1781.
which has been laid before us, and we have also considered the observations and arguments, which the Counsel upon both sides have made upon it.
On the first argument we were of opinion, that the ship ought to be considered in the predicament of neutral property, and entitled to all the rights and privileges of neutrality, which the Ordinance of Congress ascertained and conferred; we took up this idea from a construction of the articles of capitulation and the British proclamation, which issued immediately on the rupture between Great Britain and the States General, and which protected the ship Resolution for a limited time from capture on her passage from Dominica to Amsterdam: We conceived, that the neutrality of the States General, with regard to the ship, abstractly considered, was not broken by the rupture; the proclamation having controuled the extent of the war, by its exemption of the ship from being a subject of hostility and capture.
Such was our opinion on the first argument: But on consideration of the last argument, we are of a different opinion.
The writers upon the law of nations, speaking of the different kinds of war, distinguish them into perfect and imperfect: A perfect war is that which destroys the national peace and tranquillity, and lays the foundation of every possible act of hostility: The imperfect war is that which does not entirely destroy the public tranquillity, but interrupts it only in some particulars, as in the case of reprisals.
Before Great Britain commenced war with the States General, the States were a neutral nation with regard to the war between Great Britain, France, Spain and America: They had taken no part in the war, and were a common friend to all. This is precisely the legal idea of a neutral nation: It implies two nations at war, and a third in friendship with both. The war which Great Britain commenced with the States General was a perfect war: It destroyed the national peace of the States General, and with it the neutrality of the nation. The States became a party in the general war against Britain: They were no longer a common friend to the belligerent powers; and therefore they ceased to be a neutral nation.
War having thus destroyed the neutrality of the States General, they can never resume the character of a neutral until they are in circumstances to resume the character of a common friend to Great Britain, France, Spain and America: But this character is not to be acquired while war subsists between them and Great Britain. Only a peace, therefore, between Britain and the States, can put the States in a capacity to resume their original character of neutrality. But there can be no peace without the concurrence of both nations: The British could not therefore, by