1781.
We feel the force of the reasoning which has been employed to shew, that the name of Kender Mason was inserted by mistake; but, as Mason, who appears to us to be a partner in three partnerships, and to have been the active person in shipping this part of the cargo, has acknowledged, for himself and company, that Kender Mason was a shipper, and the evidence, upon a careful review of it, leaves an opening to apply that acknowledgment to a concern in the three partnerships, we are led to change the opinion we had entertained on the first argument, with regard to this point, and now think, that this part of the cargo must be condemned as prize; and, not only Mason’s proportion of it, but also the whole interest of the three partnerships: For, the shipping of produce by Mason, who is not a capitulant, is a violation of the capitulation; and as the three partnerships were consenting to it, and neglected their interest with Mason, they are participes criminis, and must equally suffer. So far we have thought proper to animadvert on the new evidence, and the argument and observations of the counsel upon it. And, altho’ on a decree of acquittal, almost the whole cargo will go into the hands of those who are not the friends of America, notwithstanding they have stipulated a neutrality during the war; yet, as they are entitled to it, by the articles of capitulation which bind America, the law of nations operating on those articles as a solemn compact, commands that such a decree must be given. We hope we feel just impressions of the wrongs and cruelties of Great Britain; but public faith must be maintained; the honor and dignity of the United States preserved, and the law of nations dispassionately and righteously administered.
We therefore adjudge and decree, that the order of this court, suspending the original decree, be discharged, and the said original decree, be affirmed in all its parts, except with regard to such parts of the cargo, as were shipt by Morson & Co. Morson, Vance, & Co. and Lovell, Morson & Co. which parts of the cargo we do adjudge and decree to be condemned, for the use of the captors, chargeable, nevertheless, with the stipulated freight.
