Page:United States Reports, Volume 2.djvu/8

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2
Cases ruled and decreed in the

1781.

The General Queſtion is, "Whether on all the circumſtances "of this caſe, the Ship or Cargo, or both, or any part of the "Cargo, be a prize; and as ſuch ought to be condemned and "conſiſcated?"—The Libellants contend that both Ship and Cargo are prize—if not the Ship, yet the Cargo is prize; if not the whole of the Cargo, yet the principle part of it muſt be condemned.

Different grounds have been taken to ſupport theſe ſeveral poſitions—One ground is taken to affect both Ship and Cargo; other and different grounds to affect the Cargo; other and different grounds to affect the principal part of it.

The argument directed againſt both Ship and Cargo is this: By the Law of Nations, after a capture and occupation for twenty-four hours, the Property captured is transferred to the Captors: But the Ship and Cargo in queſtion were captured and occupied twenty-four hours—therefore the property was transferred to the Captors—and as the Captors were Britiſh ſubjects, the property was Britiſh property, and therefore legally attacked and captured by the American Privateer Ariel.

There is no doubt, but that a capture authorized by the Rights of War transfers the property to the Captor; but the Queſtion is, whether a Capture not authorized by the rights of war can have the legal operation: for, the Claimant ſay, "that the Ship was not originally Britiſh but Dutch and Neutral property, and the Cargo alſo was not originally Britiſh but Neutral Property, in conſequence of Articles of Capitulation, ſtipulated on the conqueſt of Dominica, by the arms of his "moſt Chriſtien Majeſty."

All the authorities cited on caſes of Capture authorized by the rights of war, are where the property captured was the property of an enemy: not an inſtance has been produced where a capture, not authorized by the rights of war, has been held to change the property; but many authorities have been brought to ſhow, that no change is effected by ſuch capture. To ſay that a capture which is out of the ſanction and protection of the rights of war, can nevertheleſs derive a validity from the rights of war, is ſurely a contradiction in terms. The rights of war can only take place among enemies, and therefore a capture can give no right, unleſs the property captured be the property of an enemy. But it is ſtated, that both Ship and Cargo, in the preſent caſ, were originally (that is antecedently to the Britiſh capture) in the predicament of neutral property: No property then was transſerred by the capture, and of conſequence the property in queſtion was not upon the ground it has been conſidered—Britiſh property. "But, it is ſaid, the fact cannot be aſcertained, that the "capture in this caſe was not authorized by the rights of war—"for it depends upon the will of the ſovereign, whether an out-

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