ed. If the owner of the goods be thus informed, but the owner of the ship is ignorant, freight is payable. If the voyage be commenced, and neither the ship owner nor the proprietor of the goods on board, have any knowledge or expectation of impediment from the sovereignty of the country to which the ship is destined, the Consolato decides, that in such case freight is not payable; because, as it is observed, it is not the fault of the merchant that the act of sovereignty intervenes to obstruct the voyage. The course of modern authorities is opposed to the rule of the Consolato in regard to the last supposed instance of vis major defeating the object of the voyage. Morgan vs. Ins. Co. North America, 4 Dall. 455. is a case of this description. There, the vessel arrived at Surinam, the place of her destination, and being prohibited from entering, she returned to Philadelphia with the cargo. The court (Tilghman, Ch. J.) considered the freight as earned, and that the obtaining permission to land the cargo was the business of the consignee. So also in Blight vs. Page, cited in 3 Bos. and Pull. 295. where the ship was prevented from taking in a cargo of barley at a port in Russia, in consequence of an unexpected prohibition from the Russian government, a sum in damages, was given to the ship owner against the charterer, equivalent to the stipulated freight. The principles which govern those cases, would go far, I think, to produce a correspondent determination in that which is now under consideration. But I do not think it necessary to declare an opinion, as to that part of the cargo of the Hercules, which was landed by constraint. In expressing a conviction, that there was a sufficient quantity unladen free from exceptions as to freight, I had reference to that portion of the cargo which was landed between the 21st and 25th of Sept. In the protest of the master, made at Naples, 11th June 1810, he states, that he arrived on the 13th Nov. 1809, and was put under quarantine; but that his cargo was freely admitted, and was begun to be discharged on the 21st of that month; that upon the 25th, he was informed, that his ship and cargo were put under sequestration, upon which he refused to discharge any more, but that the officers of the customs obliged him to do it. We may, as to this suit, lay out of the case, all considerations in regard to that portion of the cargo which was discharged by constraint, after the master had received information which excited alarming

apprehensions, and confine our views to that part which was discharged voluntarily. The precise amount is not stated, but from the time employed and the nature of the cargo, I consider it warrantable to presume, that it was sufficient to produce freight adequate to the payment of the wages, if freight were earned. In regard to that portion of the cargo, (however it may be with the residue) in my opinion, freight must be considered as earned: and if by fire, or any other calamity, those goods thus landed, had been destroyed immediately after their landing, it would not have affected the claim to freight. The ship, under such circumstances, must be considered as munere vehendi functus, and as having performed the service implied in the contract for transportation of the goods. The subsequent misfortunes attending the property after a voluntary landing, by the direction of the person intrusted with it, must attach altogether and exclusively to the owner or underwriter, unless the specialty of the contract should involve the ship owner in a participation of the loss.

In regard to any subsequent wages, we must look to the fate of the ship, and consider the effect of the royal decree of confiscation.

It is contended by the counsel for the libellants, that the subsequent restoration, especially as there had been no sale of the ship, constitutes a resemblance, in legal operation, between this case and cases of capture and recapture, or of temporary detention by embargo which do not defeat a claim for wages, unless there be fault on the part of the mariners according to repeated decisions both in our state and national courts.

Though not informed of the grounds of the condemnation, I consider the decree against the ship as precluding any demand for wages beyond its date, excepting on the new contract, made after that event.

The freight supposed to be earned, establishes the claim for wages, at the rate of the original contract on the outward voyage. I award wages to the mariners at the same rate for the interval between the landing of the cargo and the condemnation, in accordance with a reasonable rule adopted by Judge Peters. Adm. Dec. 130. The seamen not having been discharged, and not being at liberty to leave the ship until her condemnation, without consent of the master, are entitled to compensation du

ring that interval; and I consider the wages stipulated in the shipping paper to be, in this case, the proper measure of that compensation.

The contract of 4th July 1810, which was fairly entered into in reasonable conformity to the existing circumstances, must regulate the claim for wages on the homeward voyage.

The subsistence and allowance afforded to the mariners between the condemnation and the new contract, are viewed as a satisfaction of their claims during that interval.

On these principles and considerations, I decree the following sums, with costs, &c. to the libellants, &c.

STORY for the respondent, prayed an appeal, which was allowed. Afterwards in the circuit court, judge Story, having been of counsel for the respondent, gave no opinion, but affirmed the decree pro forma. And an appeal was claimed to the supreme court of the U. S. and allowed; but it was not prosecuted.

DISCUSSIONS ON THE QUESTION,

"Whether Inhabitants of the United States, born there before the Independence, are, on coming to this kingdom, to be considered as natural-born subjects?"

BY A BARRISTER.*

December, 9, 1810.

I thought the affirmative of this question was acknowledged by all lawyers. One authority, it seems to me, is sufficient to support it; I mean, what is laid down in Calvin's case, on the supposition that the crown of Scotland might, possibly, be separated from that of England: upon which point the judges resolved, "That all those who were born under one natural obedience, while the realms were united under one sovereign, should remain natural-born subjects, and no aliens; for that naturalization, due and vested by birthright, cannot, by any separation of the crowns afterwards, be taken away; nor he that was by judgment of law a natural subject at the time of his birth, become an alien by such matter, ex post facto, and, in that case, upon such an accident, our post natus may be ad fidem utriusque regis," (7. Rep. 27. b.) or, to apply the words to the present case, our ante natus, or American born before the separation, may be ad fidem regis, and also a citizen of the United States.†

[The Barrister here alluded to, is John Reeve, Esq. the author of the History of the English Law, and other works. Ed. L. J.]

The post natus there, that is, one born after the union with Scotland, corresponds with the ante natus here, that is, one born before the separation from America.

Such a plain and explicit authority as this, seems to make it unnecessary to search for any other; however, objections are raised to the claim of such persons, to be considered as Britishborn subjects.

1st. It is objected that, admitting the common law to be as laid down in the above resolution, there are circumstances in the American revolution, that distinguish it from all other changes of sovereignty. The island of Jamaica, say they, may be ceded by the king, and this being done without the consent of the inhabitants, there is no reason why they should lose their birthright of British subjects; but the Americans, a whole people in arms, claimed to be released from the English government, and the king, at the peace, consented to give up his authority: how can such a people be afterwards considered as British subjects!

2dly. It is objected that there are certain statutes, and public acts, which stand in the way of the abovementioned common law principle taking effect.

3dly. It is even objected by some, that no principle of the common law can support so unwarrantable an anomaly, as that the same persons should belong to two states, and that admitting them to levy war against the king in the character of American subjects, without being deemed traitors, and then allowing them to come into this kingdom in the character of British subjects, is an inconsistency, which, they think, cannot be countenanced by the law of England.

To the first of these objections, it may be answered, that the peace which put an end to the American war, ought to be considered as putting an end to all the consequences that might be imputed to the Americans, by reason of their rebellion; and, indeed, there is in the definitive treaty, article 6, an express provision, that no person should, on account of the war, suffer any future loss or damage, either in his person, liberty, or property.

Further, we should inquire, what the Americans could be supposed to relinquish by making war, and what was the result of the king making peace? The Americans could not mean to renounce the privileges of British subjects; because they rebelled and made war, in order to get something which they had not, and not to surrender what they possessed: it was to release themselves from their allegiance; but no man can throw off his allegiance at his own option, as must be admitted by every one.