of law in prize

courts.

In prize courts, as in all other judicial tribunals, Presumptions there are certain legal presumptions which affect the parties, and are regarded as of general application. Thus, possession is considered as prima evidence of property; and thus, the title to property captured, is presumed to be in the enemy, in the absence of all evidence to establish any proprietary interest. And so, too, goods found in an enemy's/And the bur den of proof ship, are presumed to be enemy's property, unless resulting accompanying them there be documentary proof of a distinct neutral character. Where property falls within the character of contraband, it is presumed not to be the product of the claimant's own country, which exempts it from seizure, unless that fact be proved by the claimant."

A merchant transacting business as such, is presumed to be doing so on his own account; but if the person acting be not a merchant, that may give a qualified character to his acts."

Where a ship has been captured and carried into the port of an enemy, and is subsequently found in the possession of a neutral, the presumption is, that there has been a regular condemnation and sale, and it is incumbent on the party claiming the property from the neutral possession, to prove the contrary."

Where, by the provisions of a treaty, persons happening to be settled in a ceded port, are to remove

3 Loccenius, Lib. II., c. ii., n. 4; Gros de Jur. Bel. et Pac., Lib.

III., c. vi., § 6.

The Twee Juffrowen, 4 Rob., 242.

The Jonge Pieter, 4' Rob., 242.

The Countess of Lauderdale, 4 Rob., 283.

therefrom.

The national character of

therefrom, the presumption is in their favor, and must be rebutted by proof that they did not intend to remove.1

The testimony of the master of the captured ves sel as to her destination, and also as to the alleged treatment of the crew, is held conclusive upon these points, if it be not contradicted or fairly discredited.?

The national character of the captured property prize property is, in the large majority of cases, the principal ques the principal. tion discussed on the hearing. The determination cussed on the of this question depends upon many and various

question dis

hearing.

circumstances, such as the habits and trade of the ship, the nature of the voyage and cargo, the legal or illegal conduct of the parties, and upon the national domicil of the asserted proprietor, or the nature of the title by virtue of which he claims. These several insignia of hostility of character have already been fully considered in the chapter treating of that subject. In this connection it will be sufficient simply to refer to the leading principles, and to the decisions of the prize courts by which they have been established. In all cases of condemnation, whatever be the fact, by intendment of law the property is deemed enemy's property, and is eo nomine condemned."

In the determination of the question of enemy or

'The Diana, 5 Rob., 60.

The Die Frie Damer, 5 Rob., 357.

The Elsebe, 5 Rob., 173; The Nelly, 1 Rob., 219; The Alexander, 8 Cranch, 169; The Julia, 8 Cranch, 181; The Thomas Gibbons, 8 Cranch, 421; The St. Lawrence, 1 Gall, 532; The Joseph, 1 Gall., 545.

neutral, it is settled, that where a person has his domicil, there is his country, whatever may be his country of birth or adoption.1

national char

acter.

In all cases, the master and crew are presumed Question of to possess the national character of the vessel to which they are attached, during the time of their employment."

domicil.

A person who remains in a belligerent country As affected by for several years, paying taxes, etc., though his design at first was a mere temporary sojourn, loses his national character.

8

A neutral consul resident and trading in a belligerent country, is deemed a belligerent.*

The native character reverts at once, upon removal, and indeed as soon as one puts himself in. itinera to his native country, animo revertendi.

trade.

A neutral merchant trading in the enemy's coun- As affected by try as a privileged trader, is deemed an enemy, but not if he be engaged in the ordinary and accustomed trade of neutral merchants.5

The domicil of a commercial partnership is reg. ulated by that of the persons composing.

1 The Vigilantia, 1 Rob., 1; The Endraught, 1 Rob., 19; The Susan Christina, 1 Rob., 237; The Indian Chief, 3 Rob., 23; The President, 5 Rob., 277; The Neptunus, 6 Rob., 403; The Venus, 9 Cranch., 253; The Frances, 1 Gall., 614; McConnel vs. Hector, 3 Bos. and Pul., 113.

The Endraught, 1 Rob., 23; The Bernou, 1 Rob., 102; The Frederick, 5 Rob., 8; The Ann, 1 Dod., 221.

The Harmony, 2 Rob., 232.

The Indian Chief, 3 Rob., 22; The Josephine, 4 Rob., 25; The Citto, 3 Rob., 38; La Virginie, 5 Rob., 98; The St. Lawrence, 1 Gall., 457.

The Anna Catherina, 4 Rob., 119; The Rendsberg, 4 Rob., 139. The Viglantia, 1 Rob., 1, 14, 19; The Susa, 2 Rob., 255; The Indiana, 3 Rob., 44; The Portland, 3 Rob., 44; The Vriend

As affected by the ship's flag or pass.

If a neutral merchant continue in a house of trade in the enemy's country after knowledge of the war, he is regarded as an enemy.1

The character of the traffic alone, is sometimes sufficient proof of hostile character, as, if a neutral be engaged in the enemy's navigation, it impresses a hostile character upon all his vessels which have no distinct national character, as well as the one so employed.

The flag or pass under which a ship is sailed is deemed conclusive evidence of its national charac ter, though in general, the national character of a vessel depends on the domicil of the owner; but the owner is bound by the flag or pass which he sees fit to make use of, and when it happens to operate against him, he is not at liberty to deny the character which he assumed for his benefit. Such

flag or pass so assumed does not bind other parties as against the owner. They are at liberty to prove the spurious character of the credentials, and the sifting of the evidence upon the hearing, by prize courts, is frequently directed to removing the mask and exposing the true character of the vessel in question.

8

schap, 4 Rob., 166; The Jonge Klassina, 5 Rob., 297; The Antonia Johanna, 1 Wheat., 159; The St. Jose Indiana, 2 Gall.. 268.

1 The Francis, 1 Gallis., 618, and S. C., 8 Cranch, 348; The Susa, 2 Rob., 251, 255.

2 The Vriendschap, 4 Rob., 166.

The Vigilantia, 1 Rob., 1, 19, 26; The Vrow Catherina, 5 Rob., 161; The Success, 1 Dod., 131; The Planter's Wench, 5 Rob., 22; The Magnus, 1 Rob., 31; The Fortuna, 1 Dod., 87; The Princessa, 2 Rob., 49; The Anna Catherina, 4 Rob., 107; The Commerce, 1 Wheat., 382.

dur- As affected by The sels during

transfer of ves

The subject of the transfer of enemy's ships ing war, has already been fully considered. effect of such transfer becomes very often an important question at the hearing, and has frequently been discussed in prize courts. The student is referred to numerous additional authorities, illustrating the practice of the tribunals.1

war.

fer of goods in

So, too, has already been considered, the effect And the transof a transfer of property in cargo, from an enemy to transitu. neutrals, while upon the voyage, or as it is called, in transitu. This is a fruitful question for discussion and the determination of prize courts upon the hearing; and the reader is here referred to many decisions upon the subject both by the courts of England and the United States.

affecting pro

It is sufficient after the consideration already Illegal trade as given to the subject of illegal trade, or that which prietary interbecomes illegal during war, to refer to the leading decisions of the prize courts upon that subject, as

ests.

1 The Phonix, 5 Rob., 20; The Dree Gebroeders, 4 Rob., 232; Bentzon's Claim, 9 Cranch, 191; The Bernou, 1 Rob., 102; The Sechs Gedschmis tem, 4 Rob., 100; The Argo, 1 Rob., 158; The Jenny, 4 Rob., 31; The Omnibus, 6 Rob., 71; The Minerva, 6 Rob., 396; The Packet de Bilboa, 1 Rob.,133; The Noyt G‹dacht, 2 Rob., 137, note a.

The Danckebaar Africaan, 1 Rob., 107; The Hatstelda, 1 Rob., 114; The Vrow Margaretha, 1 Rob., 336; The Jan Frederick, 5 Rob., 128; The Carl Walter, 4 Rob., 207; The Sally, 2 Rob., 300, note a; The Atlas, 3 Rob., 299; The Anna Catherina, 4 Rob., 107; The Rendsburg, 4 Rob., 121; The Jan Frederick, 5 Rob., 128; The Aurora, 4 Rob., 218; The Merrimack, 8 Cranch 317; The Marianna, 6 Rob., 24; The St. Jose Indiano, 2 Gallis., 268, 1 Wheat., 208; The Venus, 8 Cranch, 253; The Frances, 1 Gall., 445, S. C., 8 Cranch, 344, 9 Cranch, 183; The Mary and Susan, 1 Wheat., 25; The Josephine, 4 Rob., 25.