The New York

by Henry Brockholst Livingston

United States Supreme Court

16 U.S. 59

The New York

Feb. 5th.

THIS cause was argued by Mr. D. B. Ogden, for the appellant and claimant, and by Mr. Hopkinson and Mr. Baldwin, for the United States.

     Feb. 10th.
      

Mr. Justice LIVINGSTON delivered the opinion of the court.

Notes

*  The latter counsel cited the Eleanor, Edwards, 159, 160. In this case, Sir William Scott observes, that 'real and irresistible distress must be at all times a sufficient passport for human beings under any such application of human laws But if a party is a false mendicant, if he brings into a port a ship or cargo, under a pretence which does not exist, the holding out of such a false cause fixes him with a fraudulent purpose. If he did not come in for the only purpose which the law tolerates, he has really come in for one which it prohibits, that of carrying on an interdicted commerce in whole or in part. It is, I presume, an universal rule, that the mere coming into port, though without breaking bulk, is prima facie evidence of an importation. At the same time, this presumption may be rebutted; but it lies on the party to assign the other cause, and if the cause assigned turns out to be false, the first presumption necessarily takes place, and

the fraudulent importation is fastened down upon him. The court put the question to the counsel, whether it was meant to be argued, that the bringing a cargo into an interdicted port under a false pretence, was not a fraudulent importation, and it has not been denied that it is to be so considered.' 'Upon the fact of importation, therefore, there can be no doubt; and, consequently, the great point by which the case is reduced, is the distress which is alleged to have occasioned it. Now, it must be an urgent distress; it must be something of grave necessity; such as is spoken of in our books, where a ship is said to be driven in by stress of weather. It is not sufficient to say it was done to avoid a little bad wheather, or in consequence of foul winds; the danger must be such as to cause apprehension in the mind of an honest and firm man. I do not mean to say that there must be an actual physical necessity existing at the moment; a moral necessity would justify the act; where, for instance, the ship had sustained previous damage so as to render it dangerous to the lives of the persons on board to prosecute the voyage: Such a case, though there might be no existing storm, would be viewed with tenderness; but there must be at least a moral necessity. Then, again, where the party justifies the act upon the plea of distress, it must not be a distress which he has created himself, by putting on board an insufficient quantity of water or of provisions for such a voyage; for there the distress is only a part of the mechanism of the fraud, and cannot be set up in excuse for it; and in the next place, the distress must be proved by the claimantina clear and satisfactory manner. It is evidence which comes from himself, and from persons subject to his power, and probably involved in the fraud, if any fraud there be, and is, therefore, liable to be rigidly examined.'