1781.
the mere authority of their proclamation, restore back to the Ship Resolution her original neutrality. The Proclamation could only operate as a protection of the Ship from British capture.
We, therefore, lay out of question the ordinance of Congress with regard to the rights of neutrality; this case is not within it. But the Ship Resolution is captured and both Ship and Cargo are libelled as prize. A question is made; on whom lies the onus probandi? We think on the captors. There can be no condemnation without proof that the Ship or Cargo is prize; and it cannot be expected, that the persons who contest the capture will produce that proof.
Every capture is at the peril of the party. A privateer is not authorized to capture every vessel found on the high sea: She is commissioned to capture only such ships as are the property of the enemy. Every ship indeed may, in time of war, be brought to and examined; but she is not to be seized and captured, without the captors have just grounds to think she is the property of an enemy, and not the property of subjects of a nation in peace and friendship, or neutrality. If such seizure and capture are made without just grounds, e party injured is entitled to have an action for damages: And it is the policy of all nations at war to oblige the captains of privateers to give bond and security, to enforce a proper conduct while at sea, and to prevent seizures and captures from being wantonly made.
The sea is open to all nations: No nation has an exclusive property in the sea. Put the case then, that a privateer meets a ship at sea; is it to be inferred, from the mere circumstance of the ship’s being found on the high seas, that she is the property of an enemy? Surely there is no ground for such an inference: On this ground a privateer might seize and capture the ships of its own nation. But the privateer attacks, seizes, captures and brings the ship into port: It is plain here is an act of violence; a seizure and capture. The captain therefore must do two things: At all events he must shew just grounds for the violence, or he will be punishable at law by an action of damages: and in the next place, before he can obtain condemnation, he must prove the ship to be the property of an enemy; for, it can never be enough for condemnation, that he found the ship at sea.
The captors say: “That in the present case they had not only just grounds for seizure; but they have also just grounds for condemnation: For both the ship and cargo were found in the possession of British subjects, and therefore British property.”
It must be admitted that possession is presumptive evidence of property; because possession is a circumstance which generally accompanies property; and, therefore, the seizure and capture, in the present case, was a violence at all events justified