1818. The Friendschaft. A bill of la to a neutral, but unaccom ter of advice, companied by letter of advice or invoice, let in the neutral claimant to farther proof. It is not pretended, that such a bill would of itself justify an order for restitution; but it certainly gives ding, consign- the person to whom it is addressed, a right to receive ing the goods the goods and lays the foundation for proof, that the panied by an property is in him. It cannot be believed, that, admitinvoice or letting farther proof in the absence of an invoice or letter is sufficient er- of advice, endangers the fair rights of belligerents. idence to lay a foundation for These papers are so easily prepared, that no frauduthe introduc-lent case would be without them. It is not to be credited, that a shipper in London, consigning his own goods to a merchant in Lisbon, with the intention of passing them on a belligerent cruizer as neutral, would omit to furnish a letter of advice and invoice, adapted to the occasion. There might be double papers, but it is not to be imagined, that papers so easily framed, would not be prepared in a case of intended decep tion of farther proof. suspicion or tion. Effect of the It is unquestionably extraordinary, that the same proof of spoli vessel which carries the goods should not also carry ation of papers by the enemy invoices, and letters of advice. But the inference claim of neu- which the counsel for the captors would draw from tral shippers this fact, does not seem to be warranted by it. It conducting bona fida. master on the might induce a suspicion, that papers had been thrown overboard; but in the total absence of evidence, that this fact had occurred, the court would not be justified in coming positively to such a conclusion. Between London and Lisbon, where the voyage is short and the packets regular, the bills of lading and invoices might be sent by regular conveyances. But were it even admitted that a belligerent master carrying a cargo chiefly belligerent, had thrown papers overboard, this fact ought not to preclude a neutral claimant, to whom no fraud is imputable, from exhibiting proof of property. In the case before the court, no attempt was made to disguise any part of the cargo. By far the greater portion of it was confessedly British, and was condemned without a claim. The whole transaction with respect to the cargo, is plain and open; and was, in the opinion of this court, a clear case for farther proof. The farther proof in the claims 108, 109, 141, and 122, consists of affidavits to the proprietary interest of the claimants; of copies of letters, in some instances ordering the goods, and in others advising of their shipment; and of copies of invoices-all properly authenticated. This proof was satisfactory, and the order for restitution made upon it was the necessary consequence of its admission." 8 forme. Toute ne sont pasd'ab- "La preuve de la neutra 1818. The Friendschaft. 1818. The Friendschaft. In the claim to No. 118, made for Joseph Winn, the lite est toujours a la charge du demontrer la fraude et la simu- "Cette preuve ne peut et ne doit resulter que des paers trouves a bord ;(1) toute autre indirecte ne peut etre reque ni pour ni contre, c'est la disposition de l'art. 11. du reglement du 26 Juillet, 1773, et des precedens qui veulent qu'on n'ait egard qu'aux pieces trouvees a bord, et non a celles qui pourroient etre produites apres la prise. "Quant aux irregularitesque peuvent contenir certaine pieces de bord, ce n'est pas a des omissions de forme usitees que les tribunaux doivent s'attacher c'est par l'ensemble des pieces, et surtout par la verite des choses qui en resulte, qu'ils doivent se determiner; l'experience n'a que trop demontre que la plus grande regularite dans les papiers mas quoit souvent la fraude et la simulation, nimia precautio dolus." Bonnemant's Translation of de Habreu, Tom. 1. p. 28. "C'est au capteur a prouver ensuite l'irregularite des pieces a les discuter de la maniere qu'il juge convenable pouren (1) The French prize practice not allowing farther proof, but acquitting or condemning upon the original evidence consisting of the papers found on board and the depositions of the captors and captured. The only exception to this rule is, where the papers have been spoliated by the captors, or lost by shipwreck, and other inevitable accidents. Valin Traite des Prises, ch. 15. n. 7. But the Spanish law admits of farther proof in the case of doubts arising upon the original evidence. De Habreu part 2. ch. 15. Lisbon for Bordeaux, and has since. arrived in London on mercantile business. That he is still a domiciled subject of Portugal, intending to return to Lisbon, where his commercial establishment is maintained, and his business carried on by his clerks until his return. To a copy of this affidavit is annexed that of Duncan M'Andrew, his clerk, made in Lisbon, who verifies all the facts stated in it. This property was also restored by the sentence of the district court, and affirmed in the circuit court. On an appeal being prayed, the circuit court made an order, allowing this claimant to take farther proof to be offered to this court. The proof offered under this order consists of a special affidavit of one of the shippers of sworn copies of letters, ordering the shipment, and of the invoice of the articles shipped. This claim not having been attended, when the sentence of restitution was made, with any suspicious (circumstances, other than the absence of papers which have since been supplied, and which was probably the result solely of inadvertence, this court is of opinion, that the farther proof now offered, ought to be received. It certainly dissipates every doubt respecting the proprietary interest. The only question made upon it respects the neutral character of the claimant. 1818. he Friendschaft. A merchant tral domicil at time of It has been urged, that his native character easily having a neureverts, and that by returning to his native country, the the claimant has become a redintegrated British sub- capture, does not lose it by visiting his na tive country afterwards amino revertendi, and leaving his commercial establishment To be carried on by his clerks in his absence. 1818. The Friendschaft. British subjects resident ject. But his commercial establishment in Lisbon still remains; his mercantile affairs are conducted in his absence by his clerks; he was himself in Lisbon at the time of the capture; he has come to London merely on mercantile business, and intends returning to Lisbon. Under these circumstances, his Portuguese domicil still continues. But it is contended, that the connection between Britain and Portugal retains the British character, and the counsel for the captors has enumerated the priviliges of Englishmen in that country. There privileges are certainly very great; but, in Portugal do without giving them a minute and separate examinanative charac- tion, it may be said, generally, that they do not conter, but acquire not retain their country where they reside. that of the found the British and Portuguese character. They do not identify the two nations with each other, or effect those principles on which, in other cases, a merchant acquires the character of the nation in which he resides and carries on his trade. If a brittish merchant, residing in Portugal, retains his British character when Britain is at war and Portugal at peace, he would also retain that character when Portugal is at war and Britain at peace. This no belligerent could tolerate. Its effect would be to neutralize the whole commerce of Portugal, and give it perfect security. Sentence affirmed. |