1781.
property; and it cannot be shook, but when every honest man will say it ought to be shook;—when the right owner appears and proves his property. We have now done with the observations and reasoning, that relate to the first ground of argument: and are of opinion, that if the ship and cargo were originally neutral property, the capture and occupation for 24 hours did not change it into British property and make it prize.
But another ground has taken to affect the cargo: The libellants say, “that the cargo is the produce and growth of Dominica; that the said cargo is the property of British subjects of that Island; that therefore it was not neutral property, but British, and originally prize.”
To this the claimants reply, “that after the declaration of independence, and after the alliance of these States with France, the British Island of Dominica was taken by the arms of his most Christian Majesty; that before the reduction of it, articles of capitulation took place, by which the owners and possessors of estates in the Island were secured in the possession and enjoyment of them, and indulged with carrying on trade and commerce, upon an equal footing with subjects of France; that the said Island since the conquest has been under the protection and government of France; that before the sailing of the ship a passport was obtained from the French Governor, requiring all commanders of French armed vessels, and all commanders of Spanish and American armed vessels, the allies of France, not to impede or obstruct the passage of said ship, the cargo on board being property of capitulants; that the said articles of capitulation bind America as the ally of France; that therefore the cargo, although the property of British subjects, yet it is British property protected from capture, by the articles of capitulation; and that it is in the predicament of neutral property, and therefore was not originally prize.”
Upon these facts and allegations two capital questions arise:
1st. Whether the cargo was British property, protected by the articles of capitulation against French and British captures?
2d Whether America, as the ally of France, is bound by the articles of capitulation?
With regard to the first question it is contended, on a variety of grounds, that this cargo is not protected from capture by the articles of capitulation.
1st. Because the capitulation does not extend to property shipped and on passage at sea.
2d. Because the owners were principally non-residents at the time of capitulation, and therefore, although owning estates at Dominica, cannot be considered as capitulants.
