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 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 virtue of a "municipal regulation," and not of a right of war; and that, as it appeared that the seizure was made ten leagues from the coast, it was a marine trespass which gave to the courts of the captor no jurisdiction to pronounce a sentence of condemnation. The judgment of the circuit court was therefore ordered to be reversed. Rose r. Himely (1808), 4 Cranch, 241. The opinion of Mr. Justice Johnson, who delivered the opinion in the circuit court, is printed in 4 Cranch, 509, Appendix. In connection with the foregoing case, another case was argued in which it appeared that the vessel and cargo, which were condemned under General Ferrand's decree, were seized within the territorial jurisdiction of San Domingo, though they were carried into a Spanish port and held there by French agents, when the decree of condemnation, which was pronounced in the French island of Guadaloupe, was passed. On the ground that the seizure was made within the territorial jurisdiction, the sentence of condemnation was sustained, Marshall, C. J., again delivering the opinion. The judgment of the circuit court was reversed. Hudson v. Guestier (1808), 4 Cranch, 293. When the foregoing case came up on its second trial, it appeared that it was submitted on the first trial upon an agreed state of facts, one of which, supposed by the parties to be immaterial, was the statement that the vessel was seized within a league of the coast. On the second trial it was shown that she was seized six leagues from land, but the judge instructed the jury that the seizure was legal and the condemnation valid, if it appeared that the vessel had violated the French municipal regulations by trading with the Dominican insurgents. A second appeal was taken, and, upon the facts newly established, the seizure and condemnation appeared to be invalid, if the decision in Rose . Himely was to be adhered to. But Livingston, J., observing that it had been settled, against his opinion,, that the condemnation at Guadaloupe was valid, though the vessel and cargo were lying in the port of another nation, declared that, if the res could be proceeded against when not in the possession or under the control of the court, he could not perceive how it could be "material whether the capture were made within or beyond the jurisdictional limits of France; or in the exercise of a belligerent or municipal right." "By a seizure on the high seas," continued Mr. Justice Livingston, “she interfered with the jurisdiction of no other nation, the authority of each being there concurrent. It would seem also that, if jurisdiction be at all permitted where the thing is elsewhere, the court exercising it must necessarily decide, and that ultimately, or subject only to the review of a superior tribunal of its own state, whether, in the par ticular case, she had jurisdiction, if any objection be made to it. And, although it be now stated, as a reason why we should examine whether a jurisdiction was rightfully exercised over the Sea Flower, that she was captured more than two leagues at sea, who can say that this very allegation, if it had been essential, may not have been urged before the French court, and the fact decided in the negative? And, if so, why should not its decision be as conclusive on this as on any other point? The judge must have had a right to dispose of every question which was made on behalf of the owner of the property. whether it related to his own jurisdiction, or arose out of the law of nations, or out of the French decrees, or in any other way: and, even if the reasons of his judgment should not appear satisfactory, it would be no reason for a foreign court to review his proceedings, or not to consider his sentence as conclusive on the property. "Believing, therefore, that this property was changed by its condemnation at Guadaloupe, the original owner can have no right to pursue it in the hands of any vendee under that sentence, and the judgment below must, therefore, be affirmed." The other judges concurred, except Marshall, Ch. J., who observed that he had supposed that the former opinion delivered in these cases upon the point in question had been concurred in by four judges. In this he was mistaken; it was concurred in by one judge. He himself still adhered to it. Continuing, he said: "He understood the expression en sortant, in the arrete, as confining the case of vessels coming out, to vessels taken in the act of coming out. If it included vessels captured on the return voyage, he should concur in the opinion now delivered. However, the principle of that case (Rose v. Himely) is now overruled." Hudson v. Guestier (1810), 6 Cranch, 281, 284, 285. The sentence of a foreign court of admiralty, condemning a vessel for a breach of blockade, is conclusive evidence of the offense in an action on a policy of insurance. Croudson v. Leonard (1808), 4 Cranch, 434. The sentence of a foreign court of admiralty, though avowedly made under a decree subversive of the law of nations, binds the property on which it acts. This principle was applied to sentences under the Milan decree, which both the Executive and the Congress of the United States had declared to constitute a flagrant violation of the law of nations, the court observing that Congress, while making this declaration in regard to the decree, had not declared that the sentences pronounced under it should be considered as void. Williams v. Armroyd (1813), 7 Cranch, 423. |