1782.
January Sessions, 1782.
Darby, et. al. Appellants, versus The Brig Erstern, et al.
This was an appeal from the Admiralty of the State of Massachusetts-bay, where the Brig and her cargo had been acquitted. The case was argued on the 28th, 29th and 30th of January; and, on the 5th February 1782, the definitive sentence of the court was pronounced by Pace and Griffin, the presiding commissioners, in the following terms:
By The Court.—Upon the evidence in this case, we are of opinion, that the Brig, at the time of her capture, was the property of Imperial subjects at Ostend, and that the cargo was British property, and protected by the capitulation of Dominica.
It is objected, “The Brig is not prize, because neutral property,”
Neutral property cannot be captured: For, while the character of neutrality is preserved, such property is the property of a friend, on which the rights of war cannot attach; but the owners of a ship may violate their neutrality, by taking a decided part with the enemy: In what light is such a ship then to be considered, and what is to be done with her? The law of nations says, that a ship under those circumstances, is in the predicament of enemy’s property, and subject to seizure and confiscation.
But it is said, “the ordinance of Congress ascertains in what cases the rights of neutrality are forfeited; that the present case is not comprehended; and therefore, if not protected by the law of nations, yet it is protected by the ordinance of Congress.”
We are of opinion, that Congress did not mean, by their ordinance, to ascertain in what cases the rights of neutrality should be forfeited, in exclusion of all other cases; for, the instances not mentioned are as flagrant as the cases particularized. The ordinance does not specify the case of a neutral vessel employed in carrying provision to a place which is besieged, and in want of bread: For, altho’ one of the articles says, “You shall permit all neutral vessels freely to navigate on the high seas, or the coasts of America, except such as are employed in carrying contraband goods, or soldiers, to the enemy;” yet another article says, that the term contraband shall be confined to the articles there enumerated, and provision is omitted. Were
