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THE DOS HERMANOS, 15 U. S. 76 (1817)

U.S. Supreme Court

The Dos Hermanos, 15 U.S. 2 Wheat. 76 76 (1817)

The Dos Hermanos

15 U.S. (2 Wheat.) 76


In prize causes, the evidence to acquit or condemn must come in the first instance from the papers and crew of the captured ship.

It is the duty of the captors to bring the ship's papers into the registry of the district court and to have the examinations of the principal officers and seamen of the captured ship taken on the standing interrogatories.

It is exclusively upon these papers and examinations that the cause is to be heard in the first instance; if from this evidence the property clearly appears to be hostile or neutral, condemnation or restitution immediately follows; if the property appears to be doubtful or the case suspicious, further proof may be granted according to the rules which govern the legal discretion of the court.

If the parties have been guilty of gross fraud or misconduct or illegality, further proof is not allowed, and condemnation follows.

Although some apology may be found in the state of peace which had so long existed previous to the late war for the irregularities which had crept into the prize practice, that apology no longer exists, and if such irregularities should hereafter occur, it may be proper to withhold condemnation even in the clearest cases unless the irregularities are avoided or explained.

If a party attempt to impose upon the court by knowingly or fraudulently claiming as his own property belonging in part to others, he will not be entitled to restitution of that portion which he may ultimately establish as his own.

It seems that where a native citizen of the United States emigrated before a declaration of war to a neutral country, there acquired a domicile, and afterwards returned to the United States during the war and reacquired his native domicile, he became a reintegrated American citizen, and could not afterwards, flagrante bello, acquire a neutral domicile by again emigrating to his adopted country.

The claimants have no right to litigate the question whether the captors were duly commissioned; the claimants have no persona standi in judicio to assert the rights of the United States, but if the capture be made by a noncommissioned captor, the prize will be condemned to the United States.

Page 15 U. S. 77

This was the case of a Spanish schooner captured on 18 October, 1814, by Mr. Shields, a purser in the navy, commanding an armed barge in the service of the United States, ostensibly bound with a cargo of crates and drygoods on a voyage from Jamaica to Pensacola, but in fact in pursuance

Page 15 U. S. 78

of an asserted change of destination, then in prosecution of a voyage to New Orleans. The schooner was delivered up, and prize proceedings were instituted against the cargo in the District Court for Louisiana District. Upon the return of the monition, various claims were interposed for small adventures or parts of the cargo, but the only questions before the court arose upon the claim of Mr. Basil Green, calling himself a citizen of the Republic of Carthagena, who, by his agents, Mr. John F. Miller and Messrs. Lewis & Lee, asserted an ownership to nearly the whole of the cargo. Mr. Miller, in his affidavit annexed to the claim, states

"That he purchased the goods so claimed with moneys in his hands belonging to the claimant; that at the time of the purchase, he expected to have had an interest therein, but that on his arrival at New Orleans, the attorney in fact of the said claimant (meaning Mr. Lewis) refused to allow any such interest, and the deponent is therefore obliged to give up the same, and this deponent further saith that the facts contained in the said claim are true to the best of his knowledge, information, and belief."

At the hearing in the district court, the claim was rejected and the goods were condemned as the property of enemies or of citizens trading with the enemies of the United States.

Mr. Harper, for the appellant and claimant, argued upon the facts that the proprietary interest in the cargo was in the claimant, and that he (though a native citizen) had a right to change his domicile, and did change it bona fide to Carthagena, in South America,

Page 15 U. S. 79

where he was a resident merchant and in his neutral character had a right to trade with the enemy of his native country. He further suggested that the captor was not duly authorized to capture, there being no evidence that the armed barge, which made the capture, was duly incorporated into the navy.

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