If the court below deny an order for further proof when it ought
to be granted, or allow it when it ought to be denied, and the
objection is taken by the party and appears on the record, the
appellate court can administer the proper relief.
But if evidence in the nature of further proof be introduced and
no formal order or objection appear on the record, it must be
presumed to have been done by consent, and the irregularity is
waived.
Concealment or spoliation of papers is not
per se a
sufficient ground for condemnation in a prize court. It is
calculated to excite the vigilance and justify the suspicions of
the court, but is open to explanation, and if the party in the
first instance fairly, frankly, and satisfactorily explains it, he
is deprived of no right to which be is otherwise entitled. If, on
the contrary, the spoliation is unexplained or the explanation is
unsatisfactory, if the cause labor under heavy suspicions or gross
prevarications, further proof is denied and condemnation ensues
from defects in the evidence which the party is not permitted to
supply.
Under the Spanish treaty of 1795, stipulating that free ships
shall make free goods, the want of such a sea letter or passport or
such certificates as are described in the seventeenth article is
not a substantive ground of condemnation. It only authorizes
capture and sending in for adjudication, and the proprietary
interest in the ship may be proved by other equivalent testimony.
But if, upon the original evidence, the cause appears extremely
doubtful and suspicious and further proof is necessary, the grant
or denial of it rests on the same general rules which govern the
discretion of prize courts in other cases.
The term "subjects" in the fifteenth article, when applied to
persons owing allegiance to Spain, must be construed in the same
sense as the term "citizens" or "inhabitants" when applied to
persons owing allegiance to the United States, and extends to all
persons domiciled in the Spanish dominions.
The Spanish character of the ship being ascertained, the
proprietary interest of the cargo cannot be inquired into unless so
far as to ascertain that it does not belong to citizens of the
United States, whose property, engaged in trade with the enemy, is
not protected by the treaty.
Page 15 U. S. 228
The ship
Pizarro, under Spanish colors, was captured on
23 July, 1814, by the private armed schooner
Midas,
Alexander Thompson, commander, on a voyage from Liverpool to Amelia
Island, and brought into the port of Savannah for adjudication.
Prize proceedings were instituted in the District Court of Georgia
against the ship and cargo, and a claim was duly interposed by
Messrs. Hibberson & Yonge, merchants, of Fernandina, Amelia
Island, for the ship and cargo, as their sole and exclusive
property. Upon the final hearing in the district court, the ship
and cargo were decreed to be restored, and this decree was, upon an
appeal to the circuit court, affirmed, and from the decree of the
circuit court the cause was brought by appeal to this Court.
It appears from the evidence that during the voyage, a package
containing papers respecting the cargo, directed to Messrs.
Hibberson & Yonge, was thrown overboard by the advice and
assent of the master and supercargo. The reason alleged for this
proceeding is that they were then chased by a schooner which they
supposed to be a Carthaginian privateer. The ship's documents,
however, were
Page 15 U. S. 229
retained, in which her Spanish character is distinctly
asserted.
These documents were as follows: 1. a certificate of the Spanish
consul at Liverpool, dated 11 September, 1813, certifying that the
Pizarro was a Spanish ship, bound to Corunna; 2. a
certificate from the same, of the same date, that Messrs. Hughes
and Duncan had shipped 250 tons of salt on board the
Pizarro for Corunna, consigned to Messrs. Hibberson &
Yonge; 3. a certificate of health, dated at Fernandina 20 December,
1813; 4. a letter from Messrs. Hibberson & Yonge of 10 January,
1814, to J. Walton, the navigator or sea pilot, ordering him to
sail to Liverpool; 5. a bill of lading, signed by Martinez, the
master, for the outward cargo; 6. the affidavit of Messrs.
Hibberson & Yonge that they had shipped the same cargo on their
own account, consigned to Messrs. Hughes and Duncan, &c.; 7.
the shipping articles from Amelia Island to St. Augustine or any
other port in Europe and back dated 11 January, 1814; 8. shipping
articles from Liverpool to St. Augustine and back to Liverpool,
without a date; 9. a license from the Governor of East Florida
authorizing Messrs. Hibberson & Yonge to buy a vessel in the
United States, and the copy of a bill of sale from Messrs. S. &
R. W. Hale, of New Hampshire, by their agent Kimbell, dated 24
February, 1813, together with an order of the governor of 6 March,
1813, naturalizing the ship or permitting her to sail under Spanish
colors.
Page 15 U. S. 230
In the district court, the cause was heard not merely upon the
ship's papers, and the testimony of the master and supercargo, (who
were twice examined in open court), but the claimants were also
permitted to introduce new proofs and testimony in support of their
claim, without any order for further proof.
Page 15 U. S. 239
MR. JUSTICE STORY delivered the opinion of the Court, and after
stating the facts, proceeded as follows:
A preliminary objection has been taken in the argument at bar to
the regularity of the proceedings in this cause, and it is urged
with great earnestness and force that the further proof was not
admissible except under an explicit order of the Court for this
purpose, and that the conduct of the master and supercargo in the
suppression of the documents of the cargo and in prevaricating in
their examination has
Page 15 U. S. 240
justly forfeited the claim which the owners might otherwise have
to introduce the further proof.
The proceedings in the district court were certainly very
irregular, and this Court cannot but regret that so many deviations
from the correct prize practice should have occurred at so late a
period of the war. The ship's papers ought to have been brought
into court and verified on oath by the captors, and the
examinations of the captured crew ought to have been taken upon the
standing interrogatories, and not
viva voce in open court.
Nor should the captured crew have been permitted to be reexamined
in court. They are bound to declare the whole truth upon their
first examination, and if they then fraudulently suppress any
material facts, they ought not to be indulged with an opportunity
to disclose what they please, or to give color to their former
statements after counsel has been taken, and they know the pressure
of the cause. Public policy and justice equally point out the
necessity of an inflexible adherence to this rule.
It is upon the ship's papers, and the examinations thus taken in
preparatory, that the cause ought in the first instance to be heard
in the district court, and upon such hearing it is to judge whether
the cause be of such doubt as to require further proof, and if so
whether the claimant has entitled himself to the benefit of
introducing it. If the court should deny such order when it ought
to be granted, or allow it when it ought to be denied, and the
objection be taken by the party and appear upon the record, the
appellate court can administer the proper relief.
Page 15 U. S. 241
If, however, evidence in the nature of further proof be
introduced and no formal order or objection appear on the record,
it must be presumed to have been done by consent of parties, and
the irregularity is completely waived. In the present case, no
exception was taken to the proceedings or evidence in the district
court, and we should not, therefore, incline to reject the further
proof even if we were of opinion that it ought not in strictness to
have been admitted.
The objection, which is urged against the admission of the
further proof would, under other circumstances, deserve great
consideration. Concealment or even spoliation of papers is not of
itself a sufficient ground for condemnation in a prize court. It is
undoubtedly a very awakening circumstance, calculated to excite the
vigilance and justify the suspicions of the court. But it is a
circumstance open to explanation, for it may have arisen from
accident, necessity, or superior force, and if the party in the
first instance fairly and frankly explains it to the satisfaction
of the court, it deprives him of no right to which he is otherwise
entitled. If, on the other hand, the spoliation be unexplained or
the explanation appear weak and futile, if the cause labor under
heavy suspicions or there be a vehement presumption of bad faith,
or gross prevarication, it is made the ground of a denial of
further proof, and condemnation ensues from defects in the evidence
which the party is not permitted to supply.
In the present case, there can be no doubt that there has been a
gross prevarication and suppression
Page 15 U. S. 242
of testimony by the master and supercargo. Nothing can be more
loose and unsatisfactory than their first examinations, and the new
and circumstantial details given upon their second examinations are
inconsistent with the notion of perfect good faith in the first
instance. The excuse, too, for throwing the packet of papers
overboard is certainly not easily to be credited, for the ship's
documents which still remained on board would, in the view of a
Carthagenian privateer, have completely established a Spanish
character. It is not, indeed, very easy to assign an adequate
motive for the destruction of the papers. If the ship was Spanish,
it was, as to American cruisers, immaterial to whom the cargo
belonged, for, by our treaty with Spain (treaty of 1795, art. 15.)
declaring that free ships shall make free goods, the property of an
enemy on board of such a ship is just as much protected from
capture as if it were neutral. The utmost, therefore, that this
extraordinary conduct can justify on the part of the court is to
institute a more rigid scrutiny into the character of the ship
itself. If her national Spanish character be satisfactorily made
out in evidence, the spoliation of the documentary proofs of the
cargo will present no insuperable bar to a restitution. Very
different would be the conclusion, if the case stood upon the
ground of the law of nations, unaffected by the stipulations of a
treaty.
Page 15 U. S. 243
Upon a full examination of the evidence, we are of opinion that
the Spanish character of the ship is entirely sustained, and
therefore the claimants are entitled to a decree of restitution.
Two objections have been urged against this conclusion: 1. that the
ship is not documented according to the requisitions of the treaty
with Spain, and therefore not within the protection of that treaty;
2. that it does not
Page 15 U. S. 244
appear that Mr. Hibberson (who is a native of Great Britain) has
ever been naturalized in the dominions of Spain, and therefore he
is not a subject of Spain within the meaning of the treaty.
As to the first objection, it is certainly true that the ship
was not furnished with such a sea letter, or passport, or such
certificates as are described in the 17th article of the treaty.
But the want of such documents is no substantive ground for
condemnation. It only justifies the capture and authorizes the
captors to send the ship into a proper port for adjudication. The
treaty expressly declares that when ships shall be found without
such requisites, they may be sent into port and adjudged by the
competent tribunal, and
"that all the circumstances of this omission having been well
examined, they shall be adjudged to be legal prizes unless they
shall give legal satisfaction of their property by testimony
entirely equivalent."
It is apparent from
Page 15 U. S. 245
this language that the omission to comply with the requisites of
the treaty was not intended to be fatal to the property. And
certainly, by the general law of nations as well as by the
particular stipulations of the treaty, the parties would be at
liberty to give further explanations of their conduct and to make
other proofs of their property. If, indeed, upon the original
evidence, the cause should appear extremely doubtful or suspicious
and further proof should be necessary, the grant or denial of it
would rest upon the same general principles which govern the
discretion of prize courts in other cases. But in the present case,
there is no necessity for such further proof, since the documents
and testimony now before us are, in our opinion, as to the
proprietary interest in the ship, entirely equivalent to the
passports and sea letter required by the treaty.
As to the second objection, it assumes as its basis that the
term "subjects," as used in the treaty, applies only to persons
who, by birth or naturalization, owe a permanent allegiance to the
Spanish government. It is, in our opinion, very clear that such is
not the true interpretation of the language. The provisions of the
treaty are manifestly designed to give reciprocal and coextensive
privileges to both countries, and to effectuate this object the
term "subjects," when applied to persons owing allegiance to Spain,
must be construed in the same sense as the term "citizens," or
"inhabitants" when applied to persons owing allegiance to the
United States. What demonstrates the entire propriety of this
construction is that in the 18th article of the
Page 15 U. S. 246
treaty, the terms "subjects," "people," and "inhabitants" are
indiscriminately used as synonymous, to designate the same persons
in both countries and in cases obviously within the scope of the
preceding articles. Indeed, in the language of the law of nations,
which is always to be consulted in the interpretation of treaties,
a person domiciled in a country and enjoying the protection of its
sovereign is deemed a subject of that country. He owes allegiance
to the country while he resides in it -- temporary, indeed, if he
has not, by birth or naturalization, contracted a permanent
allegiance -- but so fixed that, as to all other nations, he
follows the character of that country in war as well as in peace.
The mischiefs of a different construction would be very great, for
it might then be contended that ships owned by Spanish subjects
could be protected by the treaty although they were domiciled in a
foreign country with which we were at war, and yet the law of
nations would in such a predicament pronounce them enemies. We
should therefore have no hesitation in overruling this objection
even if it were proved that Mr. Hibberson was not a naturalized
subject of Spain; but we think the presumption very strong that he
had become, in the strictest sense of the words, a Spanish
subject.
The Spanish character of the ship being ascertained, it is
unnecessary to inquire into the proprietary interest of the cargo
unless so far as to ascertain that it does not belong to citizens
of the United States, for the treaty would certainly not protect
the property of American citizens trading with the enemy
Page 15 U. S. 247
in Spanish ships. There is no presumption from the evidence that
any American interest is concerned in the shipment. The whole
property belonged either to British subjects or to the claimants,
and we think the proofs in the cause very strongly establish it to
belong as claimed.
The decree of the circuit court is affirmed with costs.
Decree affirmed.
