1781.
meant to speak of must have been on the spot. He was one whom the panic had not taken hold of; he was one who with Moreson took the resolution to ship, notwithstanding the alarming rupture between Great Britain and the States General; he was one who was led to ship from a confidence in the King’s Proclamation. We have it in evidence that Captain Waterburgh had letters of recommendation both to Moreson and a Mr. Alexander Henderson. These letters were inclosed to the captain in a letter from Brantlight & Sons. It appears, that on the captain's application to Moreson, nothing could be done without Henderson; Moreson and Henderson were the persons who were consulted, and the first who moved to provide a loading for the ship. It appears from the Bills of Lading, that Henderson was a principal shipper. These circumstances considered, the supposition which was made by the counsel for the claimants, is not altogether without foundation, that Kender Mason, was by mistake inserted for Henderson.
But be the fact as it may, we must determine according to the weight of evidence. The Bills of Lading shew that Kender Mason had no property on board; for every bill mentions the person to whom the property belongs, has a deposition annexed to it, proving the property mentioned to be the property of the persons mentioned, and it appears that there was no other property than what was mentioned in the Bills of Lading, and no where in those bills is the name of Kender Mason to be found. To say then that Kender Mason had property on board, is to say that upwards of twenty persons have committed perjury, for there is that number of Bills of Lading and depositions: A mere assertion in a letter can never be suffered to weigh down such a powerful combination of positive proof on oath.
Having now considered all the grounds, on which it was objected that the cargo was, in this case, not protected by the articles of capitulation—we are of opinion that this cargo was protected by the articles against all French and British captures; and, if America is bound by the articles, protected also from American captures. But the question is, whether the articles of capitulation bind America? Vattel, a celebrated writer on the laws of nations, says, “when two nations make war a common cause, they act as one body, and the war is called a society of war; they are so clearly and intimately connected, that the Jus Postliminii takes place among them, as among fellow subjects.” It appears from the established form of Ransom Bills, that a compact of that nature binds the ally, and it appears by the Passport granted by the French Governor of Dominica, that he considers the capitulation as obligatory upon America; for he requires all commanders of French vessels, and all commanders
