suffer. So far we have thought proper to animadvert on the new evidence, and the argument and observations of the counsel upon it. And, altho' on a decree of acquittal, almost the whole cargo will go into the hands of those who are not the friends of America, notwithstanding they have stipulated a neutrality during the war; yet, as they are entitled to it, by the articles of capitulation which bind America, the law of nations operating on those articles as a solemn compact, commands that such a decree must be given. We hope we feel just impressions of the wrongs and cruelties of Great Britain; but public faith must be maintained; the honor and dignity of the United States preserved, and the law of nations dispassionately and righteously administered.

We therefore adjudge and decree, that the order of this court, suspending the original decree, be discharged, and the said original decree, be affirmed in all its parts, except with regard to such parts of the cargo, as were shipt by Morson & Co., Morson, Vance & Co., and Lovell, Morson & Co., which parts of the cargo we do adjudge and decree to be condemned, for the use of the captors, chargeable, nevertheless, with the stipulated freight.

Darby et al. Appellants, v. The Brig Erstern et al.

(2 Dallas, 34) 1782.

THIS was an appeal from the Admiralty of the State of Massachusettsbay, 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 PACA 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, unprotected 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 | Congress asked, whether they meant p. 35 to protect from capture, a neutral ship loaded with provision, and destined for York and Gloucester, when besieged by the armies of the United States and France, no one could possibly doubt what their answer would be. The plain and obvious construction of the ordinance is, that while neutral vessels observe the rights of neutrality, they shall not be interrupted by American captures: Congress meant to pay a regard to the rights, and not to the violations of neutrality.

But, it is objected,' that in this case, if the Brig has violated the rights of neutrality, it is because she intended a violation of the capitulation of Dominica; that the capitulation of Dominica can only be considered as a local law, of which there can be no breach, until the offending ship comes within the civil jurisdiction of the island; that the Brig was captured before the arrival within the jurisdiction of Dominica; and that therefore she was captured, before there was any violation of the rights of neutrality.'

If nothing could be objected against the Brig, but an intentional violation of the capitulation, abstractedly from the consequences, with regard to the war between Great Britain, France, and the United States, possibly such reasoning might be conclusive: But we are of opinion, that the Brig has done more than a mere intentional offence, with regard to the capitulation.

The subjects of a neutral nation, cannot consistently with neutrality, combine with British subjects, to wrest out of the hands of the United States and of France, the advantages they have acquired over Great Britain by the rights of war; for, this would be taking a decided part with the enemy.

On the conquest of Dominica a capitulation took place, and by that capitulation, a commercial intercourse between Great Britain and that Island was prohibited: The object was to weaken the power of Great

p. 36

Britain, by lessening her naval and commercial resources. But what has been the conduct of the Brig and the Imperial subjects her owners ? Kender Mason, a British subject, establishes a plant at Ostend, by which the commerce of Great Britain with Dominica is to be kept up and preserved, thro' the intervention of that port. On this plan Liebert, Beas, Dardine & Co. Imperial subjects, purchase at London the Brig Erstern: Kender Mason puts on board a cargo of British merchandize, the property of British subjects: The Brig clears out from London, ostensibly for Ostend, and there arrives: Liebert, Beas, Dardine & Co. supply her with false and colourable papers, assume upon themselves the ownership of the cargo, and dress it up in the garb of neutrality, to screen it from detention and capture: The Brig then clears out for Dominica, and sails for that Island with the cargo she took on board at London. [

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, v. The Brig
Gloucester et al., Appellees.

(2 Dallas 36) 1782.

THIS was an appeal from the Admiralty of Pennsylvania, and after argument, PACA and GRIFFIN, the presiding Commissioners, delivered the following sentence.

BY THE COURT :-Two objections are made to the decree below: The first objection is, that a libel does not lie by the crew of a privateer, for their respective proportions of a prize.

The second objection is, that the libellants, in this case, are not part of the privateer's crew, nor captors, entitled to a proportion of the prize stated in their libel.

With regard to the first objection, we are of opinion, that a libel does lie, and that it is the proper and regular mode of redress: For, the commission of a privateer, according to the form established by Congress, extends not only to the captain, but also to the ship and crew; they are captors, as well as the captain, and their rights to the thing captured, is equally founded on the commission. The Ship is figuratively considered as an agent, and represents the owners. Articles of agreement generally direct the distribution; but if no articles are executed, the Admiralty Courts will make distribution, in proportion to the number, interest and merits of the captors.

But, it is said, 'the Admiralty Court, in this case, had exercised all its jurisdiction and power; that a libel was filed by the captain, and a decree passed for condemnation; that the prize has been sold, and the money lodged in the hands of the Marshal; that the Marshal must make distribution according to the list of the crew, which the captain shall deliver; and if the captain makes a false list, the party injured has no other remedy than by an action at law.'

The original libel, we find, was filed by the captain, in behalf of himself and crew, and the decree adjudges the prize to the captors. The Marshal has sold the prize, and the money lies in his hands; on application, he refuses to pay the libellants; and the question is, what is the mode of redress?

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We are of opinion that the libellants had a double remedy: They had an action at law, for money had and received to their use; and they were entitled to a supplemental libel, upon which a decree and order might have been obtained, to compel the Marshal to pay the money. Such a libel is nothing more than a form of proceeding, to carry into execution the original decree; and if the Admiralty Courts are competent to give judgment, they must be competent to carry it into execution.

We are also of opinion, that if a Marshal makes distribution, without the orders of the Admiralty Court, he does it at his peril. The list or return of the crew by the captain, is no justification for his payments. He is the officer to carry the decree of the Court into execution, and he must take care that his payments are made according to such decrees; for, on misapplication of the payment, a libel will lie to make him responP. 38 sible. If he would therefore act safely, he ought, before he makes | his payments, to obtain the order and direction of the Court; and the Admiralty Courts ought not to make an order, without previous measures to guard against fraud and imposition, by providing for latent claims.

But on the second ground, it is said, the decree below ought to be reversed; which is, that the libellants are not part of the privateer's crew, nor captors, entitled to the prize stated in their libel.

It is proved, and admitted on all hands, that the libellants were shipt on board the privateer, at Philadelphia; that they were shipt under the articles of agreement, and shipt and received on board, as part of the privateer's crew; that, as part of the privateer's crew, they navigated the privateer down to Chester; that there the captain, without any objection to their skill or ability, ordered them on shore, and obliged them to abandon the privateer, and left them; and that afterwards he, and all the residue of the crew, destroyed the original articles of agreement, and executed a fresh set.

Under the circumstances stated and admitted, we are of opinion, that the libellants are entitled to a full proportion of all prizes which were captured during the cruise, for which the libellants were engaged, and from which they were forcibly excluded.

We have already observed, that the right of the crew to captures is not founded on the articles of agreement; but on the privateer's commission. When the libellants were shipt at Philadelphia, and received on board by the captain as part of the crew, the right under the commission attached. This right they derived from an authority, paramount to the captain, and therefore the captain could not arbitrarily deprive them of it.

But it is said, the captain, only, did the wrong; and therefore he alone should be responsible for it, and not the residue of the crew.

The libellants do not seek a compensation for a wrong; they are not in pursuit of damages for a tort. When they were shipt and received