1782.
Can such conduct consist with neutrality? Can there be a more flagrant violation of it? Does it not aim to wrest, from France and the United States, the advantages they acquired by the conquest of Dominica: And does it not evince a fraudulent combination with British subjects, and a palpable partiality?
But, “why shall the rights of neutrality be broke by works of supererogation? If the cargo was British property, unprotected by the capitulation, it was then the property of enemies, and as it did not consist of contraband articles, it was protected from capture, by the ordinance of Congress: The Brig, therefore, needed not to employ fraud and stratagem to give it the garb of neutrality, in order to screen it from capture.”
If the offence, which the Brig has committed, consisted in employing fraud and stratagem, merely to protect property which belonged to an enemy, the objection might, in consequence of the ordinance of Congress, be of some force. But the offence is not of so limited a nature; it is far more extensive, and comprehends a flagrant violation of the rights of neutrality: It results from a fraudulent combination with British subjects, to give weight and energy to the arms of Great Britain, by the re-establishment of a commerce, and its emoluments, which she had lost by the conquest of Dominica.
But, it is objected, “The cargo is not prize, because it is not contraband, and all the other effects and goods, tho’ the property of an enemy, are exempted from capture by the ordinance of Congress.”
If the Erstern had been employed in a fair commerce, such as was consistent with the rights of neutrality, her cargo, tho’ the property of an enemy, could not be prize; because Congress have said, by their ordinance, that the rights of neutrality shall extend protection to such effects and goods of an enemy. But, if the rights of neutrality are violated, Congress have not said, that such a violated neutrality shall give such protection: Nor could they have said so, without confounding all the distinctions between right and wrong.
Upon the whole, we are of opinion, that the decree below be reversed, and that the said Brig and Cargo be condemned, as prize, for the use of the captors, without costs.
| Keane, et. al. Libellants and Appellants, versus | The Ship Gloucester, et. al. Appellees |
This was an appeal from the Admiralty of Pennsylvania, and after argument, Paca and Griffin, the presiding Commissioners, delivered the following sentence.
