which have been decided, are cases of the former description, and that there is no case of the latter kind.

I am ready to admit that the assertion is right as to those cases which have been cited at the bar, or which the research of the court has discovered. Though I think that cases of the other kind must have arisen, I confess that they have not occurred to my observation. But supposing the fact to be, that no such case has ever been decided, and that it is now presented, for the first time, to the view of this or any other court, little anxious as I ever am to establish new doctrines upon my single judgment, I should not hesitate to say, if it were necessary, for the first time, that a colourable stoppage in a neutral port, in the course of a meditated voyage from the mother country of one enemy to the colony of another enemy, allied in war, is illegal. A direct trade between two such ports of confederate powers was determined in the Rose, Young, 2 Rob. Rep. 206. and in many other instances, to be equally penal with the direct trade between the parent and colonial ports of the same enemy. Trade between ports of the same enemy, when attempted to be circuitously managed, has been held equally penal with the direct intercourse itself; and I cannot discover that a shade of difference exists, so as to screen the like evasion in the course of a trade between the parent state and the colony of two dif ferent nations, who are our common adversaries.

Having thus stated what I conceive to be the law upon questions of this kind, I proceed to consider whether the facts of this case be such as to bring it within the rule.

I will begin with the oral testimony, which has been derived from the examination on the standing interrogatories of five persons, a larger number than is usually required by the Court; but an excess, which, under all the circumstances of the particular case, and among them the great value of the property, the Court very readily approves.

The evidence of the Spanish passenger, who was bound from Philadelphia to Havanna, I may at once lay out of the case, as he was wholly unacquainted with the transaction or any of the parties to it.

Nor does the master himself furnish much more information. It appears by his own declaration, that he was newly appointed, and but little trusted. His first acquaintance with the vessel was but a few days before her departure from Philadelphia. He knows as little as to the cargo, nor says any thing material in respect of that, except that he believes it was for the most part of foreign produce.

The two next witnesses, whose evidence I shall consider, are the cook and the mariner. Upon these persons something of stigma and discredit was attempted to be thrown, but I must say, the attempt was quite unfounded. Nothing has been advanced either against their competency, or their credibility; they appear, throughout their depositions, to speak without prejudice or affection; their evidence will be found to be very substantially fortified by many facts of the case; and I can see no good reason why they are not to be believed.

By the cook we are told, that the name of the master is Tho mas Phippen; that he has only known him from the beginning of the present voyage; that he was appointed to the command by Captain Mann; he knows not the precise time, but it was at the commencement of the present voyage; that he himself served on board of the said ship in the capacity of cook; that he has known the ship from the 2d of April last, when he was first shipped in her; that he saw her first on that day at Marseilles in France; that the ship was then called the Two Friends, but since her return from Marseilles to Philadelphia, she has been called the Sampson; that she carried from Marseilles a cargo consisting chiefly of wine, with some oil, he believes, brandy, fruits preserved in brandy and other articles; that the cargo was landed at Mr. Foussatt's wharf at Philadelphia, and all put on board again from the same wharf; that he was informed by Mr. Delaunay, that Captain Mann had purchased the ship after her arrival at Philadelphia; that he and Mr. Delaunay were the only persons now on board the ship who came in her from Marseilles.

From the mariner we learn, that he came on board for the first time at Philadelphia, and knew nothing of the former

transactions of the voyage, excepting that he assisted to unload the ship on her arrival at Philadelphia from Marseilles; that her cargo then consisted chiefly of wine, and from the marks on the casks he believes the same cargo (with perhaps some additions) is now on board, having been reshipped in her, and is of the growth and produce either of France or Spain, that the cargo was put on board at Philadelphia, before any of the crew, except the mate, were hired.

The united testimony of these two persons tends to establish the following history of her present transactions: That this ship, then named the Two Friends, commanded by another captain, and with another crew, sailed originally from Marseilles to Philadelphia, with a cargo of wine and other articles, under the charge of the same supercargo who appears here: that arrived at Philadelphia, the cargo was landed at the wharf of the principal owner, Mr. Foussatt: that the former captain and crew were then discharged, new ones appointed, a transfer of the vessel affected to a new set of owners, the same cargo again put on board from the same wharf, (whether after the payment of duties or not, does not appear) and a new voyage to Havanna commenced under the direction of the same supercargo, and with only one man besides, accidentally on board, of the former crew.

To speak of the case thus made out, in the mildest and most favourable terms, it must be admitted to be a case of considerable suspicion. Let us then see how those suspicions are cleared up by the deposition of that person who is most intimately acquainted with the whole transaction. From Mr. Delaunay, the supercargo, who has the best means of knowing, we may expect to receive the fullest information.

The sum of Mr. Delaunay's deposition is this: That he has known the captain only from the beginning of September, (that is the commencement of the present voyage): that he took possession about that time at Philadelphia; that he himself served on board in the capacity of supercargo; that he does not recollect how long he has known the said ship, he first saw her at Philadelphia (from whence of course he would have it

understood that he knew nothing of the vessel before her sailing lately from that port): that the ship has been called the Sampson since September, but he cannot recollect her former name; that her last voyage began at Philadelphia, and was to have ended there; that he knows not the quality of any cargo the said ship has carried previous to the time of her capture, (that is to say, that he knows nothing of the cargo brought from Marseilles): that the ship sailed from Philadelphia as her last clearing port, about the 13th September; that for the present voyage she has been under the direction of the owners, Messrs. Foussatt and Mann, with whom he corresponds; but to the question "under whose care and direction the said ship has been during the preceding voyage," he refused to depose, notwithstanding that he was reminded by the examiner of his having sworn to depose the whole truth. That the cargo was all put on board at Philadelphia in August and September last, (meaning I presume, to infer, that the cargo was put on board there for the first time); that the ship was sold at Philadelphia to her present owners Foussatt and Mann, but he refuses to answer by whom; that the sale took place in September; he presumes there was a bill of sale, but knows nothing about it, or whether any agreement were entered into concerning the purchase further than what appears upon it; that there were on board, as passengers, the Spaniard, whom I first mentioned, as having been examined, and three boys who were going to their father at Havanna; that they all came on board at Philadelphia, here again intending to infer, it must be presumed, that they came on board there for the first time. Such indeed, was the fact as to the Spanish gentleman; but as to the three boys there is distinct evidence by the consular passports, that they had come originally from Marseilles, a fact which it is too evident this gentleman wishes to suppress, and has in so doing completely falsified himself. He goes on to say, that he is confident that the sale to the present owners was truly made, and not for the purpose of covering the real property; rather an inconsistent declaration this from a person who before knew nothing about a bill of sale: and finally he avows that he has given every information in his

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power relative to the present cargo; but he refuses to depose any thing as to preceding ones.

Of this most extraordinary deposition, the decorum of justice restrains me from speaking in the terms which it might deserve; but the energy of justice does not the less require that penal consequences should be fixed to such improper conduct.

The Court is not insensible to the petition which was presented from Mr. Delaunay, to be permitted to be re-examined upon those interrogatories which he before refused to answer; a petition which was instantly rejected, on a reference to the rule of Court, which directs, that where once refusal should take place, the examiner should admonish the witness of the oath taken to speak the whole truth, and notice such refusal upon the examination; and also after previous information of the facts from the examiner, and a sub-assurance from him that the rule had been observed.

This petition and its rejection have been much commented upon, and it has been intimated that the correctness of that refusal may be questioned, together with the whole case, before a higher tribunal. The document itself and the proceeding upon it, being entered on the minutes of the Court, the wish of the claimants will for that purpose, be fully attained. What opinion may be formed upon it in that more enlightened Court, it would be presumptuous in me to conjecture. I will only say for the party himself, valet quantum valere potest. As to the court, whose duty it is to apply its decisions in the first instance, I trust it will at least have the effect of showing that the humble individual who presides here, does not sleep upon his post, and would not hastily permit so fatal a departure from the regular forms of proceeding.

Mr. Delaunay's deposition has been justified by the argument of his counsel, on the ground that he answered to what he himself thought was necessary, and that he was not bound to reply to every question which he did not deem material. But it is the law, I conceive, and not the individual, which is to prescribe what information is or is not necessary. He who under