de inertne commer James and Moore i would seem, to pays the freight, the i. property in the coristne quire how far that som of a strict scruting. to the great men": establish no such ly declares, that 1ground of prop. ment of the carrie 1. Peck, states, u is no more, than, L::

Son for Ereach of . agreement, wher

of the carriage. 、 an insurer to the goods. It is air :

15 Bar.. 208.

1818.

The Friend

schaft.

were bona fide neutral, it is incredible, that the invoices and letters would not have accompanied the shipment. Is it not equally probable, where the shipment is not on neutral account, or partly on neutral and partly on hostile account, and there is no attempt at deception, that it would have been accompanied with letters and invoices? Yet in the vast multitude of the shipments clearly on enemy account, made by this ship, and which have been condemned without a controversy, there is not one in ten thus accompanied. The packet sails between London and Lisbon with a regularity, certainty, and frequency, little short of what takes place in transmissions by mail. It is the great and established medium of conveyance, established by treaty stipulations, for passengers and letters. Is it strange, therefore, that all the communications between the shipper and the owner of the goods, except a copy of the bill of lading, (which at once evidences the property, and is directory to the master,) should have been sent by this certain and regular and official medium of conveyance? If duplicates of these communications had accompanied the shipments in question, this unusual caution might have been construed into a proof of guilt, and these additional evidences of neutral proprietorship stigmatized as the badges of fraud. But it is alleged, also, that the bills of lading are not verified. The only individual of the crew examined by the commissioners, is the master, and he supports the bill of lading as far as can be expected of a carrier-master. In answer to the 13th interrogatory, he declares that the bills of lading are not false or colourable; and in answer to the 20th,

that he presumes the goods shipped belong to the respective consignees. The rights of belligerents are not the only rights deserving of the notice, and entitled to the protection of courts of prize. Though human testimony may sometimes be corrupt, and often fallacious, it is by human testimony alone, that human tribunals can hope to eviscerate the truth. Condemnation should take place only when the fact of enemy's property has been ascertained; and where that fact is doubted, proof should be resorted to. These principles have received the countenance of all those engaged in the administration of public law, whom the civilized world (cruisers excepted) regard with reverence. They will be found stated with simplicity and perspicuity in the famous British answer to the Prussian memorial, and communicated to the American government in 1794, as the basis of the proceedings in British courts of Admiralty; and which has been adopted by this court as the substratum of its own conduct in cases of prize.-3. When it is recollected that the claimants have sought to furnish proof, both from the port of shipment and the port of destination, from London and from Lisbon; that during the war, the means of procuring such proof from Europe and bringing it to the United States were unfrequent and uncertain; and that delay will not be occasioned by listening to the additional proof now tendered, it is believed that the court will not refuse to hear it. The case of the Bernon, (a) shows that the court, after receiving farther proof, may order additional proof, if requisite to enlighten its judgment;

(a) 1 Rob. 86.

1818.

The Friendschaft.

1818.

The Friendschaft.

and the case of the Frances (") is an authority in point, that the appellate court may order additional proof, if the farther proof on which the cause has been heard below is defective. May not the appellate court then hear it, if to prevent injurious delays it be prepared in anticipation ?-4. The only inquiries of fact, as te the character of the claimant, according to the rules laid down by Sir William Scott, in the Herstelder, (27) are, was he at the time of seizure entitled to restitution; and is he, at the time of adjudication, in a capacity to claim. The present capacity of the claimant is without doubt. His right to restitution must be tested by his national character at the time of seisure, on the 10th of May, 1814. But the objection is founded entirely on a misconception of the meaning of the affidavits. Whether the facts testified be true or not, must depend on the veracity of the deponents. If they are to be believed, they prove a residence of the claimant as an established merchant at Lisbon, for several years preceding the seizure, and up to the 12th of June thereafter; the leaving of Lisbon on mercantile business, animo revertendi, on the 12th of June, 1814, and the continuance of his domicil, residence, and establishment there, and a continued purpose of actually returning thither, up to the date of the affidavits.-5. It must be conceded, that for commercial purposes, among the civilized nations of Europe and the West, the national character of an individual is ordinarily that of the country in which he resides. No position is better established than this, that if a person goes to another country, and theré engages in (b) 1 Rob. 97.

(a) 8 Cranch, 308. 355.

trade and takes up his residence, he is by the law of nations, to be considered as a merchant of that country. This general rule applies to the case of British merchants domiciled in Portugal. They owe allegiance to the government, are protected by its laws, mingle intimately with the natives in all the social and domestic relations, cherish Portuguese industry, increase Portuguese capital, and contribute to the revenue of Portugal. It is true that a very intimate commercial connexion has long subsisted between Portugal and Britain, and that the subjects of the latter are encouraged to settle in the Portuguese dominions, by many advantageous regulations in favour of their traffic. But it is by no means true that any British authority is exercised in Portugal, or that Portugal can be viewed as the dependant province of Britain. First. There is no authority for the assertion that the ports of Portugal are open in war for the adjudication of British captures made from nations at peace with Portugal. An irregular practice formerly obtained to that effect, to which sir Wm. Scott alludes in the Henrick and Maria; but it was sanctioned neither by treaty nor decree. The treaty of 1810 is utterly silent on that head, and it is a matter of notoriety, that on the breaking out of the late war between the United States and Great Britain, a royal decree was issued, forbidding the cruisers of belligerents from bringing their prizes into the dominions of Portugal, which was enforced throughout the war. Second. Portugal is not bound by treaty to deliver up British vessels brought into her ports which have been taken by the enemy of Britain.

1818.

The Frienischaft.