able to control by strong presumptive circumstances, and must be weighed with care, when it comes loaded with the temptations of private interest, and the impressions of personal penalties. It is a melancholy consideration for the court, that in the discharge of public duty, it finds itself often obliged to resist the influence of human declarations, and to rely upon the concurrence of probable circumstances.

In the present case, the claimant admits, that the brig proceeded to a foreign part and there disposed of her cargo. It therefore becomes incumbent on him to make out a justification in point of fact, as well as law. The onus probandi rests on him, and a forfeiture must be pronounced, unless he brings the defence clear of any reasonable doubt. Now, there are many circumstances in this case, which have a tendency to excite strong suspicions and doubts."

The same case came up, on appeal, before the Supreme Court of the United States, and is reported in the 9th Cranch, p. 55. The Chief Justice, in delivering the opinion of the court, reversed the decree of the court below, in respect to the duty of the master and crew of a captured vessel to rescue her, but in respect to the presumptions of law to be applied to cases of this character, the Court said :

"The interest which coasting vessels had in fictitious or concerted captures, undoubtedly subjects all captures to a rigid scrutiny, and exposes them to much suspicion. The case of the claimant ought to be completely made out. No exculpatory testimony, the existence of which is to be supposed from the nature of the transaction, ought to be omitted. The absence of such testimony, if not fully accounted for, would make an impression extremely unfavorable to the claim.

In the case of the Brig Struggle (9 Cranch, 71), which was an information in the District Court of Massachusetts, for violation of the non-intercourse act of Congress of June 28, 1809, Mr. Justice Livingston, in announcing the opinion of the Supreme Court, said:

"Although mere suspicion, not resting upon strong circumstances unexplained, should not be permitted to outweigh positive testimony in giving effect to a penal statute; yet it cannot be regarded as an oppressive rule to require of a party who has violated it, to make out the vis major under which he shelters himself, so as to leave no reasonable doubt of his innocence; and if, in the course of such vindication, he shall pass in silence, or leave unexplained, circumstances which militate strongly against the integrity of the transaction, he cannot complain if the court shall lay hold of those circumstances ás reasons for adjudging him IN DELICTO."

In the case of the Robert Edwards (6 Wheaton, 187), which was a libel for alleged forfeiture under the 46th sec

tion of the Revenue Law of 1799, the Supreme Court reaffirmed the doctrines in respect to burden of proof and presumptions of guilt, which had been laid down six years previously. The Court said:

"It will be sufficient to advert to a few of the prominent facts, to ascertain the real character of this transaction. The Court has been reminded that it ought not, without the most satisfactory and positive proof, in a case so highly penal, to decide that a violation of law has been committed. Although such proof may generally be desirable, we are not to shut our eyes on circumstances which sometimes carry with them a conviction which the most positive testimony will sometimes fail to produce. And if such circumstances cannot well consist with the innocence of the party, and arise out of her own conduct, and remain unexplained, she cannot complain if she be the victim of them."

In the case of Ten Hogsheads of Rum (1 Gallison, 187), which was an information founded upon the 5th section of the Act of March 1, 1809, for an alleged importation into the United States of ten hogsheads of rum of the growth and manufacture of some colony or dependency of Great Britain, Mr. Justice Story says:

"It has been supposed, that the onus probandi is not thrown upon the claimant in proceedings in rem except in cases within the purview of the 71st section of the collection act of 2d March, 1799, ch. 123. And I incline to the opinion that the provision alluded to is but an extension of the rules of the common law. Be this as it may, wherever the United States make out a case prima facie, or by probable evidence, the presumption arising from it will prevail, unless the claimant completely relieve the case from difficulty. In the present case, I think the United States have prima facie maintained the allegations of the information. The burthen of proof of the contrary, therefore, rests on the claimant. He, and he only, knows the origin of the goods. He can trace his title backwards, and give the history of the manufacture, or at least of his own purchase. If he does not attempt it, but relies on the mere absence of conclusive, irrefragable proof, admitting of no possible doubt, he claims a shelter for defence, which the laws of the country have not heretofore beer, supposed to acknowledge. I observe that the owner, in this case professes to be a Spanish subject at the Havanna. He is, of course, in a situation peculiarly fitted to enable him to show that the rum was of domestic and not of foreign origin. The neglect so to do affords a presumption, that the case does not admit of a satisfactory explanation.”

Another case upon this subject is that of the Kate (2 Wallace, 350), in which the Supreme Court distinctly affirms the proposition of Mr. Justice Betts, in the court below, that, "when the evidence on the part of the Government creates

strong suspicions or well-grounded suspicions that the vessel seized, as being employed in the slave-trade, was fitted out or fitting out for that purpose, the decisions in this court have been uniform and distinct, that such evidence must produce her conviction and condemnation, unless rebutted by clear and satisfactory proofs on the part of the claimants, showing her voyage to be a lawful one."

In the Sarah (2 Wallace, 366) the principles of the preceding case (the Kate) are re-declared, and a vessel,-bound to Africa, under circumstances, individually not very strong, but collectively of weight, raising a presumption which there was no effort to overcome by explanation,--was condemned.

In the Weathergage (2 Wallace, 375), and in the Reindeer (2 Wallace, 383), there is reannouncement by the Supreme Court, of the rules of evidence which govern in subjects of this character. In the latter case, the Court says:

"Suits of this description necessarily give rise to a wide range of investigation, for the reason, that the purpose of the voyage is directly involved in the issue. Experience shows that positive proof in such cases is not generally to be expected, and for that reason among others, the law allows a resort to circumstances, as the means of ascertaining the truth. Circumstances altogether inconclusive, if separately considered, may, by their number and joint operation, especially when corroborated by moral coincidences, be sufficient to constitute conclusive proof. Applying that rule to the present case, we have no hesitation in coming to the conclusion, that the finding in the Court below was correct."

My opponent, when addressing the Court upon this branch of the case, dwelt with much fervor, upon what he deemed to be the outrage of requiring his clients to condescend to come into court, and make explanation of suspicious circum stances. He permitted us to be informed of the theory of morals, the ideas of personal honor, and chivalrous conduct, which, in his own office, control in such matters. He called attention to what he characterized as an old French proverb, which, when translated into English, runs: "He who excuses himself, accuses himself;" and intimated that this proverb was for him the measure which determined when it was proper for his client to be called upon to make ex

planation of damaging circumstances. Now, such a rule may be well enough in relations between my friend and his clients, but I respectfully submit that this court does not administer justice upon any such notion. The rule which prevails here is, that when the Government makes out a case of strong suspicion against a ship, or any other piece of property, he who claims it, as owner, must come into court and make all needed explanation, and purge away the suspicion, or else his property will be condemned. The learned counsel is as well aware of this rule as anybody else. One who has been employed exclusively, either in criminal trials, or common law cases, might well enough be misled as to the presumptions of law in an Admiralty Court, but not so the counsel for the claimants. He has reason to know that he who defends a forfeiture case in this tribunal, must prepare for trial upon the theory that the burden of proof will shift oftentimes upon very slight testimony, and that this will devolve upon him the affirmative of the question. A lawyer who conducts business here upon any other theory, will find the property of his clients slipping from under them and him, with fearful rapidity. But with this knowledge, and with a clear perception of the risk to be run, my learned friend declines to produce any testimony. What necessity drives him to adopt such a dangerous line of tactics? He could not hope either to dupe this court, or to induce it to change the settled rules of admiralty proceedings. Why, then, did he not vouchsafe explanation? Why did he not produce evidence which would even place this case within the theories of law for which he has so strenuously contended? Why did he not clear up the numberless mysteries, as he calls them, which hang around the Meteor? Mr. Forbes was in court; the captain of the Meteor was in court; every officer and man on board were within his reach, and yet the defence is dumb. The only explanation of this silence is, that speech, on their part, would be confession.

The Government insists that the presumptions of law are

Legal con

sequence of against the claimants of the Meteor, for another reason,

the claim.

ants failing

books and

papers, in compliance

tice served

to produce growing out of their conduct during the trial. Mr. Robert B. Forbes having testified, in effect that books were kept in with due no- Boston by Messrs. Forbes & Co., fully disclosing the affairs upon them. of the Meteor, and all that had been done respecting her, a notice was duly served on their counsel "to produce all books of account of R. B. Forbes, or J. M. Forbes, or J. M. Forbes & Co., having entries in relation to the ownership and expenses chargeable against the steamship Meteor, and also all letters written or received by R. B. Forbes, or J. M. Forbes, or J. M. Forbes & Co., or any other persons having interest in said steamship in relation to her building, equipment, chartering, sale, or disposal," which notice was marked Exhibit M.

To this notice, answer was made that they "had no books to produce;" and we are not without positive decision of the Supreme Court of the United States as to what the effect of such refusal is.

In the case of Clifton vs. the United States (4 Howard, 242), which was a libel of information founded upon a seizure of seventy-one cases cloths, imported into this country, and alleged to have been forfeited by fraudulent undervaluation in the invoice, the counsel for the Government, in the progress of the trial, and in pursuance of a notice given some months previously, called upon the claimants for the production of their ledger containing entries of each of the several invoices of the goods thus imported; also, for the production of their cash book, and for the entries therein relating to the said importation, to each of which calls, the counsel were answered that the claimants had no such books in court. Thereupon the court below instructed the jury that "to withhold testimony which was in the power of a party to produce, in order to rebut a charge against him, where it was not supplied by equivalent testimony, might be as fatal as positive testimony in support or confirmation of the charge; that if the claimants had withheld proof which