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prize courts must distinguish between misrepresentations due to error of judgment, and corrected as soon as possible by the party who made them, and willful falsehoods detected by the testimony of others, or confessed by the party when detection becomes inevitable. In the first case there may be cause for a critical and perhaps suspicious examination of the claim and the testimony in support of it; but it would be harsh to condemn property clearly proved to be neutral for one false step, in some degree equivocal, which was soon corrected by the party making it.

The Nereide (1815), 9 Cranch, 388, 417.

The use by a belligerent of colorable papers for the purpose of mak ing it appear that a cargo, actually belonging to himself, is the property of a neutral, in order that he may thereby be enabled to trade with the enemy, merely enhances his criminality.

The Rugen (1816), 1 Wheat. 62.

Where enemy's property is fraudulently blended in the same claim with neutral property, the latter is liable to share the fate of the former, and must be condemned.

The St. Nicholas, 1 Wheat. 417.
See note by Wheaton, id. 431.

A cargo, bound from Jamaica to New Orleans, was claimed by G., an alleged neutral, as his exclusive property. The adventure was conducted by M., of New Orleans, who, while admitting that he had expected to have an interest in the cargo, alleged that he was finally disappointed, and that the whole belonged to G. The whole cargo, with a small exception, was documented as the property of L., of Pensacola. G. alleged, however, that the documents were merely colorable, for the purpose of avoiding British capture. There was a total absence of documentary proof to establish the claim of G.; and it was not pretended that any genuine papers were put on board or were in existence. There was no testimony, except that of M.. from the ship's crew that the property belonged to G., and the testimony of M., including the test affidavit, was seriously discredited. Under the circumstances the whole cargo was condemned, without regard to the partial interest which G. might have had, on the ground that, where a party fraudulently claims as his own property belonging to others, he is not entitled to restitution even of that which he may ultimately establish as his own.

The Dos Hermanos (1817), 2 Wheat. 76.

It is the duty of neutrals to put on board of their ships sufficient papers to show the real character of the property; and, if false or

colorable documents are used, the necessity or reasonableness of the excuse ought to be very clear and unequivocal to induce a court of prize to rest satisfied with it.

The Dos Hermanos, 2 Wheat. 76.

A ship and cargo, libeled as prize of war, were claimed by Spanish merchants. It appeared that during the voyage a parcel of papers respecting the cargo was thrown overboard, by the advice of the master and supercargo, on the ground that the ship was at the time chased by a schooner supposed to be a Carthaginian privateer. In the ship's papers, however, which were retained, her Spanish character was distinctly asserted. Mr. Justice Story, delivering the opinion of the court, said that under these circumstances the excuse given for throwing the papers overboard was not easily credited. Nor was it easy to assign a motive for the act. If the ship was Spanish, it was, as to American cruisers, immaterial to whom the property belonged, unless it belonged to an American who had been trading with the enemy, since, by the treaty with Spain of 1795, article 15, free ships made free goods; and there was nothing in the evidence before the court to raise a presumption that any American interest was concerned in the shipment. The utmost, therefore, which the extraordinary conduct in question could justify on the part of the court was "to institute a more rigid scrutiny into the character of the ship itself." But very different," said Mr. Justice Story," would be the conclusion, if the case stood upon the ground of the law of nations, unaffected by the stipulations of a treaty."

The Pizarro (1817), 2 Wheat. 227, 242.

"Concealment, or even spoliation of papers, is not of itself a sufficient ground for condemnation in a prize court. It is, undoubtedly, a very awakening circumstance, calculated to excite the vigilance, and justify the suspicions of the court. But it is a circumstance open to explanation, for it may have arisen from accident, necessity, or superior force; and if the party in the first instance fairly and frankly explains it to the satisfaction of the court, it deprives him of no right to which he is otherwise entitled. If, on the other hand, the spoliation be unexplained, or the explanation appear weak and futile, if the cause labour under heavy suspicion, or there be a vehement presumption of bad faith, or gross prevarication, it is made the ground of a denial of farther proof, and condemnation ensues from defects in the evidence which the party is not permitted to supply.”

Mr. Justice Story, in The Pizarro (1817), 2 Wheat. 227, 241.
See note by Wheaton, id. 242.

See 1 Kent, Comm. 158, Holmes's note, citing the Ella Warley, Blatch. Pr.
Cas. 288, 648, and other cases in the same volume, and the Johanna
Emilie, Spinks's Pr. Cas. 12.

A bill of lading, consigning the goods to a neutral, but unaccompanied by an invoice or letter of advice, is not a sufficient evidence to entitle the claimant to restitution, but affords a ground for the introduction of further proof. The fact of invoices and letters of advice not being found on board may induce a suspicion that papers have been spoliated.

The Friendschaft (1818), 3 Wheat. 14.

Even admitting 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 in question, no attempt was made to disguise any part of the cargo, the greater part of which was confessedly belligerent and was condemned without claim. The whole transaction with respect to the cargo was "plain and open." There was not, however, any direct evidence of throwing papers overboard. It was merely suggested that such was the case, because the various shipments composing the cargo, while accompanied with bills of lading, were not accompanied with invoices and letters of advice; and it was suggested that these papers were thrown overboard. The Friendschaft (1818), 3 Wheat. 14, 48.

Where a neutral shipowner lends his name to cover a fraud with regard to the cargo, his conduct will subject the ship to condemnation. The Fortuna (1818), 3 Wheat. 236.

A vessel was boarded by a crew from a privateer, plundered of her papers and various other things, and then allowed to proceed on her voyage. She was afterwards captured by another belligerent, as was alleged, for lack of the papers of which the first captors had deprived her, and was compelled to pay a ransom. A claim against the first captors for the money so paid was disallowed, the expenditure being considered unnecessary, as the mere absence of papers is not a just ground of condemnation.

The Amiable Nancy (1818), 3 Wheat. 546.

Covering belligerent property by neutral papers is not contrary to the law of nations, and, in neutral courts, does not invalidate contracts made in relation to such property.

De Valengin v. Duffy (1840), 14 Pet. 282.

A vessel was captured by the United States naval squadron, acting in cooperation with the land forces in the taking of Newbern, N. C., in March, 1862. The vessel was at the time totally abandoned, but had lately been occupied by enemy troops and still had on board at the time of her capture an enemy's flag and a heavy arma

ment of artillery; and there was evidence that she had been used in running the blockade and had also been fitted out as a privateer. "Although all these acts were without the sanction of and violently in opposition to the wishes of the claimant [owner], who is personally a loyal citizen, of high character and integrity and a resident merchant of this city, opposed strenuously to the rebellion, and has been deeply injured pecuniarily by the misuse of his property on this occasion and otherwise, yet the acts of his agent, with whom the vessel was left by him, determine the character of the vessel; and the integrity of her real owner can not secure her from the consequences of her illicit employment. The claimant must appeal to his government for relief from the forfeiture."

Betts, J., The Schooner Napoleon (1862), Blatchf. Prize Cas. 296, 298.
An appeal from this decree was taken; but the Secretary of the Treasury
afterwards released seven-eighths of the vessel to the claimant and
the appeal was abandoned.

An enemy's commerce under neutral disguises has no claim to neutral immunity.

The Bermuda, 3 Wall. 514.

Spoliation of papers at the time of capture warrants unfavorable inferences as to the employment, destination, and ownership of the captured vessel.

The Bermuda, 3 Wall. 514.

Neutrals who place their vessels under belligerent control and engage them in belligerent trade, or permit them to be sent with contraband cargoes under cover of false destination to neutral ports, while the real destination is to belligerent ports, impress upon them the character of the belligerent in whose service they are employed, and can not complain if they are seized and condemned as enemy property.

The Hart, 3 Wall. 559.

3. POWER TO Remit ForfeituRES,

§ 1241.

The statute of July 13, 1861, giving the Secretary of the Treasury power to remit penalties, etc., in certain cases did not extend to captures jure belli.

The Gray Jacket, 5 Wall. 342; The Hampton, 5 Wall. 372.

The condemnation of a vessel and cargo in a prize court is not a criminal sentence, and the President can not remit the forfeiture and restore the property, or its proceeds, to the claimant.

Bates, At. Gen., 1863, 10 Op. 452.

The President may lawfully direct the release of prize property in which the captors took no interest, it being in their possession and subject to their control.

Ashton, Act. At. Gen., 1866, 11 Op. 484.

The President has authority to remit forfeitures in cases of prize of war after the vessels have been condemned, but before the prize money has been deposited in the United States Treasury.

Griggs, At. Gen., Jan. 22, 1901, 23 Op. 360, with comments on the opinion of Bates, At. Gen., 10 Op. 452.

VII. EFFECT OF JUDICIAL SENTENCES.

1. CONCLUSIVENESS AS TO PROPERTY.

§ 1242.

The American schooner Sarah was arrested by a French privateer on the high seas in February, 1804, and carried into a port in Cuba, where with her cargo she was sold. The purchaser of the cargo brought it into Charleston, South Carolina, where, in May, 1804, it was libeled in the United States district court for restoration on the ground that it was unlawfully seized. In September, 1806, no sentence of condemnation having been produced, the district court made a decree of restitution. From this decree an appeal was taken to the circuit court, where the appellant produced a sentence of condemnation by the tribunal of first instance of San Domingo, pronounced in July, 1804. This sentence purported to be made conformably to a decree of Captain-General Ferrand of March 1, 1804, relating to vessels contravening the laws and regulations concerning San Domingo. By this decree it was stated that under the laws and regulations then existing the port of San Domingo was the only one in the island open to commerce, and that, in consequence, "all vessels anchored in the bays, harbors, and landing places, on the coast occupied by the rebels; those cleared for the ports in their possession, and coming out with or without a cargo, and, generally, all vessels sailing in the territorial extent of the island (except that from Cape Raphael to Ocoa Bay), found at a distance less than two leagues from the coast," should be "detained by the state vessels and privateers," who should conduct them, if possible, into the port of San Domingo for condemnation. On the production of the sentence of condemnation the circuit court reversed the decree of restitution and dismissed the libel. It was apparently held, Marshall, C. J., delivering the opinion, that as the decree of Captain-General Ferrand authorized the seizure of vessels only when sailing within the territorial extent of the island, less than two leagues from the coast, the seizure and confiscation were made in

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