1781.
pact or treaty. All the parties to it, the citizens of each nation, are morally bound by it: And it is not only admitted, but contended for, by the counsel for the captors, that even neutral nations are under a moral obligation to regard it; and that it is upon this principle the law of nations takes cognizance of and determines upon it.
The papers on board shew a fair commerce, and affirm the cargo to be the property of capitulants, except in the instances mentioned. If they are not capitulants, and yet British subjects, they have violated the capitulation, engaged in a fraudulent and illicit commerce, and are chargeable with a breach of moral obligation. The claimants stand upon two grounds of presumption: first, the presumption which arises from the papers; and then the presumption that no man would do that which he is morally bound not to do. The claimants cannot be affected while these presumptions remain uncontested. How are they to be contested? By what evidence? Certainly the best evidence that the nature of the case will admit, and which the captors have in their power to produce. And if an attested copy of the articles, and of the names subscribed is the best evidence to prove who are capitulants, it is the best to prove who are not capitulants; and, therefore, the captors ought, on their own principles, to produce it; they having it as much in their power to produce such copy as the claimants.
But it is said, “the ship’s papers are defective; the register is not produced; it is withheld, and gives a ground of suspicion.”
We have no doubt, a register was on board at the time of the capture: But we do not think there is any ground for suspicion under the circumstances of the case.
The Resolution was captured by a British privateer. The British captain took possession of the ship’s papers, and captain Waterburgh, the captain of the Resolution, was made prisoner. Afterwards the Resolution was captured by the American privateer, and the American captain took possession of such papers, as the British captain had suffered to remain on board the Resolution. Captain Waterburgh was not brought into port with his ship.
It was the interest of both the British and American captains to withhold the register, if it proved the ship to be the property of subjects of the States General; and neither the British captain nor the American captain have made oath, that the papers produced to the Court are all the papers, which were found on board, and came respectively to their hands and possession.
But it is said, “no credit or faith is to be given to those papers, because replete with contradiction and absurdity. The
