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Page:United States Reports, Volume 2.djvu/28

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aa Cuts -ruled and decreed in the

78r. authority of ‘ their proclamation,re{tore back to the Ship

vest Rrfalutiou her original neutrality. The Proclamation could on- ’ ly operate as a prjoteétion of the Ship capture. · We, therefore, lay out of queiiion the ordinance of Congrt/J· with regard to the rights of neutrality ; this cafe is not- within lt. But the Ship Rgjilutim is captured and both Ship and Cargo are · libelled as prize. A queition is made; on whom lies the mu: prvbundi? Wethink onthe captors. There canhenocondem- - nation without proof that the S ip or Cargo is prize; and it can- not be expeéted, thatthe perfons who conteit the capture wil! roduce that proof. . . P Every capture is at the peril of the party. A privateer is not authorized to capture every ve{i`el found on the high {`ea : She is commiilioned tocapture only {`uch {hips as are the property of ` the enemy. Every {hip indeed may, in time of war, be brought to and examined; ut {he is not to he feized and captured, with- out the captors have ju{l: grounds to think {he is the property of an enemy, and not the property of {`ubje&s ot a nation in peace and friendihip, or neutralipy. If fuch {`eizure and capture aremadewithout juit grounds, e parpylinjured is entitled to have an.a&iqn for damages: And ·it is e policy of all nations at war to oblige the captains of privateers to give bond and fe- curity, to enforce a proper condu& while at {`ea, and to prevent {'eizures and captures from being wantonly made. 'I`he {ea is open to all nhtions: No nation has an exclulive pro- perry in the fea. Put the cafe then, that a privateer meets a {hip at {`ea; is it to be inferred, from the mere circurnitance of the · {hip’s being {ound on the high {eas, that {he is the property of an enemy? Surely there is no ground for {`uch an inference: . On this ground a privateer might feize and capture the {hips of its own nation. But the privateer attachs, {`eizes, captures and brings the {hip into port: It is plain here is an at]: of violence; a- {`eizure and capture. The captain therefore muft do two things : At all events he muit {hew juit grounds for the violence, or he will be punilhable at law by an a&ion of damages : and in the next place, before he can obtain condemnation, he muii prove the {hip to be the property of an enemy; for, it can never be enough for condemnation, that he found the {hip at fea. The captors {`ay: “ That in the refent cafe they had not only •¢ juli grounds for {`eizure; but they have alfo jufi grounds for ¢¢ condemnation: For both the {hip and cargo were found in “ the po{i`e{lion of Briiyb fubjeéts, and therefore Brityb pro- •¤ per: ." - . It midi be admitted that po{i'e{`lion is prefumptive evidence of property; becaufe potfeliion is a circumltancc which gene-'_ rally accomtppnies property; and, therefore, the {'eizure and’ capture, in e prefent cafe, was a violence at all events jultiligdg , YQ