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

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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 confiscated?”—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 says, “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 Christian 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 shew, 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 case, were originally (that is antecedently to the British capture) in the predicament of neutral property: No property then was transferred 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 “ rage