United States vs. Hayward.

It is argued on behalf of the United States, that, notwithstanding the averment, the defendant is bound to prove the affirmative, because in his first plea he has expressly alleg ed, that the goods were imported in a neutral vessel, called the Christina. But this averment is mere inducement to a traverse of the averment in the first count. In general, the inducement to a traverse is not of itself traversable; much less is the matter of it to be proved in any issue founded upon the traverse. In the present case, the traverse was intended to deny the whole of the material averment in the count, and accordingly it concludes to the country. To be sure, it was open to the objection of being too broad in its terms, and not sufficiently pointed to the averment in the count, and perhaps also of putting in issue a negative allegation; but these objections were available only upon demurrer, and the attorney for the United States, by joining the issue, has waived the benefit of them. By the mere shape of the pleadings, therefore, the onus probandi is not thrown upon the claimant.

Is it thrown upon him by the rules of law applicable to a case of this nature? In general, the party claiming a forfeiture or penalty is bound to make out his case precisely. Nor is it a necessary exception, that it involves the proof of a negative allegation. For if the law presume the affirmative, the party may still be put to the proof of the negative. Therefore, if the charge consist in a criminal neglect of duty, as the law presumes the affirmative, the burthen of proof of the contrary is thrown on the other side." But in other cases, as where the negative does not admit of direct proof, or the facts lie more immediately with

9 Gilb. Ev. 146.---Wilson vs. Hodges, 2 East. R. 312.---Frontine vs. Frost, 3 Bos. and Pul. 302.

10 Williams vs. East India Company, 3 East. R. 192.--- Bull, N. P. 198.---Frontine vs. Frost, 3 Bos. and Pul. 302.

United States vs. Hayward.

in the knowledge of the defendant, he is put to his proof of the affirmative. And where the general facts, which constitute a forfeiture within a statute, are proved, and there are exceptions to its operation in particular cases, the better opinion certainly is, that the party, who would avail himself of the exception, must prove it; although from the forms of pleading it may be necessary to negative every exception in the indictment or information. Such negative allegation is, in such cases, to be repelled by affirmative proof on the other side. Therefore, in an action on the game laws, (which must negative that the party has any of the qualifications of the statute) it is not incumbent on the plaintiff to prove the disqualifications of the defendant; for this is negative matter, and the affirmative comes more properly in the defence."

Let us compare the present case with these rules. The act of 1809 prohibited all importations of goods from Bri. tish ports. The act of 1814 excepted importations from British ports in neutral vessels. From the evidence in the case it does not appear, that the plaintiffs knew in what vessel the importation was made, but this was a fact peculiarly within the knowledge of the defendant. Besides, the fact of importation being proved, from a British port into the port of Orrington, (which must be taken as a necessary preliminary, so far as respects this part of the charge of the court) the case fell within the general words of the act of 1809, and the exception, that they were imported in a neutral ship, was properly matter of defence. The law did not presume that the vessel was neutral in favour of the defendant. The charge was not against the defendant personally of a criminal neglect of duty, but against the

"Rex vs. Stone, 1 East. R. 637,-Frontine vs. Frost, 3 Bos. and Pul. 307, note b.-Rex vs. Crowther, 1 T. R. 125.- Spieres vs. Par'ker, 1 T. R. 141.

United States vs Hayward.

goods only, of a positive act, to wit, an illegal importation. And to call upon the plaintiffs to prove that the vessel was not neutral, was to require the proof of a negative allegation, which the plaintiff's had no means in their power to prove, and proofs of the contrary of which, if they existed, were within the reach of the defendant. I cannot distinguish the present case in principle from those, which have been decided on the game laws. There, the declaration must allege, that the defendant is not duly qualified, negativing specifically all the exceptions of the statute; and yet it seems admitted, that if the act of killing game be proved, the burthen of proof of his being within the exceptions of the statute is thrown on the defendant. It is perhaps not easy to reconcile with these decisions some of the general doctrines stated in some of the authorities. Such, for instance, as the doctrine, that wherever the charge involves criminality, the law will not easily suppose it; and therefore, if the charge contains a negative, the law will presume the affirmative without proof. If this were universally true, then, under the game laws, the proof of the not being qualified ought to be shewn by the plaintiff, for the charge is clearly of a criminal nature. Without pretending to reconcile all the dicta in the books, it seems to me, that in respect to negative allegations, the reasonable rule is, that the burthen of proof shall rest on the party, who holds the affirmative; and especially where the facts are peculiarly within his privity and cognizance and that this rule applies more strongly, where the party seeks to shelter himself under an exception, which was not incorporated into the original prohibition of the statute creating the offence. An exception may, perhaps, properly hold, where the charge substantially consists in a criminal neglect or omission of duty. It seems to me, therefore, that the burthen of proof, in the case at bar, that the vessel in which the

United States vs. Hayward.

goods were imported was neutral, lay on the claimant and not on the United States, and that in this respect the charge of the learned Judge was erroneous.

The second objection is, that the Court directed the Jury, that Castine was, under the circumstances, a foreign port. By "foreign port", as the terms are here used, may be understood a port within the dominions of a foreign sovereign, and without the dominions of the United States. The port of Castine is the port of entry for the district of Penobscot, and is within the acknowledged territory of the United States. But, at the time referred to in the bill of exceptions, it had been captured, and was in the open and exclusive possession of the enemy. By the conquest and occupation of Castine, that territory passed under the allegiance and sovereignty of the enemy." The sovereignty of the United States over the territory was, of course, suspended, and the laws of the United States could no longer be rightfully enforced, or be obligatory upon the inhabitants, who remained and submitted to the conquerors. Castine, therefore, could not, strictly speaking, be deemed a port of the United States; for its sovereignty no longer extended over the place. Nor, on the other hand, could it, strictly speaking, be deemed a port within the dominions of Great Britain, for it had not permanently passed under her sovereignty. The right which existed was the mere right of superiour force, the allegiance was temporary, and the possession not that firm possession, which gives to the conqueror plenum dominium et utile, the complete and perfect ownership of property. It could only be by a renunciation in a treaty of peace, or by possession so long and permanent, as should afford conclusive proof, that the territory was altogether abandoned by its sovereign, or had been irretrievably subdued, that it could be considered as incorporated into the dominions of the

12 [See Dodson's Adm. R. 451.]

United States vs. Hayward.

British sovereign. Until such incorporation, by a recapture or repossession, the territory would be entitled to the full benefit of the law of postliminy. If then by the term "foreign port" were intended a port absolutely within the dominions of a foreign sovereign, and incorporated into his realm, it might be very doubtful, if the direction of the Court could be sustained. But it seems to me, that taking the whole direction together, in reference to the first and third counts, it meant no more, than that Castine, being in the possession of the enemy by right of conquest, it was no longer to be considered as a port of the United States, with reference to the non-importation acts, but that, so far as respected the obligatory force of the laws of the United States, it was to be considered a "foreign port," or port extra ligeantiam reipublicæ. And in this view the direction may well, in point of law, be supported.

This leads me to the third objection, viz. that the bringing of the goods from Halifax to Castine was sufficient to all purposes, to entitle the United States to a verdict on the first and third counts, whereas the Court directed the jury to the contrary. Without stopping to examine, whether the single fact of bringing the goods from Halifax to Castine was of itself, " to all the purposes of this libel," sufficient to entitle the United States to a verdict on these counts, as the opinion guardedly expresses it, let us attend to the substance of the objection. It rests altogether upon the assumption, that Castine was to be deemed a port of the United States, in which the laws had their full operation, notwithstanding it was, at the time of the supposed importation, in the actual possession of Great Britain. This position, however, is utterly inadmissible upon every principle of the law of nations. By the conquest and occupation, the laws of the United States were necessarily suspended in Castine; and by their sur render the inhabitants became subject to such laws, and