The Pizarro

APPEAL from the circuit court of the district of Georgia. The ship Pizarro, under Spanish colours, was captured on the 23d of 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 and 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 and 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 retained, in which her Spanish character is distinctly asserted. These documents were as follows: 1. A certificate of the Spanish consul at Liverpool, dated the 11th of 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 and Yonge. 3. A certificate of health, dated at Fernandina, the 20th of December, 1813. 4. A letter from Messrs. Hibberson and Yonge, of the 10th 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 and 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 the 11th of 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 and Yonge to buy a vessel in the United States, and the copy of a bill of sale from Messrs. S. and W. Hale, of New-Hampshire, by their agent Kimbell, dated the 24th of February, 1813, together with an order of the governor, of the 6th of March, 1813, naturalizing the ship, or permitting her to sail under Spanish colours. 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 farther proof. Mr. Winder, for the appellants and captors. 1. The proprietary interest in the claimants is not proved. 2. They are excluded from the benefit of farther proof by the spoliation of papers. The court below made no order for farther proof; yet it seems to have been admitted and considered by that court, and has erept into the transcript of the record. This was an irregularity, which will be corrected by the appellate tribunal, since the case on the original evidence was free from doubt or difficulty, and condemnation ought to have ensued. The spoliation of papers is not satisfactorily accounted for by the master and supercargo, who have prevaricated in their examinatios; and the spoliation being unexplained, inevitably leads to the exclusion of farther proof, and, consequently, to condemnation. In the case of the Two Brothers,a spoliation of papers, not being avowed with sufficient frankness by the master, was held to destroy his credit; and the defect of proof thereby induced, together with other circumstances, was deemed a cause of condemnation. In the present

a obligation was excluded from farther proof as to his share of the cargo. case, all the documents relative to the cargo were thrown overboard, and the excuse is the same which was rejected by the English court of admiralty in the Rising Sun. Destroying the papers which might show the Spanish character of the cargo could not diminish the danger of capture by Carthaginian privateers, since the ship would still appear to be Spanish, and this, together with the want of documentary evidence as to the cargo, would involve both in the same fate. This explanation of the suppression of the papers is, therefore, weak and futile, and such as cannot relieve the parties from the imputation of mala fides. 3. The claimants contend, that the cargo is exempt from confiscation by the Spanish treaty of 1795, which recognises the rule, that free ships make free goods.b But the term 'subjects,' in the 15th and 16th articles, must be understood of subjects who own a permanent allegiance to the crown of Spain, not of mere domiciled merchants, such as the claimants. A vessel found without the documents required by the 17th article is presumptively in the same situation as if she were without any documents and no equivalent proof can be admitted, because the pre-existing law of nations, and the practice of prize courts under that law, though they exempt neutral property from confiscation, refuse farther proof where there has been spoliation of papers mala fide, and condemn the property as enemy's. So, also, in this case, the Spanish character of the ship cannot be established, because the claimants have forfeited the privilege of farther proof by the misconduct of their own agents, and, consequently, cannot furnish the equivalent testimony required by the 17th article. The justifiable inference is, that the property in the ship and cargo belongs to the enemy, or to citizens of the United States trading with the enemy, which it will not be pretended is protected by the treaty.

c 1 Rob. 84.

d The Two Brothers, 1 Rob. 113. The Rising Sun, 2 Rob. 89. adjudication, and if 'equivalent testimony' is produced, restitution must follow, though the captors are exempt from costs and damages. Equivalent testimony is that which satisfactorily proves the same thing as that in which there was defective proof before; and the proof we have produced is testimony more than equivalent. The form of passport alluded to in the 17th article in not annexed to the treaty, nor is it to be found in the department of state. The Spaniards have relied on the good faith with which this country has always fulfilled its engagements; they have neglected the form, and relied on the spirit of the stipulation. The papers produced are, therefore, equivalent to a formal passport; and there is no rule by which they can be excluded, as there was no attending circumstance of fraud in the destruction of the original documents, and, consequently, the case is unaffected by that mala fides which precludes explanation from extrinsic testimony.

Mr. Key and the Attorney-General for the respondents and claimants. 1. Even the total want of papers is not a substantive ground of condemnation: it may be explained, as Sir William Scottc observes in the Betsey, alluding to the ancient French law. 2. Nor is the spoliation of papers conclusive to exclude father proof, and never has been so held by any tribunal whose decisions this court will respect.d In this case the stupid and artless manner in which the agents of the owners acted is a proof that the latter did not participate in, nor can they be made penally responsible for, the misconduct of the former. 3. If the owner of the ship was a domiciled subject of Spain, the ship, and, consequently, the cargo, is entitled to protection under the treaty. Commercial domicil stamps a national character for every purpose in the view of a court of prize; and if the operation of the treaty were confined to Spanish subjects (properly so called,) while it is extended to all persons inhabiting the United States, it would be unaccountably dencient in reciprocity. What fortifies the contrary construction is, that the term subjects is several times used indiscriminately in the treaty to signify the inhabitants of both countries. The purpose for which the documents prescribed by the treaty are required shows that a merely formal defect only authorizes detention and sending in for 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 farther 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 justly forfeited the claim which the owners might otherwise have to introduce the farther 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 re-examined 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 colour 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.