Green, 1 F. Cas. 958 (Mass. 1812)

STORY, Circuit Justice,

after a recapitulation of the facts. Such are the facts disclosed in the evidence; and various objections have been argued, and ingeniously argued, which I shall now proceed to consider. In the first place it is contended, that the supplementary examination of Mr. Fish, and the accompanying letters, ought to be rejected. It is undoubtedly the practice of the prize courts to confine the first hearing of the cause to the papers found on board of the ship, and the preparatory examinations. If they acquit or condemn, there is, in general, an end of the cause. If they present a case of doubt or difficulty, further proof is admissible, and this may either be by the common order for further proof, or the more solemn proceeding by plea and proof. But doubts either of condemnation or acquittal may sometimes arise from extrinsic facts presented by the claimant or the captors, and the discretion of the court is sometimes exercised in the admission or rejection of such facts. The prize courts are however very solicitous to preserve the simplicity of their proceedings, and therefore, if the case appear very clear and satisfactory upon the original evidence, they yield with great reluctance to the admission of extrinsic circumstances.

The evidence of papers invoked from other •canses, and of papers found on board other ships, does not come ■within the restriction, and in other instances of pregnant suspicion, •or reasonable doubt, the courts will not suffer a rule, founded upon the mere convenience •of practice, to exclude the captors from the benefit of diligent inquiries. The Sarah, 3 3. Bob. Adm. 330; The Borneo, 6 C. Bob. Adm. 35; The Vriendschap, 4 O. Bob. Adm. 166. But it is a rule, which every principle of law and of policy requires should not be relaxed, that, as the evidence to acquit or condemn must, in the first instance, come from the ship’s papers and preparatory examinations, no papers should be allowed, which are not produced at the first examination. What would be the consequence of a different practice? That parties would, at the first examination, make formal answers, and after full time was given to know the ■difficulties of the case, papers and evidence would be manufactured to meet them. . Good faith on the contrary requires, that every paper should be disclosed at the first; that parties should tell the whole truth; and that every inducement to concealment or suppression of evidence should be completely discountenanced. And I wish it to be distinctly understood, that if parties will attempt to cover up the real transactions, or withhold them, until counsel can be taken, they can never be permitted in a prise court to supply the first defects. The Anna, 1 G. Bob. Adm. 331; The Speculation, 2 G. Bob. Adm. 293.

In the present case, I think the supercargo, Mr. Fish, has acted with very great impropriety. It is perfectly frivolous to pretend that he did not know but that the captors had these fifteen letters. Where was the ship’s letter bag when the ship was captured? Was it given up to the captors? If it had been so, the whole papers would have been before the court; for the prize-master has sworn to the delivery of all ship’s papers delivered to him. It is not even now pretended, that the captors had these letters; -on the contrary, the evidence is, that they were in the ship’s letter bag, and had always remained there on board of the ship. Where was the letter bag kept? No account is given of it; and to suppose that it was not concealed and suppressed, is to suppose that the captors voluntarily relinquished all benefit of evidence, which might go to the condemnation of the property. I have no doubt, therefore, that there was a premeditated suppression and concealment by the deponent, and that, at the time of his first examination, the letter bag was in his possession. Yet he has answered on the subject in a manner, which no honest man can approve. I regret to say, also, that the second examination proves incontestably, if it be credited at all, that Mr. Fish did not tell the whole truth at that time. How slight and vague are his answers to the interrogatories as to the property and papers! Yet, on his second examination, he has not only new knowledge of facts, but he states that he has no doubt that Messrs. Simond & Co. are the real owners of the rum, and that Cullen acted as their agent; and he relies upon circumstances within his knowledge at Jamaica, to corroborate the opinion. Now let me ask, why were not these facts and circumstances disclosed at the first examination? The witness does not pretend, that the light has just dawned upon him. I must conclude, therefore, that he did not choose to declare all that he had: the means of knowing. If he has acted in so unjustifiable a manner, I do not think it any severity to receive his testimony with great hesitation.

I cannot, however, in this connexion, omit to remark, that with very few exceptions, the preparatory examinations are not taken with that fulness and exactness, which the interrogatories require. It is the duty of the commissioners, not merely to require a formal direct answer to every part of an interrogatory, but to require the witness to state the facts with all the minuteness and detail, which belong to them. The commissioners should not be satisfied with a general answer. They know the object of the examination, and it is their indispensable duty to procure a full and explicit and circumstantial answer to every question. If this were always done, much of the uncertainty which now is found in prize causes at a first hearing, would be completely obviated.

But to return. Though I directed this second examination to be admitted under the order for farther proof, it was not that I was satisfied with its legality; on the contrary, I then entertained and still entertain great doubts, if of itself it can be relied on for any purpose; certainly, if any material fact depended upon it, I should not feel safe in the admission. If I do not absolutely reject it, it is only in deference to the entire respect which I feel for the order of the district court. As a general rule, I should pronounce for the inadmissibility of the evidence. I shall leave it therefore where I find it, as it does not materially enter into the judgment which I have formed.

I come now to consider a second objection, which is, that the property must be considered as British property, because, taking the whole evidence together, Cullen was domiciled in Jamaica, and acting in the character of a British subject. It is certainly made out in the evidence, that Cullen has been for four years last past resident a considerable portion of his time at Jamaica; and his letter of the 7th of June shows, that he made the shipment as a British subject. As to the domicil, it is undoubtedly true, that length of time, connected with other circumstances, may go very far to constitute a domicil. “Time,” says Sir William Scott, “is the grand ingredient in constituting domicil. I think that hardly enough is attributed to its effects. In most cases it is unavoidably

conclusive.” The Harmony, 2 C. Rob. Adm. 322. Upon a residence therefore for temporary purposes, there may be engrafted all the effects of permanent settlement, if it be continued for a great length of time, and be attended with conduct, which demonstrates that new views and new connexions have supervened upon the original purposes; but, on the other hand, mere length of time cannot of itself be decisive, where the purpose is clearly proved to have been temporary, and still continues so, without any enlargement of views; and even the shortest residence, if with a design of permanent settlement, stamps the party with the national character. The Indian Chief, 3 C. Rob. Adm. 12; The Diana, 5 C. Rob. Adm. 60; The Boedes Lust, 5 C. Rob. Adm. 233. The question, after all, results in an inquiry into the intention and conduct of the party; and it is extremely difficult to lay dawn any general rule upon the subject. If Mr. Cullen were domiciled at Jamaica, at the time of the shipment, he would be liable to all the consequences of a British commercial character; for no principle is better settled, than that the property of a person settled in the enemy’s country, although he be a neutral subject, is affected with the hostile character. It Is quite immaterial in this view, what was the original or acquired allegiance of Mr. Cullen. A native American citizen is just as much within the scope of the principle as a foreigner. In examining the testimony however, I think it is difficult to resist the impression, that Mr. Cullen’s absence was originally for temporary purposes. It is expressly shown, that he went out to collect the debts of the company, and there is no part of the evidence that points to a distinct trade disconnected with those debts. I admit that his connexion in a house of trade in New-York would not alone protect him; for he may at the same time possess the commercial character of several nations. The Jonge Klassina, 5 C. Rob. Adm. 297, and The Vriendsehap, 4 C. Rob. Adm. 166, are full to this point But when his original purposes are shown to be temporary, and the whole transaction was in a time of peace, I do not think the presumption from length of time so forcible.

It is said, that Mr. Cullen was originally a British subject and that native allegiance easily returns: and La Yirginie, 5 C. Rob. Adm. 98, is cited in support of the position. Without pretending to be satisfied with that decision, which with all possible respect for the learned judge, I must say upon the evidence furnished in the report, was rather strained, I accede to the doctrine, that fewer circumstances are. necessary to constitute domicil in case of native subjects, than of foreigners: and that as native allegiance easily reverts, so the presumption against the party is much heightened by the ship-ment being made from a port of his native country. Still, however, it is but a presumption, and if clearly done away, I do not think that a single principle is overturned by a disregard of that circumstance. It is also said, that this shipment was made by Cullen in the character of a British subject, and that this furnishes distinct proof of his having returned to his native allegiance. I agree that such would ordinarily be the case; but a distinction has been taken in the authorities between a time of peace and of war. Much greater laxity is allowed to mercantile transactions in peace than in war. Disguises and covers are allowable in the former, which would not be tolerated in the latter. I do not know that a single case has been decided, in which the assuming a national character in time of peace, to avoid municipal duties or regulations, or to avoid the effects of impending war. has been held to bind the party, where it has not been in fraud of the belligerent who makes the capture. Now it is very clear, that Mr. Cullen did not assume the British character. to evade either the municipal or belligerent rights of the United States. We all know that the introduction of the produce of the British islands into the United States was prohibited. It could only go to British ports. A war was impending; and either to avoid alien duties or British captures, Mr. Cullen might have assumed the British character pro hac vice. Indeed, if the letters produced upon the supplementary examination were admitted to have full effect, this inference would be apparent from the language which is used. These letters are as merely color-able as any that could be offered. If Mr. Cullen had gone on, after the war, making shipments in the British character, I have no doubt that he would have been affected with its penal consequences. But the question now is, if the shipment made in a British character, without being engaged as a general merchant, and without the intention of evading any other but the municipal or belligerent rights of the enemy, shall conclude the party as to his domicil, I cannot say that where the proof is otherwise satisfactory, this circumstance alone ought to draw after it that consequence. I think that great indulgence usually is granted to neutrals and to citizens, as to transactions in time of peace, and at the commencement of a war; and if they contravene no municipal or national policy, I am not prepared to say that this indulgence is inconsistent with law. The Yrow Elizabeth, 5 0. Rob. Adm. 2; The Yreede Scholtys, Id. 5, note. It is also said, that no claim ought to be admitted, which stands in opposition to the papers, and that Mr. Cullen stands in them as sole proprietor; and he traded as a British subject. The general rule certainly is, that no-claim shall be admitted against the evidence of the ship’s papers; and the reason of the rule is, that fraud may be suppressed and discouraged. If a party will undertake to cover his property with a particular charac

ter, he shall be bound to its consequences, i But an exception as old as the rule itself is, that it applies to cases during open war, and not before the commencement of it, or in time of peace. Parties hare been permitted to claim, who in time of peace, or even just before the commencement of war, to elude or deceive the enemy, have assumed neutral or even enemy’s colors. It is a stratagem, which if practised in peace, to the injury of a foreign nation, no other thinks itself bound to redress; and if, on the eve of a war, to elude the enemy, it has not been deemed an infringement of national rights. I believe the cases are not uncommon in the books for the property under such circumstances to assume altogether a fictitious or hostile name. The Vrow Anna Catharina, 5 C. Rob. Adm. 15, 161; La Mora, 6 C. Rob. Adm. 1; The Vrow Elizabeth, 5 C. Rob. Adm. 2, 5, note.

But does this property stand altogether documented in opposition to the claim? I think not. It is claimed by the house of L. Simond & Co. and is documented in the name of one partner of that house; and this with a view not to defeat American but British rights. But even if it had stood documented as British property, I think it would be entitled to very favorable considerations. Its real character is now shown, and I entertain no doubt, that the property did belong to Messrs. Simond & Company. Its being found on board a British ship, even with British documents, does not prevent me from looking at the interest of the real owners, and decreeing under the circumstances of the case in their favor. The Vreede Schol-tys, 5 C. Rob. Adm. 5, note. Very different considerations would have applied, if the shipment had been made after knowledge of the war. I think therefore that this part of the case has been fully answered, and that the facts disclosed show that Cullen was at Jamaica for a temporary purpose only, that of collecting debts, and that no act there done has impressed him with a renewal of British character.

Another objection of a more general cast has been urged. It is, that admitting that Cullen was domiciled in the United States, still the trade was hostile, and such as exclusively belong to British subjects, and therefore the property is confiscable. There can be no doubt, that a trade may be hostile, and affect the party with condemnation, although he be a neutral, or citizen of our own country. Such is the common case of a citizen engaged in trade with the enemy; and according also to British doctrines, a participation in the coasting or colonial trade of the enemy. To these doctrines, as to the colonial and coasting trade, I am not called upon to give any assent, and I by no means wish to be considered as acquiescing in them. Whenever Great Britain shall be a neutral, perhaps there will not be any hardship in enforcing her own doctrines against her; but as to other neutrals, the question will deserve great consideration. But however it may be, as to the general colonial trade, I think that it may well be admitted as a principle of national law, that where a neutral is engaged in a commerce, which is exclusively confined to the subjects of a country, and is interdicted to all others, and cannot be avowedly carried on in the name of a foreigner, such a commerce is to be considered as so entirely national, that it must follow the situation of the country. The property is considered as so intimately incorporated into the commerce of the country, that it receives its character solely from that commerce. In this view, though the property may be neutral, yet the commerce, in which it is engaged, may be hostile, and induce a confiscation. Such I understand to be the opinion of Sir William Scott in The Anna Catharina, 4 C. Rob. Adm. 107, The Princessa, 2 C. Rob. Adm. 49, and The Rendsborg, 4 C. Rob. Adm. 121, and I am not disposed at all to question the sound policy or principle, which dictated those decisions: and I admit further, that in such a trade it is quite immaterial whether the shipment be in peace or in war. The question then will be, whether the trade between Jamaica and Quebec be such a trade; for if it be, then it must be followed with all the consequences, which I have stated. It is affirmed on one side, and denied on the other. I should have been glad that the learned counsel, who made this objection, would have furnished me any statutes or authorities of the British government in proof of his position. I am aware, that between British colonies the trade is confined in general to British ships. The statute of 7 & 8 Wm. III. c. 22, prohibits in general the exportation of any goods or commodities from any British colony, except in British ships. But goods, which may be exported in British ships, may be exported from one colony to another. And by the St. 12 Car. II. c. 18, § 2, no alien, unless naturalized or a denizen, is allowed to exercise the trade of a merchant or factor in any British colony. These are the only provisions, which I have been able to meet with in those works, which seemed best adapted to convey the information, (Reeves, Shipp.; 6 Com. Dig. “Trade;”) but they by no means establish the position in its full extent. They show extreme caution and jealousy as to the plantation trade, but by no means show that none other than a British subject would be allowed to export in a British ship from one colony to another. I do not understand, that the captors can produce any evidence to this effect; and certainly unless they do, no inference ought to be drawn against the claimants. If further proof on this point had been urged, I should have required it. As it has not been, and the cause has come to a final hearing, I feel myself bound to declare, that I have no evidence of such an

exclusive trade, as affects with a hostile character the property in question. It has been further argued, that this capture, being made while the property was in transitu, and war intervening, it is to be considered as enemy’s property, because it would have become such upon arrival at the port of destination; and at all events it would have been liable to seizure and confiscation. As to the fact that the property was taken in transitu, I do not perceive how of itself it can affect the rights of the parties either way; nor do I perceive how this property was to have become enemy’s property on its arrival. The case proved is, that it was American property consigned for sale only, and not a consignment where the property was, at the time of shipment or of arrival, To belong to the consignee. The cases are, as I think, settled upon just principles, that decide that in time of war, property shall not be permitted to change character in its transit; nor shall property consigned, to become the property of the enemy on arrival, be protected by the neutrality of the shipper. Such contracts, however valid in time of ;>eace, are considered, if made in war or in contemplation of war, as infringements of belligerent rights, and calculated to introduce the grossest frauds. In fact, if they could prevail, not a single bale of enemy’s goods would ever be found upon the ocean. The Vrow Margaretha, 1 0. Rob. Adm. 336; The Carl Walter, 4 C. Rob. Adm. 207; The Jan Frederick, 5 C. Rob. Adm. 128; The Constantin, 6 C. Rob. Adm. 321; The Atlas, 3 C. Rob. Adm. 299; The Anna Catharina, 4 C. Rob. Adm. 107. Where however the contract has been made during peace, it has received a more liberal consideration; and the case of The Packet De Bilboa, 2 C. Rob. Adm. 133, so much relied on by the captors’ counsel. clearly shows that the property, notwithstanding a consignment to a party, who after-wards becomes an enemy, .if made at the risk of the shipper, in peace, will be protected. Indeed that case, in some respects, goes the whole length of the present

As to the other suggestion, that the property would on arrival have become subject to confiscation, as American property; and therefore is to be considered precisely as if it had arrived and been confiscated, I certainly know no principle of law which would allow me to condemn in such a case. If an American vessel be captured and recaptured, the argument that it had become enemy’s property, would be much stronger, and yet it has never been allowed to prevail. Even supposing that upon arrival this property would have been liable to confiscation, and certainly by the law of nations the government would have a right of confiscation, (Bynk. Ques. Pub. Jur. c. 7,) I am not aware how I can hold that to be done, which might by possibility have been done. It has not been the modern usage to extend the right of confiscation of enemy’s property found in ¡ a country at the beginning of a war; and I may say, that in general it has been reluctantly admitted. That it would be insisted on in all its rigor, I shall not deem myself obliged to presume. As between Great Britain and the United States there is a stronger reason not to presume it, inasmuch as the 10th article of the treaty of 1794 prohibits it, as to debts and money in the funds and in banks, and declares it unjust and impolitic. But there is no necessity of adverting to this consideration, for I am well satisfied, that if upon arrival at Quebec, the property would have been liable to confiscation, that circumstance, so far from opening a ground of condemnation, would rather incline the other way. The argument on this head is therefore wholly inadmissible.

It has been next contended, that the captors are entitled to salvage, if the property is deemed American, because it has been saved from the grasp of the enemy; and The War Onskan, 2 C. Rob. Adm. 299, has been cited, to prove that salvage is due in aE cases, where a benefit is conferred. I rather think that the position is laid down too broadly, for upon that footing a person giving information of the war might be entitled to salvage; yet no such claim has ever been admitted; and though rescue from the attack of an enemy, by approaching with a superior force, would be a clear case of salvage; yet it has been denied. In order to entitle to salvage, as upon a recapture or rescue, the property must have been in the possession, either actual or constructive, of the enemy. The Edward and Mary, 3 C. Rob. Adm. 305; The Franklin, 4 C. Rob. Adm. 147. There is no case where military salvage has been aUowed, merely from stopping a ship going into an enemy’s port: and the case of The Packet De Bilboa, 2 C. Rob. Adm. 133, 138, and The Franklin, 4 C. Rob. Adm. 147, are clearly the other way. I shaE adhere to those decisions, because they are founded in fair and equitable principles.

It has been further contended, that at aE events the captors are entitled to freight and expenses. The general rule undoubtedly is, that the captors are not entitled to freight, unless the goods are carried to their original destination, within the intent of the contracting parties. But it is argued that this is an intermediate case, and within the equity of the decision in The Diana, 5 0. Rob. Adm. 67. In that case, the goods were destined to Amsterdam, with an intention that they should, in specie or in proceeds, ultimately be remitted to England; and the court held, that as the goods were brought to London, to the port to which the claimant would have sent them directly, if he had not been prevented by the policy of the Dutch government, which refused the exportation of the produce of its colonies to any but the mother country, the freight was due. It has been argued on the other side, that the case is inapplicable, because New York

would have been the port of destination, if the parties could have lawfully pursued their voyage thither; and that Boston being a port of another state, cannot be within the reason of the ease, any more than any other foreign port I readily admit that the ch-ses do not run upon aii fours, but the principle strikes me as fully applicable. The parties would have brought the property directly into the United States, if they could. They contemplated the remittance of the proceeds to the United States. I say to the United States, because it will hardly be contended that if the proceeds had been remitted to Boston for the use of the claimants, it would not have been as much within their intention, as a remittance to New York. In a commercial view, these cities must be considered from their proximity al- , most as one. Nor can I consider Boston as a foreign port in any view connected with this question. It is as much a port of the same country, as a port in Scotland is of Great Britain. And though Sir William Scott appears in The Diana to rely somewhat upon the circumstance, that London was the port to which the claimants would have pointed as the destination; yet in The Yrouw Henrietta, 5 0. Bob. Adm. 75, note, be held, that where the goods were unloaded at Plymouth, and the claimant resided at London, the freight was payable, and he overruled the distinction now contended for. For myself. I have no hesitation to declare, that independent of all authority, where the proceeds of the goods were ultimately intended for this country, and they had been saved from the grasp of the enemy by the capture, I should allow a full and complete freight. It is in vain to shut our eyes against the real benefit conferred on the claimants.

As to expenses, independent of all other circumstances, as this was a case of further proof, they ought to be allowed to the captors. The questions, too, which have been argued, were very properly brought before the court, and I am glad that the sum in controversy will enable the parties, if dissatisfied with, my judgment, to apply to the highest tribunal. In allowing the expenses I have the authority of Sir W. Scott, if the allowance require any authority, in the case of The Packet De Bilboa. And I take a pleasure in declaring, that however lightly the- English courts may affect to treat our decisions, I shall not hesitate upon this or any other occasion to acknowledge my obligations to the learning and sagacity of that ' eloquent and' able judge. I affirm the decree of the district court, and order the freight, at. the price in the bill of lading, and all the expenses of the captors, of both courts, to be a charge on the goods.

Bestored.