into Boston for adjudication. On being libelled in the District Court as prize of war, the consul of his

The London Catholic Majesty filed a claim for the property in Packet. question in favour of Don Jeronimo Merino, a Spanish subject. The District Court condemned the vessel and the whole of the cargo, except these hides, which were restored to the claimant, the Court being satisfied there was not such proof of enemy's property therein, as to authorize a decree of condemnation. For the ship and residue of the cargo no claim was interposed. From this decree, as to the hides, there was an appeal by the captors to the Circuit Court, where the same was reversed. The Court, although it reversed the sentence which had been pronounced below, expressed its entire satisfaction as to the national character and domicil of the claimant, and that the hides had been originally shipped by him; but condemned the property, because, on the order for farther proof, no affidavit had been offered, either of the claimant or his confidential agent, or clerk, of his interest in the cargo at the time of the shipment. It was considered, that the absence of such a document, so universally expected and required by prize tribunals, unavoidably threw a suspicion over the cause, and being wholly unaccounted for, it authorized a belief that there had been a voluntary, if not a studied omission on the claimant's part. At the same term in which the sentence of reversal was pronounced, but not until after such sentence was known, the affidavit of the claimant, which had been received since the last adjournment of the Court, was produced by the Spanish Consul, with a petition


that the decree might be rescinded, for the purpose

of admitting it into the case, or that the same might The London Packet. be so far opened, for the consideration of the Court,

as to make the affidavit of Merino a part of the evidence therein, so as to accompany the other testimony in the appeal to this Court. Upon this application the Circuit Court ordered, that the affidavit should be received by the clerk, and sent up with the other papers de bene esse, subject to the directions of this Court. The affidavit had been taken on an order below for farther proof, but had not been received, as has been stated, when the decree of condemnation was pronounced.“

Mr. Webster and Mr. Pitman, for the captors, argued, that it was a well-settled principle in the Prize Court, that the onus probandi, lies on the claimant. “In the Prize Court,” says Sir Wm. Scott," where special reasons for deception are perpetually occurring, and where the Court exercises a much more unconfined jurisdiction on questions of property than it exercises in its civil forum, proof of property lies generally on the claimant, and he may be called upon to support the prima facie evidence of a good title which is already exhibited." This burden would have rested on the claimant in the present case if the goods in question bad been found on board of a neutral ship; but it is increased by the fact that the property was found on board an enemy's ship, and an enemy's

a Vide S. C. 1 Mason's Rep. 14. Inte, vol. II. 371.
b The Countess of Lauderdale, 4 Rob. 234.


armed ship. The maxim as laid down by Grotius, is : " Res hostium navibus presumuntur esse hostium, The London donec contrarium probetur.A presumption which, Packet. nevertheless, may be destroyed by strong proofs to the contrary. In this case, the property was not only found on board an enemy's armed ship, but was unaccompanied by the documentary evidence required to prove its neutrality. No papers were found at the time of capture relating to the cargo, except the bills of lading; and all the letters and invoices were sunk by the order of the master of the London Packet, in the letter bag, as sworn by two of the crew upon their examination on the standing interrogatories. The spoliation of papers, is, therefore, superadded to the fact of the property being found on board a ship of the enemy, destined to an enemy's port; and the claimant is called upon to produce the strongest, and most satisfactory proof to destroy the many presumptions arising from these facts, that, in truth, the property belongs to the enemy. The claimant has had abundant opportunity afforded him to produce this proof. The first order for further proof was made in the District Court the 26th of November, 1813, and the claimant was indulged until nearly the close of the year 1815, in the Courts below, to establish the verity of his claim. Having failed so to do, this Court afforded him further time, and he has had from February, 1816, until this term, a period of four years, to produce plenary proof in

a De Jure Belli ac Pac. b. 3. c. 6. s. 6. Bynk. Q. J. Pub. 1. 1. c. 13. Loccenius, l. 2. c. 4. n. 11.


The London


reference to a claim so much indulged, and surrounded with so many circumstances of suspicion. If the claimant has failed to produce this proof, the presumption is irresistible, that his claim must be false. In such a suspicious case too, something more is to be expected from the claimant himself, than a mere test affidavit,“ which is all the evidence (coming from himself) which the claimant has yet furnished.

Mr. D. B. Ogden and Mr. Winder, contra, admitted the rule of the Prize Court, that property found on board an enemy's vessel is presumed to be enemy's property: but, for this very reason, they insisted, such a vessel would seldom be made the vehicle of enemy's property intended to be covered as neutral. The records of the Court would show that in a great majority of the cases, where attempts have been made to disguise enemy's property, such attempts have been made by lading the goods on board a neutral vessel, in order to avoid that suspicion on which the rule of law is founded. But in this case, the presumption itself can have but little weight; because it appears in evidence that the claimant was compelled, by necessity, to lade his goods on board an enemy's vessel, there being, at that time none but British ships, at Buenos Ayres, destined for Europe, for which market his goods were intended. Some indulgence is due to the subjects of neutral States, who not having sufficient shipping of their own to carry on their trade, are compelled to resort to the navigation of other coun

a The Magnus, 1 Rob. 31.


tries, which may happen to be belligerent. Nor can the circumstance of a spoliation of papers by the The London enemy master have any unfavourable effect upon the Packet. claim of a neutral shipper conducting bona fide. Even the actual resistance of the enemy master will not preclude the neutral shipper from receiving restitution, unless he participates in such resistance, and thus forfeits the privileges of his neutral character. The counsel on both sides also argued upon the facts, with great minuteness and ability.

Mr. Justice Livingston delivered the opinion of Feb. 20th. the Court. In the argument of this cause, the counsel have not confined themselves to the effect which the affidavit of the claimant ought of itself to have upon the decision of it, but have animadverted on all the testimony below. The Court has, therefore, also extended its examination to all the proofs in the cause, and will now pronounce its judgment on them. The captured vessel was confessedly British pro

Presumption perty, as well as a great part of its cargo, and its des- the fact of the tination was to a port in the enemy's country, which found on board raises a legal presumption, that the property claimed vessel. was not neutral. It is not denied, that a neutral may use the vessel of a belligerent, for the transportation of his goods, and whatever presumption may arise from the circumstance, that it is not of itself a cause of condemnation. In this case, it does not appear, nor was it probably the fact, that any neutral vessel

arising from

a The Friendschaft, 3 Wheat. 14. 48. 6 The Nereide, 9 Cranch, 388. 423. Vol. V.


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