1781.
the French Governor the benefit of the capitulation, because his attorney had neglected to subscribe for him. He also proves, that it was the uniform and uninterrupted practice of the Island, for principals non-residents to subscribe by attorney; which would not have been the case, unless such mode had been agreeable to the spirit and intention of the capitulation.
But it is said, “that none could accede to this capitulation but such as were in a capacity to stipulate a neutrality, and that non-residents, in Great Britain, although owning estates in Dominica, could not consistently with their allegiance engage a neutrality of conduct.”
It must be admitted, that where the supreme authority is competent to protect the rights of subjects, a subject cannot divest himself of the obligation of a citizen, and wantonly make a compact with the enemy of his country, stipulating a neutrality of conduct; but certainly he may enter into such an agreement, when it is no longer able to give him protection. In the present case, the British Crown was not able to secure to the owners their estates in Dominica, and therefore they had a natural right to make the best terms they could, for the preservation of their property; for, it is a general maxim of the law of nations, “that although a private compact with an enemy may be prejudicial to a state in some degree, yet if it tends to avoid a greater evil, it shall bind the state, and ought to be considered as a public good.” The owners therefore of the cargo in question, though non-residents at the time of the capitulation and our of the reach of personal injury, yet having estates in the Island, in danger of confiscation by conquest, had a right to avail themselves of the terms proffered by the capitulation, and engage a neutrality of conduct, by acceding to it.
But it is said “that very possibly some of these non-residents are at this day in the military service of Great Britain.”
Our opinion is, that the 9th article, with regard to all absentees, and such as are in the service of Great Britain, only exempted their estates from forfeiture by the rights of conquest. The rights and privileges of trade are considered only by the 13th article. No one can bring himself within the 13th article, that has not signed the capitulation, and every one who signs the capitulation engages a neutrality of conduct. If any one subscribing the capitulation should afterwards go into the service of Great Britain and commit acts of hostility against France and America, he would break his engagement of neutrality, and forfeit all the rights and privileges of trade, and his property captured at sea would become prize.
It is a rational construction to consider neutrality as the great basis of the capitulation. The estates indeed of absentees, and such as were engaged in the service of Great Britain, appear tohave
