The Pizarro

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 arid supercargo-in the suppression of the documents of the Cargó, arid in prevaricating in their examination, has *240 justty forfeited the claim which the owners might otherwise have to introduce the farther pr.

lne 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.w’wa voice 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.

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 farther 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 alr low 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.

*241 If, however, evidence.in the nature of farther proof be introduced, and no formal order or objection . ... . , , . appear on the record, it must be presumed to have been done by consent oí 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 farther 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 farther 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 circümstánce 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 labour under , heavy suspicions, or there be a vehement presumption of bad faith, or gross prevarication, it is made the ground of a. denial of farther 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 *242 of testimony by thé mastér and supercargo. Nothing can be more loose and unsatisfactory than their first examinations; and. the new and circumstantial details given upon their sééond 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 j 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 thé pápers. 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 sach 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 qf 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 casé stood upon the ground of the law of nations, unaffected by the stipulations of a treaty.

*243 Upon a full examination of the evidence we are of ©pinion 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; I. 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 *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.

Aá 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 legaj prizes, unless they shall give legal satisfaction of their property by tesr timony entirely equivalent.” It is apparent, from *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 farther explanations of their conduct, and to make other proofs of their property. If, indeed, upon the original evidence, the cause should appeár extremely doubtful or suspicious, and farther 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 farther 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, thát 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 co-extensive privileges to both countries; and to effectuate this object, the term “ subjects,” when applied to persons owjng 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 Remonstrates the entire propriety of this construction is, that in the 18th article of the *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 ofj 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 grept; 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 oyer-ruling 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 hád become, in the strictest sense of. thé 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 óf the United States; for the treaty would certainly not protect the property of American citizens trading with the ene *247 my 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.

f By the ancient French law, jpoiiatidn of papers was a substantive ground of condemnation, Thus, by the ordinances of 1543, art. 43, and of1584,-art. 70, the throwing orerboard of the charter *243 party, or other papers respecting the lading of the vessel, is declared cánse of condemnation. And by the ordinance of August, 1681, Dei Prises, art. 6, all vessels, on board of which no charter party, bills of lading, or invoices are to be found, are, together with their cargoes, 'declared good prize. Doubts having arisen v as to the application of this rule of evidence, in cases where - sufficient papers were found remaining on board, to furnish proof of the proprietary interest, the ordinance of the-6th Sept., 1708, was rendered ; by which it Was provided, that every captured vessel, from which papers have been thrown overboard, shall be good prize, together with the cargo, upon proof of this fact alone, without its being necessary to examine into the nature of the papers destroyed, nor to inquire whether sufficient papers were found remaining .on board to furnish' evidence that the ship and the goods of .her lading belonged to allies or friends. But this decision appearing too vigor* ous in practice, Louis XIV, in a rescript of the 2d February, 1710,' addressed to the Admiral of France, directed the council of prizes to apply the terms of this ordinance according to the peculiar circumstances, and the subsidiary proofs in each Case. Valin is of the opinion that, though this rescript escaped' the attention of the framers of the regula* tion ofthe 21st October, 1744, (the 6th article of wbick is' entirely conformable to the. ordinance of the 5th ¡September, 1708,) yet it ought to be applied to temper the rigonr of this article, according to circumstances.

Vafin,sur I’Ordonnance,* lb.

And, according to the authority of a celebrated modem jurist of France, such regulations should always be tempered by .wisdom and equity} they are im* properly styled laws ; and cssen* tially variable pro temporibus eb causis.

He cites in confirmation ' of his opinion, that even the want or suppression of papers is not conclusive, a sentence, of the council of prizes o.f the 27th Pe* *244 pember, 1779, restoring the captured vessel, notwithstanding some papers had been thrown overboard, it being proved that the papers were not of such a nature as to show the property enemy’s, and the master not being accessary to the spoliation. See the opinions of Jif.

Porialis, in the cases of the Pigou and the Statiru. I Crunch, 99. note, (a.)

Ib.

104. note, (a.) -The Spanish law as to spoliation, is conformable with that of France, and its application to the above case would pfobably have been urged by the counsel for the captors, upon the principle of reciprocity, had they not been precluded from resorting to that argument by a former decision of the. court, in the cáse of the Nereide, 9 Cranch, 388 .; a majority of the judges being of opinion that the principle of reciprocity or amicable retaliation, formed no rule of judicial decision in the courts of this country, until it was prescribed as such by the legislative will.

Id.

422 .

f It is obvious that the privilege of the neutral flag of protecting enemy’s property, whether conferred by tréaty or by the ordinances of belligerant powers, cannot extent to a fraudulent use of the flag to cover enemy’s property in the ship as well as the cargo. The Minerva, 1 Marriott's Aim. Dec.

235. The Cittade de Lisboa, 6 Rob.

358 . The Eendraught, Jb.

Note, (a.)

During the war of the American revolution the United States, recognising the principles of the armed neutrality, exempted by an ordinance of congress all neutral vessels from capture,- except such as were employed in carrying contraband goods, or soldiers, to the enemyit was held that this exemption did not extend-to a vessel which had been guilty of grossly unneutral conduct, in taking a decided part with the enemy, by combining with .his subjects to wrest out of the hands of the United States and of France the advantages they had acquired over Great Britain, by the rights ef war in the conquest of Dominica. By the capitulation of that island, all commercial intercourse with Great Britain was interdicted. In the case in .question, the vessel was purchased by neutrals in London, who supplied her with false and colourable papers, and assumed on themselves the ownership of the. cargo, for a voyage from London to Dominica. The continental court of appeals, in pronouncing the vessel and cargo liable to condemnation, observed, “ Had she been employed in a fair commerce, such as was consistent with the rights of neutrality, her cargo, though the property of an enemy, could not be prize; because congress had said, by their ordinance, that the'rights of neutrality should extend nrotee *248 tion to such effects and goods of an enemy. But, if the neutrality were violated, congress have not said, that such a violated neutrality shall give such protection:

Nor could they have said so, without confounding all the distinctions between right and wrong.” The Estern, 2 Dali.

36. The only treaties now subsisting' between the United States and foreign powers, containingthe stipulation that free ships shall make- free goods, are the above treaty with Spain, that of 1782 with the Netherlands, (which, it is presumed, still subsists, notwithstanding the changes in the political situation of that country,) and the treaties with the Barbary-states. The conventions between the latter and Christian powers always contain the stipulation, that the flag and pass shall protect the cargo sailing under it. In the memorable case of- the Nereide, 9 Cranch, 388 ., it was contended by the counsel for the captors; that this stipulation in the Spanish treaty, taken in connexion with the law of Spain, necessarily implied the converse proposition, that enemy’s ships make enemy's goods, which is not expressed in the treaty. But this argument .was overruled by the court, Who held that the treaty did not contain, either expressly or by implication, a stipulation that enemy’s ships shall make enemy’s goods.

Id.

418 . See Ward on the Relative Rights and Duties of Belligerant and Neutral Powers, 145.