1781.
the subjects of France, the case would have been a clear one; the capitulation then might have been fairly considered as a compact between the French and British crowns, that a trade should have been carried on by the capitulants, in the extent of the French trades, and consequently that neither crown could interrupt it by captures without a breach of faith: The difficulty arises upon the provision in the article, that the privileges of trade shall be considered upon the conditions of the French trade, which it is said implies, “that as the French trade is exposed to British captures, so must be the trade of the capitulants.”
It is observable, that this article is propounded on the part of the capitulants, and the conditions stipulated must have been in their ideas productive of some benefit and advantage: Was it for the benefit and advantage of the capitulants, that their property so captured should become the property of the captors, and liable to confiscation? Certainly not.
But admit, that this article was propounded on the part of the French general; what beneficial object could he have in stipulating, that this trade should be exposed to British capture? Was it for the interest and advantage of the French crown, that this fresh accession to its commerce should be harrassed and discouraged by British capture? Certainly not.
A construction then so pointedly against the interest of both parties, can never be the right one: The truth is, the condition expressed in the article refers only to the duties, imposts and regulations of commerce.
But if the construction was admissible, that it was for the interest of the British capitulants, that this trade should be liable to such interruption by British captures, what must we think of the opinion of the eminent Lawyers of Great Britain which have been cited? They say, that this trade is protected by the capitulation against British captures: Deciding then against the contended interest of the capitulants, do not their opinions from such a circumstance acquire a great additional force? The British Crown by its proclamation gives incontestible evidence, that the property of the capitulants is not exposed to British capture; for it refers to the capitulation, asserts the protection it gives, and confirms it.
With regard then to the question, “whether the capitulation extends protection to property, when shipped from the Island and afloat at sea?” We are of opinion that it does.
But it is objected, on the second ground of argument, that the cargo was principally the property of residents in Great Britain at the time of the capitulation, and, therefore, although owning estates in the Island, yet not entitled to the benefit of the capitulation.
