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THE PIZARRO, 15 U. S. 227 (1817)

U.S. Supreme Court

The Pizarro, 15 U.S. 2 Wheat. 227 227 (1817)

The Pizarro

15 U.S. (2 Wheat.) 227


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

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