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the greater reason to expect, as she has publickly invited the belligerent powers to accede thereto.

For the further execution of your trust, you will conform, as far as possible, to the following instructions:

4. You are to manifest on all proper occasions the high respect which Congress entertain for her Imperial Majesty; for the lustre of her character, and the liberality of her sentiments and her views; and particularly you are, in the strongest terms, to testify our approbation of the measures which her Imperial Majesty has suggested and matured for the protection of commerce against the arbitrary violations of the British Court. You will present the act of Congress herewith transmitted, declaring our assent to her imperial majesty's regulations on this subject, and use every means which can be devised to obtain the consent and influence of that Court that these United States shall be formally invited, or admitted, to accede as principals and as an independent nation to the said convention. In that event, you are authorized to subscribe the treaty or convention for the protection of commerce in behalf of these United States, either with her Imperial Majesty conjunctly with the other neutral powers, or if that shall be inadmissible, separately with her Imperial Majesty, or any one of those powers.

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Opinion of the Federal Court of Appeals in the Case of" Darby et al. v. The Brig Erstern et al.", January, 17821

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 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.

12 Dallas 34-36.

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."

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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.1 Were Congress asked, whether they meant 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

1 See Document 15, p. 149.

United States, possibly such reasoning might be conclusive: But we are of the 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 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 plan 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 combi

nation 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.

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The Peace Commissioners (J. Adams, Franklin, Jay, Laurens) to the British Peace Commissioner (Hartley), Submitting Propositions for the Definitive Treaty1

June 1, 1783.

4thly. If war should hereafter arise between Great Britain and the United States, which God forbid, the merchants of either country then residing in the other shall be allowed to remain nine months to collect their debts and settle their affairs and may depart freely, carrying off all their effects without molestation or hindrance. And all fishermen, all cultivators of the earth, and all artisans and manufacturers unarmed and inhabiting unfortified towns, villages, or places, who labor for the common subsistence and benefit of mankind, and peaceably follow their respective employments, shall be allowed to continue the same and shall not be molested by the armed force of the enemy in whose power, by the events of war, they may happen to fall; but if anything is necessary to be taken from them for the use of such armed force, the same shall be paid for at a reasonable price. And all merchants or traders with their unarmed vessels employed in commerce, exchanging the products of different places, and thereby rendering the necessaries, conveniences, and comforts of human life more easy to obtain, and more general, shall be allowed to pass freely

1 Wharton, The Revolutionary Diplomatic Correspondence, vol. vI, pp. 470

unmolested. And neither of the powers parties to this treaty shall grant or issue any commission to any private armed vessels, empowering them to take or destroy such trading ships or interrupt such commerce.

5thly. And in case either of the contracting parties shall happen to be engaged in war with any other nation, it is further agreed, in order to prevent all the difficulties and misunderstandings that usually arise respecting the merchandise heretofore called contraband, such as arms, ammunition, and military stores of all kinds, that no such articles carrying by the ships or subjects of one of the parties to the enemies of the other shall on any account be deemed contraband, so as to induce confiscation and a loss of property to individuals. Nevertheless, it shall be lawful to stop such ships and detain them for such length of time as the captors may think necessary to prevent the inconveniences or damage that might ensue from their proceeding on their voyage, paying, however, a reasonable compensasation for the loss such arrest shall occasion to the proprietors. And it shall further be allowed to use, in the service of the captors, the whole or any part of the military stores so detained, paying to the owners the full value of the same.

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Resolution of the Continental Congress Regarding the Rights of Neutral Nations, June 12, 17831

It appears from the report of the Secretary for Foreign Affairs, that no powers are at present vested in any person in Europe to agree to any treaty similar to that entered into by Russia, Sweden, Denmark and the United Provinces of the Netherlands, after the peace shall be concluded. The resolution of the 5th of October, 1780, empowers the ministers of these states, if invited thereto, to accede to such regulations conformable to the spirit of the declaration of the Empress of Russia as may be agreed upon by the Congress expected to assemble in pursuance of the invitation of her Imperial Majesty. Our ministers received no invitation; and special powers were afterwards given to Mr. Dana, which in their nature superseded that resolution. Mr. Dana was, by his commission and instructions, empowered to sign the treaty or convention for the protection of commerce in behalf of the United States, either with her Imperial Majesty in conjunction with the other neutral powers, or, if that

1Journals of the Continental Congress, vol. xxiv, pp. 393-394.

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