The Friendschaft/Opinion of the Court

by John Marshall

The appellants contend, 1st. That the sentence pronounced by the district court in August, 1814, which was affirmed by the circuit court in May, 1815, condemned finally, the packages for which a decree of restitution was afterwards made, and that the subsequent proceedings were irregular, and in a case not before the court. 2dly. That upon the merits, farther proof ought not to have been ordered, and a condemnation ought to have taken place.

On the first point, it is contended, that these goods, having been comprehended in invoices not endorsed, nor accompanied with letters of advice, are within the very terms of the sentence of condemnation, and must, consequently, be considered as condemned.

The principle on which this argument was overruled in the court below, is to be found in its sentence. The district court, in its decree of 1814, did not intend to confine its description of the property condemned, to the general terms used in that decree, but did intend to enumerate the particular bills to which those terms should apply. This is conclusively proved by reference to the subsequent intended enumeration, which is followed by a blank, obviously left for that enumeration. Had the enumeration been inserted as was intended, the particular specification, would undoubtedly have controlled the general description which refers to it. The unintentional and accidental omission to fill this blank, leaves the decree imperfect in a very essential point; and if the case, and the whole context of the decree can satisfactorily supply this defect, it ought to be supplied. This court is of opinion, that no doubt can be entertained respecting the bills with which the district court intended to fill up the blank. The condemnation of shipments evidenced by bills of lading, with blank endorsements, or without endorsement, could apply to those only which required endorsement, or which were in a situation to admit of it. These were the bills which were made deliverable to shipper, or to the order of the shipper. Bills addressed to a merchant, residing in Lisbon, could not be endorsed by such merchant, until the vessel carrying them should arrive at Lisbon. Consequently, such bills could not be in the view of the judge, when condemning goods, because the bills of lading were not endorsed; and, had he completed his decree, such bills could have been inserted in it. No conceivable reason exists, for admitting to farther proof, the case of a shipment, evidenced by a bill of lading, made deliverable to shipper, or order, and endorsed to a merchant, residing in Lisbon; and at the same time condemning, without admitting to farther proof, the same shipment, if evidenced by a bill of lading, made deliverable, in the first instance, to the Lisbon merchant. No. 108, for example, is made deliverable at Lisbon, to Segnior Jose Ramos de Fonseco, and is consequently not endorsed. It is contended, that these goods are not condemned. But had the bill been made deliverable, to shipper, or order, and endorsed to Segnior Jose Ramos de Fonseco, farther proof would have been admitted.

Nothing but absolute necessity could sustain a construction, so obviously absurd. This court is unanimously of opinion, that justice ought not to be diverted from its plain course, by circumstances so susceptible of explanation, that error is impossible; and that, when the decree was returned to the district court of North Carolina, with the blank unfilled, that court did right in considering the specification intended to have been inserted, and for which the blank was left, as a substantive and essential part of the decree, still capable of being supplied, and in acting upon, and explaining the decree, as if that specification had been originally inserted.

This impediment being removed, the cause will be considered on its merits.

It is contended, with great earnestness, that farther proof ought not to have been ordered, and that the goods which have been restored, ought to have been condemned as prize of war. In support of this proposition, the captors, by their counsel, insist that the rights of belligerents would be sacrificed, should a mere bill of lading, consigning the goods to a neutral, unaccompanied by letter of advice or invoice, let in the neutral claimant to farther proof.

It is not pretended that such a bill would of itself justify an order for restitution; but it certainly gives the person to whom it is addressed, a right to receive the goods and lays the foundation for proof, that the property is in him. It cannot be believed, that, admitting farther proof in the absence of an invoice or letter of advice, endangers the fair rights of belligerents. These papers are so easily prepared, that no fraudulent case would be without them. It is not to be credited, that a shipper in London, consigning his own goods to a merchant in Lisbon, with the intention of passing them on a belligerent cruizer as neutral, would omit to furnish a letter of advice and invoice, adapted to the occasion. There might be double papers, but it is not to be imagined, that papers so easily framed, would not be prepared in a case of intended deception.

It is unquestionably extraordinary, that the same vessel which carries the goods should not also carry invoices, and letters of advice. But the inference which the counsel for the captors would draw from this fact, does not seem to be warranted by it. It might induce a suspicion, that papers had been thrown overboard; but in the total absence of evidence, that this fact had occurred, the court would not be justified in coming positively to such a conclusion. Between London and Lisbon, where the voyage is short and the packets regular, the bills of lading and invoices might be sent by regular conveyances. But were it even admitted 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 before the court, no attempt was made to disguise any part of the cargo. By far the greater portion of it was confessedly British, and was condemned without a claim. The whole transaction with respect to the cargo, is plain and open; and was, in the opinion of this court, a clear case for farther proof.

The farther proof in the claims 108, 109, 141, and 122, consists of affidavits to the proprietary interest of the claimants; of copies of letters, in some instances ordering the goods, and in others advising of their shipment; and of copies of invoices-all properly authenticated. This proof was satisfactory, and the order for restitution made upon it was the necessary consequence of its admission. ^[1]

In the claim to No. 118, made for Joseph Winn, the farther proof was not so conclusive. It consisted of the affidavit of the claimant to his proprietary interest, and to his character as a domiciled Portuguese subject, residing and carrying on trade in Lisbon. The affidavit was made in London on the 29th day of June, 1815, but states the claimant to have been at his fixed place of residence in Lisbon, at the time of the capture, where he had resided for several years preceding that event, and where he continued until the 12th of June, 1814, when he left Lisbon for Bordeaux, and has since arrived in London on mercantile business. That he is still a domiciled subject of Portugal, intending to return to Lisbon, where his commercial establishment is maintained, and his business carried on by his clerks until his return. To a copy of this affidavit is annexed that of Duncan M'Andrew, his clerk, made in Lisbon, who verifies all the facts stated in it.

This property was also restored by the sentence of the district court, and affirmed in the circuit court. On an appeal being prayed, the circuit court made an order, allowing this claimant to take farther proof to be offered to this court. The proof offered under this order consists of a special affidavit of one of the shippers of sworn copies of letters, ordering the shipment, and of the invoice of the articles shipped.

This claim not having been attended, when the sentence of restitution was made, with any suspicious circumstances, other than the absence of papers which have since been supplied, and which was probably the result solely of inadvertence, this court is of opinion, that the farther proof now offered, ought to be received. It certainly dissipates every doubt respecting the proprietary interest. The only question made upon it respects the neutral character of the claimant.

It has been urged, that his native character easily reverts, and that by returning to his native country, the claimant has become a redintegrated British subject. But his commercial establishment in Lisbon still remains; his mercantile affairs are conducted in his absence by his clerks; he was himself in Lisbon at the time of the capture; he has come to London merely on mercantile business, and intends returning to Lisbon. Under these circumstances, his Portuguese domicil still continues.

But it is contended, that the connection between Britain and Portugal retains the British character, and the counsel for the captors has enumerated the privileges of Englishmen in that country.

There privileges are certainly very great; but, without giving them a minute and separate examination, it may be said, generally, that they do not confound the British and Portuguese character. They do not identify the two nations with each other, or effect those principles on which, in other cases, a merchant acquires the character of the nation in which he resides and carries on his trade. If a British merchant, residing in Portugal, retains his British character when Britain is at war and Portugal at peace, he would also retain that character when Portugal is at war and Britain at peace. This no belligerent could tolerate. Its effect would be to neutralize the whole commerce of Portugal, and give it perfect security.

Sentence affirmed.

Notes

1. M. Bonnemant in his commentary upon De Habreu, makes the following remarks:

'Parmi les pieces dont un navire doit etre pourvu pour la regularite de as navigation, il en est de deux sortes; les unes servent a prouver la neutralite du navire, les autres celle de la cargaison.'

'Celles relatives a la cargaison sont les connoissments, les polices de chargement, les factures. Toutes ces pieces font pleine et entire foi, si elles sont en bonne et due forme. Toute ne sont pasd'absolue necessite; comme elles sont correlatives, elles se suppleent entre elle et peuvent etre supplees par d'autres equivalentes. Mais si l'on en decouvre d'autres qui les dementent, s'il se rencontre des double expenditions on autres documens capable d'ebranler la confiance, la presomption defraude se change des-lors en certitude, on ne presume pas simplement le navire ennemi, on le suppose.

'La preuve de la neutralite est toujours a la charge du capture.

'Cette preuve ne peut et ne doit resulter que des paers trouves a bord; *  toute autre indirecte ne peut etre reque ni pour ni contre, c'est la disposition de l'art. 11. du reglement du 26 Juillet, 1773, et des precedens qui veulent qu'on n'ait egard qu'aux pieces trouvees a bord, et non a celles qui pourroient etre produites apres la prise. ----------