slaves on board is called, indiscriminately, mutiny and insurrection. The parties are supposed to have had in view, the conduct of the slaves, who formed the subject of the insurance, rather than the obedience and subordination of the crew, whose forcible resistance of the authority of the master, would be mutiny, technically speaking. The only difference, therefore, in our opinion, between that case in which the word mutiny is used, and those in which the policy contains the word insurrection, is, that in the first the mutiny is clearly an excepted risk, and in the others is presented the question, much discussed at the bar, whether the expressions amount to a technical warranty, or were only intended to exempt the insurers from the risk of insurrection. On the one hand it has been contended, that it amounts to a warranty, and that the occurring of the insurrection, whether it was the cause of the loss or not, was a breach of warranty, and put an end to the policy; while, on the other hand, it is said, that the only effect of the clause was to throw the risk of loss by insurrection upon the owners, or shippers, leaving all other sea risks to be supported by the underwriters, notwithstanding the happening of the insurrection.

The word warranted is used; but there is often a warranty in form, where there is none in fact; as in the familiar instances of warranted free from average-free from detention and capture, which mean nothing more than that those shall not be among the perils and losses insured against, and for which the underwriter is to be liable. Although these forms of expression (says Phillips) are sometimes spoken of as warranties, it would be absurd to consider them such in their character and construction, since in an insurance, free from average, for instance, it would be adopting the doctrine, that the occurrence of the average loss would render the policy void, and consequently the happening of a loss which is not insured against, deprive the assured of the right to recover for one that is insured against: 1 Ph. Ins. 127. We, therefore, view the terms of the policy as not creating a warranty, but only as exempting the insurers from any liability on account of losses which might be sustained in consequence of a mutiny, or insurrection on board; they assuming all other risks, and particularly restraints, arrests, and detentions by foreign powers, or the emancipation of the slaves by foreign interference. All the cases, then, which have been argued, may be classed in two categories: 1. Those in which the underwriters assume the risk of loss from insurrection; and, 2. Those in which they are exempted from that loss, by the

terms of the policy. The case now under our immediate consideration belongs to the latter class, the defendants not being liable for insurrection, elopement, and natural death. The great question, therefore, upon the merits, which this case, and the others of the same class, present, is, whether the loss of the slaves was caused by the insurrection, or by illegal and unauthorized interference on the part of the authorities of Nassau. The cargo of the Creole consisted of one hundred and thirtyfive slaves, besides some tobacco. She left Richmond on the twenty-fifth of October, and after remaining in Hampton Roads one day, went to sea on the thirty-first. Nothing occurred on board even to create suspicion, until the evening of the seventh of November, when they hove to off the island of Abaco. During the first watch, about half-past nine, the mate, who was on deck with three seamen, was informed that one of the negro men was in that part of the hold where the women were, contrary to the regulations on board. Merritt, one of the agents on board, who was asleep in the cabin, was called up. He lit a lamp, which enabled them to see one of the slaves, by the name of Madison, in the hold where the women were. Merritt asked him if he

knew the consequences of his conduct. He replied that he did, and sprang for the hatchway to get on deck; as he got on the steps to come up, Merritt seized him by the legs and the mate by the shoulders, but he got away from them, and pushed the mate back. At that instant, a pistol was shot, which grazed the back of the mate's head. He flew to the cabin to call all hands, and as they came out from the cabin, whither he was followed by four or five of the slaves, the fight commenced with pistols, a musket, and bowie knives. Hewell, a passenger, was killed; Captain Ensor, badly wounded, sought safety in the main-top, whither the mate had already fled. In a few minutes the mutineers were completely masters of the brig, having subdued the officers and crew. Nineteen of them took charge, and compelled the mate and crew, by constant vigilance and threats, to navigate the brig to the port of Nassau, in New Providence. From the Hole-in-the-Wall, which they made the next morning, they compelled the crew to change the direction of the vessel from her direct course to the mouth of the Mississippi, and to steer for Nassau. The compass was watched to prevent the course being changed, and they were compelled, by threats of instant death, to take the brig into Nassau, where they arrived on the ninth of November, in the morning. It is beyond all question, that the insurrection was completely successful; all resistance

was vain, and no attempt was made by the whites to regain their ascendency. The brig was taken into Nassau by the slaves, in this state of successful revolt.

It is quite unnecessary to dwell upon the particulars of the contest, which took place in the darkness of the night, but was brought about so suddenly, and yet with such evident readiness of preparation at the first signal, as to leave no doubt that the arms used were already loaded, and the plot formed so as to explode on reaching the vicinity of the Bahama islands. The leaders of the revolt appear to have known that they were not far from those islands, and said they wished to go to Abaco. All the arms they had, except one pistol, were thrown overboard at the mouth of the harbor, to prevent their being seen. A black pilot came on board to take them in, and the mate went ashore in the boat of the health officer. This officer was requested to put the mate on shore, and to watch the vessel, and to let them have no communication with the shore until he returned. The officer watched the vessel, and the mate went with the American consul to see the governor; saw him at his house, and stated the case to him. In the mean time it appears that the pilot, a free black, was on board, in free intercourse with the slaves. Thus it appears, and in this all the witnesses concur, that no hopes were entertained of recovering control of the brig and the slaves on board, without assistance from abroad. The insurrection had been entirely successful, the master badly wounded, one passenger killed, and the mate and crew compelled to deviate from the course of the voyage. This was the condition of things on board up to the moment the brig was moored in the port of Nassau. The mutineers appeared to have felt so secure that they threw their arms overboard, relying for their future safety upon their physical superiority, and upon the sympathies of the people of the Bahamas, or the direct interference of the local authorities.

Here it is proper to pause, and inquire what effect has been produced, what change operated by the entrance of the Creole into the waters of a foreign, but friendly power? What new duties and relations have sprung up, as it relates to the officers and crew of the brig, to regulate their intercourse with the public authorities or the people of the island? What treatment had they a right to expect under the law of nations, when thus driven, by an overwhelming calamity, into a British port? The judge of the commercial court, very properly instructed the jury, that the letter of the late secretary of state of the United States,

addressed to Lord Ashburton, on the first of August, 1842, and the resolutions of the senate, unanimously adopted by that body in reference to the case of the Enterprise, contain a true exposition of the law of nations on this subject. Those principles are in substance as follows:

That a ship, or vessel, on the high seas, in time of peace, engaged in a lawful voyage, is under the exclusive jurisdiction of the state to which her flag belongs; as much so, as if constituting a part of its own domain. If such ship or vessel should be forced, by stress of weather, or other unavoidable cause, into the port of a friendly power, she would, under the same laws, lose none of the rights appertaining to her on the high seas; but, on the contrary, she and her cargo, and the persons on board, with their property, and all the rights belonging to their personal relations as established by the laws of the state to which they belong, would be placed under the protection which the laws of nations extend to the unfortunate under such circumstances. Although the jurisdiction of a nation over a vessel belonging to it, while lying in the port of another, is not wholly exclusive, and although for any unlawful acts, committed while thus situated, by her master, crew, or owners, she and they may be answerable to the laws of the place, yet the local law does not supersede the laws of the country to which the vessel belongs, so far as it relates to the rights, duties, and obligations of those on board. Whatever may have been the state of the British law in relation to slavery, it did not operate on board the Creole, while lying in the port of Nassau, and before a voluntary landing of the slaves, to dissolve the relation of master and slave. That relation remained unimpaired. It is only when such slaves come under the exclusive jurisdiction of the British law, within its territorial operation, that the slave becomes free, because such relation is forbidden. To resume, in the language of Mr. Webster, in the letter above referred to: "Vessels of the United States driven by necessity into British ports, and staying there no longer than such necessity exists, violating no law, nor having intent to violate any law, will claim, and there will be claimed for them, protection and security, freedom from molestation, and from all interference with the character or condition of persons or things on board. Such vessels, so driven and so detained by necessity in a friendly port, ought to be regarded as still pursuing their original voyage, and turned out of their direct course only by disaster, or wrongful violence; they ought to receive all assistance necessary

to enable them to resume that direct course; and that interfernce and molestation by the local authorities, where the whole voyage is lawful, both in act and intent, is ground for just and grave complaint."

Lord Ashburton, to whom that letter was addressed, in reference to this very case of the Creole, does not pretend to combat the general principles thus expressed, but proceeds to give that pledge which the treaty-making power deemed equivalent to a treaty stipulation. "In the mean time," says he, "I can engage that instructions shall be given to the governors of her majesty's colonies on the southern borders of the United States, to execute their own laws with careful attention to the wish of their government to maintain good neighborhood, and that there shall be no officious interference with American vessels driven by accident, or by violence, into those ports. The laws and duties of hospitality shall be executed, and these seem neither to require, nor to justify any further inquisition into the state of persons or things on board of vessels so situated, than may be indispensable to enforce the observance of the municipal law of the colony, and the proper regulation of its harbors or waters."

With this view of the laws and comity of nations, we proceed to inquire into the occurrences in the harbor of Nassau, and the conduct of the local authorities in reference to the Creole, premising that we can not yield our assent to the reasoning of the counsel for the defendants, who endeavored to convince us that the slaves on board the Creole became free, de facto, by their successful mutiny, and, de jure, by sailing into a British port. We regard them still as slaves while on board, though in a state of insurrection. They had not ceased to be the property of their masters, although that right of property could not have been asserted in a British court, nor enjoyed within the exclusive influence of the British law. Let us first look at the written correspondence which took place immediately after the arrival of the Creole, between the American consul and the governor of the Bahamas. The official documents, letters, or correspondence which attend most transactions of any public importance, forming a part, indeed, of the res gestæ, afford much more satisfactory evidence of the true character of such transactions, than the statements even of the actors themselves, made afterwards from memory.

As soon as the consul was informed of the disaster on board the Creole, he waited on the governor, with the mate, who re