish colonies and the mother-country, which Great Britain had prohibited. The Antwerp cases were subsequent to the Berlin decree, the ships sailed with a full knowledge of it; they were laden with colonial produce, and had been carried into England, or had touched there; they were taken within the Schelde, and the officer declared he took them under the Berlin decree; yet the point now made was never, raised, because it was never supposed that the Berlin decree, was a prohibition of trade within the meaning of this warranty. Bohlen v. Delaware Insurance Company,
      
       Brown v. Phoenix Insurance Company.
      
    
    The ordinance under which the seizure in the present case took place, was against the law of nations, and to such a seizure the warranty has always been held not to extend. There must be both a seizure and an illicit trade. Graham v. Insurance Company of Philadelphia.
      
       Hubbart v. Church, S. C. U. S. There never was a prohibition of British goods prior to the Berlin and Aranjuez decrees. There had always been an open trade between St. Thomas and Laguira, in such articles, which entered at the custom-house without difficulty. When the Antoinette sailed, the trade was supposed to be open. She was not proceeding to Laguira clandestinely, but openly, with a cargo bearing the marks of the British market, and the whole evidence proves, that no decree or order, forbidding commerce in British goods was known. The Antoinette and the Sea Nymph, were the first vessels captured after the adoption of the Berlin decree by that of Aranjuez, and they must have been condemned under that decree. This decree was a war measure, founded confessedly on the law of nations. It was a war against English manufactures, wherever found, and authorised them to be seized as lawful prize. It was a military reprisal, violating the rights of neutrals, though one article of it, viz. that which forbade vessels coming from England to enter the ports of France, was of a municipal nature. The terms used in this decree shew its character. Lawful prize, is either jure belli, or under the law of nations, and never can apply to seizures under revenue laws. All proceedings under this decree, have been in prize courts, treating the seizure as a military reprisal. Prize is where a vessel is seized in war. 1 Emerig. 440. The question of prize, is determined by the law of nations. 2 Thill. Ev 249. The French and British courts, as well as their diplomatic correspondence, and official reports, have uniformly treated the French decrees and British orders in council, as measures of retaliation, unlawful in the abstract; each nation justifying herself by the alleged aggression of the other. The Acteon,
      
       The Fox and others.
      
       1 Edw. Appx. 11. 67. 81. Whether the operation of this decree was within or without the Spanish territory, it was unlawful. Spain could not lawfully capture British goods belonging to neutrals as prize, although she might prohibit their importation, and make them liable to forfeiture. But this decree does not prohibit their importation. Supposing it, however, to be in part municipal, it was not executed under its municipal aspect, but its military one. That the property was taken as enemy’s property, is proved by the whole sentence, and particularly by the distribution which was ordered to be made. It is impossible that the government should have received one-tenth only, if the seizure had been for a breach of the revenue laws. Besides, all governments inflict penalties upon the captains of vessels who introduce prohibited goods, in addition to confiscation, and generally condemn the vessel.. Price v. Bell.
    
    The cases cited on the other side, do not at all contradict the doctrine now contended for. Speyer v. New Tork Insurance Company, was the case of a vessel denied an entry ; and in the case of Mumford v. Phoenix Insurance Company, the condemnation was on the ground of a false declaration of the captain, that his vessel had not been in England. It Was, indeed, said by Kent C. J. “ that seizure for prohibited trade, under the Berlin decree, would have brought the case within the warranty.” But this point did not arise in the cause, and was not decided by the Court.
    
      
      
         7 Cranch, 506,7,
      
    
    
      
       3 Bos & Pull. 37.
      
    
    
      
       1 Johns. Rep. 20.
    
    
      
      
         2 Crunch, 234.
    
    
      
       1 P. Wms. 320.
    
    
      
       3 Johns. Rep. 94.
    
    
      
      
        7 Johns. Rep. 461.
    
    
      
      
        *d) 6 Mass* Rep. 111.
    
    
      
       1 Marsh, 81. (Cond.Ed.) note^
      
    
    
      
      
         6 Binn. 219.
    
    
      
      
        7 Cranch, 548.
    
    
      
       6 Cranch, 219.
    
    
      
      
        7 Crunch, 548.
    
    
      
      
         7 Cranchy 548.
    
    
      
      
         3 Serg. & Sawle, 74.
    
    
      
       10 Johns. Sep. 278.
    
    
      
      
         11 Johns. Sep. 287,
    
    
      
       2 Johns. Sep. 540.
    
    
      
       7 Johns. Sep. 390.
    
    
      
       2 Cvanch, 236.
    
    
      
      
         6 JUass. Sep. 3,14.
    
    
      
       6 Binn. 219.
    
    
      
      5) 4 Binn. 430.
    
    
      
       4 Binn. 445.
    
    
      
      
         ) 1 Marsh, 346, 7. (Cond, Ed.) notes.
      
    
    
      
      
         1 JE da. 255.
    
    
      
      
         Id. 814.
    
    
      
       1 East, 663. 668.
    
   Tilghman C. J.

The insurance in this case, was on, goods, shipped on board the schooner Antoinette, from St. Thomas, to Laguira, “ warranted by the assured, free from anv charge, damage or loss, which may arise, in consequence of the seizure or detention of the property, for, or on account of any illicit or prohibited trade.” The schooner was captured by a Spanish privateer, on the 18th June, 1807, within little more than a league from Laguira. The captors carried her to Porto Cabello. There proceedings were instituted in the court of admiralty, against vessel and cargo, in consequence of which the plaintiffs lost their property.. The nature of these proceedings I shall mention more particularly hereafter. Suffice it to say, at present, that the. reason assigned by the court, in justification of the capture, was, that the goods were of British manufacture. The king of Spain, had, by a royal decree, of the 19th February, 1807, at Aranjuez, adopted the decree of Berlin, made by the emperor of France, on the 21st November, 1806. Whether there was not also, another royal order of the king of Spain, or an order of his Captain General, and Intendant of the province in which Laguira was situated, prohibiting the importation of goods of British manufacture, is matter of doubt, and to afford an opportunity for ascertaining it, a second trial was granted in this cause. The doubt has not been removed by this trial, in which very little new evidence was produced. But, as the jury have again found for the plaintiff, which they ought not to have done, had there been any prohibitory decree or order, except that of Aranjuez,.via must now take for granted, that there was no other. The question then will be, whether the defendants’ warranty extends to the capture in this case; in other words, whether this was a seizure for illicit or prohibited trade, within the meaning of the warranty. That it is within the words of the warranty, is certain, for the decree of Berlin prohibits, in express terms, all trade in British manufactures. By the 5th article of that decree, “ the trade in English merchandise is forbidden. All merchandise, belonging to England, or coming from its manufactories and colonies, is declared good and lawful prize.” But it is not contended, that unlawful prohibitions are within the meaning of this warranty. Neither is it contended, that the decree of Aranjuez was lawful, with regard to neutral nations, as to vessels not bound to Spain or her colonies. No belligerent has a right to say, that neutral nations shall not trade in the manufactures, of his enemy. If such right existed, the commerce of all Europe and America would have been suspended. For there was a time when France prohibited all trade with England or her colonjeg^ an¿ England prohibited all trade with France or her allies or any of their colonies. But the United States never acknowledged the legality of such prohibitions, neither did the underwriters ever assert, that they were protected by the warranty of the assured, against captures made in pursuance of orders which violated the law of nations. In Kohne v. The Insurance Company of North America, a case much contested, property belonging to a citizen of the United States, was captured under the British orders in council, because the voyage was from one of the Spanish colonies in America to old Spain. It was not pretended, that the case fell within the warranty, although the trade was prohibited by England. This warranty was introduced into our policies of insurance, a little before the French revolution, and was no doubt intended, to protect the insurers from loss, in consequence of an attempt to violate the commercial regulations of the country to which the vessel was bound. The decree of Berlin is no commercial regulation, but an extreme belligerent measure, intended to ruin England, by destroying her commerce and manufactures at the expense of the neutral nations. So far as it operated on the ocean, at, a distance from the Spanish coast, the defendant’s counsel give it up. But they say, that Spain had a right to confiscate all British manufactures found within her own territory. That she had a right to prohibit the importation of British manufactures, does not admit of a doubt. But the decree of Berlin, which she adopted, does not prohibit importation, but makes the goods lawful prize, wherever found. The capture, in the present case, was made, not merely because the goods were intended to be brought into the Spanish dominions, but because they were manufactured in England. They happened to be taken Within less than a league of the Spanish coast j but it would have been the same thing, had they been taken in mid-ocean. The decree under which they were taken, made no difference ; they were equally good prize in one place and the other. The case is not so strong, as if the goods had been seized in port. For, even if Spain had a right to confiscate them, when actually within her territory, it does not follow, .that her cruisers had a right to seize them at sea, though near the coast, under a decree which contained no particular prohibition of importation, no regulation concerning the Spanish commerce, but a general declaration, that such goods, wherever found, were lawful prize. The proceedings in the Spanish court of admiralty are of a singular nature. The sentence of the 24th June, 1807, purports to be a decree of condemnation. Yet in the subsequent proceedings, of the 14th July, 1807, it is determined, that the record shall be sent to the supreme tribunal of prizes of the admiralty, by tv ay of consultation, that it may be pleased to decide according to the royal will. So that considering the whole proceedings, the sentence of the 24th June, seems to be of the nature of an interlocutory order, and we have no evidence what the final decree was, or whether there ever was a final decree. But it appears plainly enough, from the report of the auditor, which was adopted by the Court on the 14th July, that there was very great dissatisfaction in the province, at the capture of neutral vessels under the decree of Aranjuez ; and it also appears by the evidence, that in many instances goods of British manufacture had been permitted to be imported, that decree notwithstanding. Considering then, the hostile nature of the Aranjuez decree, in its general character; considering the nature of the warranty in this policy, which was intended to protect the insurers against seizure for breach of the laws of trade ; and considering that these goods were seized at sea, and that they were subject to condemnation, not because they were about to be imported into the Spanish dominion, but because they were of British manufacture, I am of opinion, that the case is not within the warranty.

Another ground for a new trial, was taken by one of the defendant’s counsel; that is to say, that the circumstances of the goods being of British manufacture, ought to have been disclosed to the insurers, because the risk wqs increased by it. That objection comes too late. The cause has been twice tried, without its ever being suggested, that the assured were guilty ®f an improper concealment. This affords a violent presumption, that in the opinion of the insurers, there was nothing to complain of. For aught we know, the information may have been given, and no evidence may have been offered at the trial, because neither party thought it necessary to say any thing on the subject. There would be no end to new trials, if they were granted for defect in matters of fact, not thought material at the time of trial, and which, had they been mentioned, might have been proved. The Court 0Ug}lt now t0 presume, that the defendants have no cause for complaint, in point of concealment. Upon the whole, I am .. .. , , ... . or opinion, that there should not be a new trial.

Gibson J.

I concur. Whether any other decree than that of Aranjuez, prohibiting trade in productions of British manufacture, was in force at Porto Cabello at the time of the capture, was fairly submitted to the jury. It was a question of fact on which the jury have passed, and I am unwilling to disturb the verdict on that ground. The Judge who tried the cause intimated a strong opinion that the Berlin decree, adopted by that of Aranjuez, was the sole foundation of the condemnation. Can the correctness of that opinion be questioned ? What evidence have we of any other decree prohibiting trade in British manufactured goods ? The sentence states the condemnation to have been conformable to the act of the captain general of the Caraccas, the royal order of .the 25th of August, 1806, and the Aranjuez decree of the 23d of February, 180/, including the Berlin decree. The royal order is conceded on all hands to have been a mere distributory regulation ; and in no part of the sentence is it intimated that the act of the captain general is prohibitory of this trade. It is indeed said by the auditor, in his speech before the council, to be of that character: but I take this speech, for all purposes of legal evidence, to be no part of the proceedings of that tribunal. We can only look to the adjudicative part of the sentence, which is evidence of facts clearly and expressly there set out, but of none other. But if the whole of the speech were evidence, to what credit is it entitled ? It was evidently got up on the occasion, to reconcile the people at Porto Cabello to this course of proceeding, (which appears to have been extremely unpopular,) by exciting their passions against England. It is impossible not to perceive that this was the intention. Shall we consider this declamatory harangue, full of sound and fury, as a recital of matter of fact ? The auditor addressed himself to the passions, and with such an object to accomplish, what would he not assert ? On the other hand, when it is considered that up to the time of the Aranjuez decree, goods of British manufacture were freely admitted to entry in the ports of this province, and sold in open market; that the governor of St. Thomas was ignorant of any previous prohibition; that persons acquainted with the course of trade at Laguira, were ignorant of it; the ease w.ith which it'might have been proved if it really had existed ; that the sentence of condemnation was as prize of war, and nearly in the words of that part of the Berlin decree that was applicable to the subject; and the inordinate proportion of the forfeiture allotted to the owners and crew of the privateer, we are precluded from believing that the sentence was grounded on any other decree than that of Berlin. It was the business of the defendant to make out to the satisfaction of the jury that the trade was prohibited within the meaning of the warranty or exception. This was not done, unless the Aranjuez decree be sufficient for that purpose. The existence of the act of the captain general has been shewn, but its purport has not been shewn; and it is too much to call on us to say the council proceeded under a law that we do not know to have been applicable to the matter before it, when another law is shewn within the purview of which the case directly falls.

The condemnation, then, must be taken to have been under the Berlin decree. If that decree be contrary to the law of nations, the plaintiff ought to recover; for it is not sufficient that the trade be prohibited in fact; it must also be legally prohibited. There must be no infraction of neutral rights. A law, the enactment of which transcends the legitimate power of the sovereign who declares it, is merely void, and a seizure, under it, an act of unauthorised violence. Such a law was not within the view of the parties to this policy when the clause in question was introduced. Every soi vereign has an absolute right of legislation, within his own territory, and his laws, operating within, and exclusively applied to the territory, are strictly municipal; although they may be, at the same time, belligerent measures ; and on the latter ground, merely, it is not competent to neutrals to question their validity. Such were our embargo and non-intercourse laws, during our late contest with England. Foreigners entering the territory of á nation subject themselves to all the laws they there find in force, and a want of knowledge of the existence of such laws, or an evident impossibility of being able to obtain it, will not be sufficient to exempt them. But no country has a right, unless with respect to its own subjects, to give to its laws, an extra-territorial effect. On ^ high seas, the subjects of a power are under its legislative controul; but the subjects of another power, never.

With respect to the Berlin decree, I perfectly concur with the opinion expressed in this cause on a former occasion by Mr. Justice Ye ates, that it has a double character} as far as it was intended to operate within the territory of the sovereign declaring- it, it is municipal} but as far as it was intended to operate on the sea, or in countries not subjected to his power by the destruction of the ancient government, and the substitution of one, not only actually but ostensibly under his direction and controul, it violated the law of nations, and was null and void. At the time of the seizure of the schooner, trade in goods of British manufacture, was legally prohibited within Spain and her colonies. I admit also, that for a meditated violation of that prohibition, Spain might legally seize such goods at any indefinite distance from her shores ; and this, as a measure of preventive justice, not extending the operation of her municipal laws beyond her own limits, but one, as I take it, authorised by the law of nations, as being absolutely necessary to protect her municipal regulations from being infringed. But this decree was intended to operate on the land and on the water as far as the French or Spanish power to enforce it should extend. As to its contemplated extra-territorial effect it was void. Then in what aspect did the council of Porto Cabello apply it to the property condemned ? Unquestionably, I think, in that aspect in which it was void. The condemnation was as prize of war. The council made no secret of the light in which it viewed the matter. By the decree in its valid character, the sentence was not warranted. The constituted authorities of Spain. who acted on the subject, complain of no violation of the municipal laws of the country. Although, perhaps, the privateer might have seized, and the council have justly condemned the goods on that ground, they chose to rest on another ; and a seizure or condemnation on illegal grounds is not the less a violation of neutral rights, because the property might have been confiscated under a law perfectly unexceptionable. It is the illegal pretension, that renders the seizure an act of lawless violence. It cannot be said that this was, in the language of the warranty, “ a seizure and detention for and on account of illicit or prohibited trade.” It was a seizure as prize of war. Spain had a right, if she thought proper, to overlook the infraction of her municipal regulations; it was a matter between her and those who violated them. If she please to pardon, it does not lie with the der r 7 # fendant to say she shall not; neither will her having forgiven an injury justify her in inflicting another. No loss has been sustained in consequence of the infraction of the municipal laws of Spain. Spain by her tribunals has said so ; and the defendant will not be permitted to allege the contrary.

But were this decree valid in all its bearings, or even were this a condemnation under it in that character in which it unquestionably is valid, still I am not disposed to think it a law creating such a prohibition, as was within the meaning of the parties to this contract. I lay no stress on this clause having been first inserted during a state of peace, and before the existence of that unnatural state of violence which superseded the settled maritime laws and usages of nations ; I pay much more respect to the opinions of commercial men. Where the meaning of a particular clause is doubtful, the usage that has prevailed on the subject, is the surest and safest interpreter of the intention of the parties. A blockade supported by an adequate force creates an interdiction of trade with the port or place blockaded, the validity of which has never been contested by neutrals ; yet it never was supposed to be a prohibition within this clause. In all the cases of seizure in port by Napoleon under his decrees of this mixed character, I believe no underwriter of a policy containing this clause, has thought it worth his while to urge it as a defence. In fact we have, impliedly, the construction put on it by the several insurance companies of Philadelphia, in the unanimous resolution of their officers to provide specially in subsequent policies against responsibility for seizures in a French port, in consequence of the vessel having visited, or having been carried into a British port. This would' have been unnecessary if this clause had been considered as sufficient to exempt from risk. It may be a difficult matter to lay down a general rule to govern in all cases the construction of the clause in question. I would say the prohibition must arise from a law exclusively municipal, (or in other words intra-territorial,) carrying with it no pretension of unwarrantable power in the sovereign enacting it. But whether it be a standing peace regulation, or a temporary belligerent expedient, will be equally immaterial. The clause was originally introduced to exclude risk arising from a contravention iaws, that' the sovereign power of a nation had a to enact without regard to the motives that led to their enactment; and I do not find, from the. usage of the commercial world, its operation has since been either abridged or enlarged.

The objection to the verdict on the ground of fraudulent concealment comes too late ; it was not insisted on at the trial; and a party shall not be permitted to reserve for a motion of this kind a matter which he does not think proper to submit to the consideration pf the jury. If he has been injured by the verdict in this regard, it is his own fault; we should never have an end of granting new trials if the rule were otherwise. But if the objection were made in' time there is nothing in it. The plaintiffs, when they instructed their agents in Philadelphia to effect insurance, were ignorant of the existence of the Aranjuez decree, and could not foresee, that the peculiar character of the property would enhance the risk; and although that decree was known here when the policy was subscribed, it does not appear the agents knew the goods were of British manufacture. The principal will undoubtedly be affected by the acts of his ageiit; but fraud shall not be imputed, where neither the principal nor agent were separately in possession of all the facts, and which, when taken in- the aggregate only, could vary the risk.

Duncan J.

I will not load this case with a repetition of the opinion on the legal questions delivered by me in the charge to the jury, and shall content myself with a few observations on one branch of the case ; what is the cause assigned by the sentence for condemnation ? or, in other words, is the warranty, (warranted by the assured, free from any charge, damage, or loss occasioned, or which may arise in consequence of the seizure or detention of the property, for or on account of any illicit or prohibited trade,) negatived in the sentence ? for I am confirmed in the opinion, for the reasons I have assigned in the instructions to the jury, that unless this is clearly expressed, or fairly to be drawn from the sentence, that the plaintiffs are entitled to recover; nay, I would go further, for it is .deeply impressed on my mind, that if the sentence purports to be founded on several distinct decrees, different in their nature, one of them of a belligerent aspect, and the other domestic, one respecting a seizure of enemies’ goods on board a friendly ship, or respecting a seizure and confiscation of the goods of a friend. on board the ships of a friend, merely on the ground of their hostile origin, as that they were of British manufacture, and the other the prohibition of the importation of certain goods, and the cause of condemnation is assigned in the very words of the decree for confiscating the goods, because they were of British manufacture, or because they were enemies’ goods, I would hold the condemnation to be on that decreé, the language of which is adopted in the condemnatory clause, and consider the sole ground of the condemnation to be the cause thus assigned; as in this case, because they were of British manufacture. It would likewise appear to' me, that if it were even doubtful, from the obscurity of the sentence, (and from its foundation resting on several decrees, or orders, with different aspects, some of them in nature of seizure jure belli, and others merely regulations of navigation and trade,) on which the condemnation was founded, it would not comport with justice, to pronounce that the condemnation was for the latter cause, and thus by conjecture negative the warranty, and strip the assured of that indemnity for which he has paid.

The principles laid down in Park, 365, have a striking application. 1. If the sentence be so ambiguous and doubtful, that it is difficult to say on what ground the decision turned; or, 2. If the sentence on the face of it, be manifestly against law and justice, or contradictory, the assured shall not be deprived of his indemnity, because, to use the words of Mr. Justice Buller, any detention by particular ordinances, which contravene, or do not form a part of the law of nations, is a risk within the policy.

What is the express ground of condemnation ? Goods of British manufacture. That fact the sentence decided, and if it can be collected from the sentence itself, on what ground the foreign Court decided, that is conclusive. Calvert v. Bovill, 7 T. R. 526. Nor can the premises which led to such conclusion, controul the sentence. In Christie v. Secretan, 8 T. R. 192, the court say, “ We can only look at the ground of decision; that is, because the ship belonged to the ene* mies of the French republic, and cannot look at the previous reasons which are stated; among which were, that the ship was not documented according to the form of treaty j between the United States and France, and, therefore, not an American vessel, as that is not the ground of decision.” If this was not the ground of decision, what was ? If not for this, the cause is doubtful, ambiguous, and obscure, and it cannot be collected reasonably from the whole proceedings, that the condemnation was on account of illicit or prohibited trade. In Bernardi v. Motteux, Doug. 575, a policy on the ship Jane, warranted neutral, the only doubt was, whether the ship was condemned as enemy’s property, or for violating a French arret, by throwing papers overboard. For one or the other of these causes, she was condemned. Yet the plaintiff recovered', because of the obscurity of the sentence, it not being certain, that the ground of condemnation was enemy’s property. And in Pollard v. Bell, 8 T. R. 434, it is observed by Lord Kenyon, “ If contrary to justice the ship had been condemned, simply because she was not a Danish ship, we should have been concluded by the sentence, but as the courts abroad, have endeavoured to give other supports to their judgment which do not warrant it, and have stated as the foundation of their condemnation, one of their own ordinances, which is not binding on other nations, this does not prove that the ship was a neutral ship, and consequently the plaintiff is entitled to recover.”

One reason, at least, if not the only one, is, that the goods were of British manufacture. Compare this with the reason given in Pollard v. Bell. It is stated, says Lord Kenyon, in one of the sentences, that by their own ordinances, all ships are to be confiscated, “ whenever on board there shall be found a supercargo, merchant, commissary, or chief officer, being an enemy.'” But I say, they had no right to bind another nation by said ordinance. It appears, clearly, that the ship was condemned on other grounds; and on the ground that the captain was one of those persons, who, by their own ordinance, they wished to proscribe.

But there, is a rule clearly laid down in Price v. Bell, 1 East, 681, that in the sentence of condemnation, the warranty of the assured must be clearly negatived, not in the express words of the warranty, but-in terms that do not leave the mind in doubt as to the real cause of condemnation; express words or necessary implication. The warranty must be falsified by the sentence itself, or by terms from which it may be fairly inferred. Balton v. Gladstone, 5. East, 160. And so is the law laid down in Church v. Hubbart, 2 Cranch, 232. To fall within the exception, it should appear in the sentence, that the goods were condemned by the government, on account of illicit or prohibited trade.

The legislature of the Union has declared the Berlin and Milan decrees, to be direct and flagrant violations of national law. The Supreme Court of the United States, have so declared them. Williams and others v. Armroyd, 7 Cranch, 432.

If they are so to be considered, and if the Berlin and Aranjuez decrees, are among the causes for condemning these goods; it is settled, nothing can be more established than this ; that if the ground of the decision be a foreign ordinance, manifestly unjust, and contrary to the law of nations, and the insured has only infringed such partial law, this shall not be deemed a breach of his warranty, so as to discharge the indemnity. Park. 363. Pollard v. Bell, 8 T. R. 434. Bird v. Appleton, Id. 563.

These goods were expressly condemned for being of British manufacture, and' the condemnation is in the very words of the Berlin decree. The other decrees and royal orders, are stated in the sentence. ■ The royal order of 25th August, 1806; the decree for opening the ports, as well as the royal order of 19th February, and the imperial decree. The royal order of 25th August, 1806, related only to the distribution of prizes among the captors. What were the precise terms of the decree for opening the ports to the allied powers, we are not informed. When I stated the admission of one of the counsel on the part of the defendants, that the sentence was not founded on any royal order or decree of 25th June, 18Ó6, that admission did not excludé the act ©f the captain general of the Caraccas, for it was contended that the act of the captain general, and the decree for opening the ports were the same, and that this act of the captain general was stated by the auditor general, as one of the causes of condemnation, thus anticipating the sentence of the council, and the opinion, justification, and recommendation of the auditor general, and thus endeavouring to constitute the whole but as one sentence.

In whatever point of view this document is to be considered, whether as authoritative and judicial, a justificatory memorial or decision, or as a recommendation to suspend the execution of a decision already made, until the .royal will should be made known through the high admiralty; if any thing certain can be collected frorti this collection of matters and things ; this mass of discordant materials, by which the auditor general attempts to justify the proceedings of the council of Porto Cabello, edicts, decrees, royal orders, and. acts of the captain general, smuggling enemies’ goods, British manufactures, justification, applause, and invective, delivered in one blaze of rage and vengeance. If he has not enveloped, in still greater obscurity, the sentence itself, it certainly has afforded strong evidence that among the causes producing the condemnation of this property, the Berlin decree and Jiranjuez adoption, were not the least prominent. Nay, leaving it in doubt whether, among these causes, the suspicion of enemies’ property was not mingled. “ This tribunal,” observes the auditor, “ sits in provinces which are censuring the conduct of privateers as violations of the law of neutrality, notwithstanding they are acquainted with the positive data which I have stated, and represent this as a prejudice to commerce, to the treasury, and to agriculture, though they must be well convinced of the contrary by the terms of the royal order of the 19th February, and the imperial decree.” Again, “ It appears, from the proceedings in this case, that there has been published in North America, in the usual form, by the public papers, the imperial decree and royal order of 19th February, which fact argues against all the captured, and convicts them of smuggling.” It will be difficult, on this statement, to maintain that these decrees and royal orders formed no part of the causes of condemnation, when the auditor states that these alone, without other causes, argue against all the captured, and convict them of smuggling. It is not the act of the captain general, but this decree and this order, which convict them. The proceedings in the cause, says the auditor, shew the imperial decree and the royal order, and their publication in North America.

But this is not all, for he recommends to the council “ that the decree should serve for a rule for all prizes of this nature, brought by privateers into this or other ports within their jurisdiction,” and for that purpose, “let a certified copy of the proceedings be sent to all the inferior tribunals, to prevent injuries to the parties Who have recourse to them, and a certified copy of the royal order.” What royal order? Not the act of the captain general; for the act of a captain general, by no liberality of construction, can be converted into a royal order. The royal order was to be the basis of the proceedings .of the inferior tribunals, and the decree in that case was to serve as a rule for all prizes of the same nature. The royal order could not be the decree for opening the ports to the allied powers. Were the proceedings of these inferior tribunals to be governed by the act of the captain general ? No. The rule for their government was to be a royal order, and, as I understand from the whole document, the royal order of 19th February, which was to put down all criticism, as to the conduct of the privateers; that royal order which had been published in North America, and convicted the captured of smuggling. But this document, which was to explain the sentence, gives rise to n'ew conjectures, and involves the causes of condemnation in other ambiguities; for it states, as its justification, “that it appears the enemy does not respect the neutral flag, but captures all vessels leaving our ports, laden with goods, the manufacture of our country, and by a reciprocity founded on the said ordinance, we ought to declare, as good prize, the vessels of friendly powers, having on board enemies’ goods.” And, further, “ the private cruisers, which, in pursuance of this order, which authorises them to examine neutral vessels, and detain and carry them into port, in case of having well founded suspicion, have intercepted on the coast, and within sight of the ports of this province, the two vessels in question, under strong suspicion that almost the whole of the cargo belongs to our enemies.”

Did that royal order form any ground for this condemnation ? But the auditor, on the score of enemies’ goods, further proceeds : “ It is not known to whom the goods belong, except so far as is shewn by those who carry them, and it is very probable that, when they come, sealed with the arms of an enemy, they are part, if not the whole, enemies.”

That these goods were captured by Spanish privateers, is certain; it is certain that they were, at least provisionally, coridemhed ; but that they Were condemned on the ground of illicit or prohibited trade, unless that unlawfulness or prohibition was founded on the imperial decree adopted by Spain, does not appear in this sentence, nor in its justification by the auditor. For all these reasons I am prepared to say that the warranty Df the assured is not negatived by the sentence of condemnation; and that the decrees on which sentence of condemnation has passed, are gross violations of neutral law, and not binding on other nations; and the captures, under pretence of such decrees, are within the risk. That such decrees are void, ab initio, and that, when this seizure and condemnation were made, they were made as prize of war; justified on the ground that the laws of war, and the rights of reprisal, authorised the seizure and condemnation; that they were captured as prize of war, condemned as prize of war, and the booty'distributed among the privateers’ men, as boot taken in war.

The objection, on the ground of concealment, or misrepresentation, if there was colour for it, which I cannot discern, on the most minute examination of the whole evidence, comes too late. If it was now to prevail, there would be no end to the application for new trials..

New trial refused.  