U.S. Supreme Court
Church v. Hubbart, 6 U.S. 2 Cranch 187 187 (1804)
Church v. Hubbart
6 U.S. (2 Cranch) 187
The words in one policy of insurance, "the insurers do not take the risk of illicit trade with the Portuguese," and in another, "the insurers are not liable for seizure by the Portuguese for illicit trade," are substantially the same.
The right of a nation to seize vessels attempting an illicit trade is not confined to its harbors, or to the range of its batteries. Its power to secure itself from injury, may certainly be exercised beyond the limits of its territory. This right does not appear to be limited within any marked boundaries. If the means used by a nation for this purpose are such as unnecessarily to vex and harass foreign lawful commerce, foreign nations will resist their exercise. If they are such as are reasonable and necessary to secure their laws from violation, they will be submitted to.
Foreign laws are well understood to be facts, which must, like other facts, be proved to exist before they can be received in a court of justice. The sanction of an oath is required for their establishment unless they can be verified by some other high authority, which the law respects no less than the oath of an individual.
Consuls are officers known to the laws of nations, and are entrusted with legal powers. But they are not entrusted with the power of authenticating the laws of foreign nations. They are not the keepers of those laws; they can grant no official copies of them.
It is very truly stated that to require, respecting laws or other transactions in foreign countries, that species of testimony which their institutions and usages do not admit would be unjust and unreasonable. The court will never require such testimony.
Foreign judgments are authenticated 1. by an exemplification under the great seal; 2. by a copy proved to be a true copy; 3. by the certificate of an officer authorized by law, which certificate must itself be properly authenticated. These are the usual, and appear to be the most proper, if not the only, modes of verifying foreign judgments. If they be all beyond the reach of the party, other testimony, inferior in its nature, might be received.
A certificate of the proceedings of a foreign court under the seal of a person who styles himself the Secretary of Foreign Affairs of Portugal is not evidence.
If the decrees of the colonies are transmitted to the seat of government and registered in the Department of State, a certificate of that fact, under the great seal, with a copy of the decree authenticated in the same manner, would be sufficient prima facie evidence of the verity of what was so certified.
Interpreters are always sworn, and the translation by a consul, not on oath, can have no greater validity than that of any other respectable man.
In the Circuit Court of Massachusetts, John Barker Church, Jr., instituted an action against the defendant on two policies of insurance, whereby he had caused to be insured $20,000 the cargo of the brigantine Aurora, Shaler, master, at and from New York to one or two Portuguese ports on the coast of Brazil, and at and from thence back to New York. At the foot of one of the policies was the following memorandum: "the insurers are not to be liable for seizure by the Portuguese for illicit trade." In the body of the other policy was inserted the following: "N.B. The insurers do not take the risk of illicit trade with the Portuguese."
The Aurora cleared out for the cape of Good Hope, the plaintiff being on board as supercargo. She proceeded to Rio Janeiro, where she remained some days, and under a permit some of the cargo was sold, and afterwards sailed for Para on the coast of Brazil, and in company with another vessel came to anchor about four or five leagues from the land. The destination of the vessel after she left Rio Janeiro was by order of the plaintiff kept secret, and it was said by the master at the time that the anchoring off the River Para was for wood and water, which were actually wanted. chanrobles.com-red
The plaintiff went on shore in a boat, asserting that he left the Aurora for the purpose of procuring a pilot, to take the vessel up for wood and water and to sell the cargo if permitted. Mr. Church was arrested when on shore, and imprisoned, and the Aurora and the vessel in her company were taken possession of by a body of armed men and carried into Para.
It was in evidence, that the trade to Para was prohibited, although by bribery of the Portuguese officers cargoes were frequently sold there, the vessels which brought them alleging on arrival a pretense of want of repairs, want of water, or something of that kind. chanrobles.com-red
The vessel and cargo were condemned by the governor of the capital of Para, as having been seized for illicit trade. The defense against the claims of the plaintiff on both policies was that the loss occurred from a prohibited or illicit trade, for which the defendant, as an insurer, was not liable according to the exception in both policies.
To prove that the trade to Para was illicit, the defendant offered a copy of a law of Portugal, passed 18 March, 1605, entitled "a law by which foreign vessels are prohibited from entering the ports of India, Brazil, Guiana, and Islands, and other provinces of Portugal." The terms of this law expressly prohibit the trade, and subject the vessel and cargo, violating its provisions, to seizure and forfeiture, and the persons engaged in the same to the punishment of death. [Page 190 intentionally omitted.] chanrobles.com-red
The law was certified in the following term:
"I, William Jarvis, Consul of the United States of America in this City of Lisbon, &c., do hereby certify to all whom it may or doth concern, that the law in the Portuguese language, hereunto annexed, dated 18 March, 1605, is a true and literal copy from the original law of this realm of that date, prohibiting the entry of foreign vessels into the colonies of this kingdom, and as such, full faith and credit ought to be given it in courts of judicature or elsewhere. I further certify that the foregoing is a just and true translation of the aforesaid law."
"In testimony whereof, I have hereunto set my hand and affixed my seal of office, at Lisbon, this 12 April, 1803."
Another law was produced, made on 8 February, 1711, which provides for the punishment of the officers of the government who shall suffer the law of 1605 to be violated and for the detection and punishment of offenders. This law was certified in the same manner. chanrobles.com-red
To establish the defense that the Aurora and cargo were seized and condemned for illicit and prohibited trade, the defendant offered in evidence "the sentence of the Governor of the capital of Para on the brig Aurora."
"In consequence of the acts of examination made on board the brig Aurora, questions put to Nathaniel Shaler, who it is said is the captain of her, and to those said to be the officers and crew, and according to the act of examination made in the journal annexed, which they present as such passport and dispatches, together with other papers; I think the motives hereby alleged for having put into a port of this establishment, are unprecedented and inadmissible, and the causes assigned cannot be proved. I therefore believe it to be all affected for the purpose of introducing here commercial and contraband articles of which the cargo is composed (if there are not other motives besides these, of which there is the greatest presumption), 1. because it cannot be supposed than an involuntary want to water and wood would take place in thirty-four days voyage from Rio Janeiro -- where the said vessel was provided with every necessary, until she passed the Salinas, without alleging and proving an unforeseen accident, when there was none in sixty-four days passage from New York to said port of Rio Janeiro, and it appears by these papers and by the information
from the commanders of registry or guard at the Salinas, and it is not to be believed that they did not see that land at the hour of the morning which they passed it on the 9th day of the present month, as well as they were seen; and when it ought to be supposed that they should have solicited immediately the remedy for such urgent necessity as they wish to make it; 2. because, after they were in sight and opposite to the Village of Vigia on the 12th of the said month, having also got clear and passed safely by the shoals, and after by violent means having boarded and obliged different vessels to board him, it does not appear that any of those that were brought to the village as prisoners, alleged the want of water as a motive for coming in; nor that they had made the least endeavors, or demanded to be supplied with such want; it being very well known on the contrary, that all their endeavors were to obtain Pratic, and to proceed to this capital, alleging the pretext of being leaky, but which, from the examination made on board by the masters of the arsenal, did not appear to be true; 3. and finally because in the space of eight or ten days from the time they passed the cape of St. Agostinho till they passed by the Salinas, should their want of water be true, they might have supplied themselves with it, in any of the numerous ports on the northern coast of the Brazils till that of Pernambuco, or they would have directed their course directly for the destined port of Martinico and Antilles as they say; it appearing very strange they should come to sound all the coast, the excuse of the winds not being admissible. But by the same informer's journal it appears that from 28 May, when by observation they were northward of St. Agostinho, they had constantly the trade winds upon the quarter until the 3d instant, with which they steered always along the coast, when they ought only to have gone to this latitude to have continued the same winds to the said islands, and to have got clear of the calms and currents of the coast; if it had not been their only intention to look for the same coast and to this port for business and smuggling, which he could not perform at the Rio Janeiro for the reason which is specified in the letters annexed to folio _____, it being presumed that the master of this brigantine
ought to be understood as having the same disposition as that of the schooner Four Brothers, with which he sailed and fell into conversation."
"Therefore I command that in conformity to the law made on 5 October, 1715, the observance of which has been so repeatedly recommended and revived to me by government, let their papers be brought to the house of justice to be continued as prescribed in the same law and laws of the kingdom (they remaining in prison until the final decision), for which they gave cause by the hostile means which they practiced. Palace of Para, 27 June, 1801."
"D. FRANCISCO DE SOUZA COUTINHO"
"On 27 June, 1801, the deeds were given to me by his Excellency the Governor and Captain General of State, D. Francisco de Souza Coutinho, with his sentence ut supra, of which I made this term, and I, Joseph Damazo Alvares Bandiera, wrote and finished the same."
"It is hereby determined by the court, &c., that in the certainty of it being affected and unprecedented that the brig Aurora captain Nathaniel Shaler putting into this port as in the decision folio 43; as it is justly declared and adopted for the same incontestable causes there specified, that in consequence thereof, and of the respective laws thereto applying, she ought to be condemned, they concurring to convince that it was the project of the said captain (if he had no other reason beside these, of which there is suspicion) to look for a market for the merchandise which were found, not only as it appears by the letters hereunto annexed, but in the society and conversation in which he sailed with the schooner Four Brothers, which captain is convicted, by very clear proofs, of such an intention, and the same specious pretext with which he pretends to color the cause for putting into this port, manifesting in this manner that he was not ignorant of the laws of the state concerning coming in and doing business therein. "
"Therefore they declare him to have incurred the transgression of the order folio 1 to 107, and decree of 28 March, 1605, and they order that after proceeding in the sequester on the vessel and cargo, to send the captain as prisoner, with the necessary information by the competent secretary, that his royal highness may be pleased to determine about him, as may be his royal pleasure."
"Para, 27 June 1801. D. Jono de Almeida de Mello de Castro, of the council of state of the prince regent our lord and his minister and Secretary of State of the foreign affairs and War Departments, &c., do hereby certify that the present is a faithful copy taken from the original deeds relative to the brig Aurora. In witness whereof I order this attestation to be passed and goes by me signed and sealed with the seal of my arms. Lisbon, 27 January, 1803."
"D. JONO DE ALMEIDA DE MELLO DE CASTRO"
These proceedings were certified as follows:
"I, William Jarvis, Consul of the United States of America in this City of Lisbon, &c., do hereby certify unto all whom it may concern, that the foregoing is a true and just translation of a copy from the proceedings against the brig Aurora, Nathaniel Shaler master, at Para in the Brazils, which is hereto annexed and attested by his Excellency Don Jono de Almeida de Mello de Castro, whose attestation is dated 27 January, 1803."
"In testimony whereof, I have hereunto set my hand and affixed my seal of office in Lisbon this 16 April, 1803."
To the admission of this evidence the plaintiff objected, chanrobles.com-red
but the objection was overruled by the circuit court, and the plaintiff took a bill of exceptions, upon which the case was brought before this Court, the jury in the circuit court having found for the defendant.
The opinion of Mr. Justice Cushing, which came up with the record, was the following:
"The first objection to this action is that it is brought in the name of John B. Church, Jr., when the contract was not made with him, but with his father, John B.
Church. But from the evidence of Mr. Samuel Blagge, it is plain the policy was made for the son, in pursuance of the express application and direction of the witness. The property of ship and cargo is proved to be in the plaintiff."
"The principal question is whether the brig Aurora and cargo (insured by these policies) were seized by the Portuguese for (or on account of) illicit trade? If so seized, the insurer is not liable; if not seized for illicit trade, the defendant must answer for the sums by him insured."
"The brig went to Brazil for the purpose of trade -- first to Janeiro, where, with leave, part of the cargo was sold; then proceeded to Para. It is pretty well understood, that a trade there is illicit and prohibited, unless particular license can be obtained; sometimes it is obtained, sometimes not, and in want of leave seizures have been made."
"It seems that the seizure and sequestration which took place at Para, were on account of attempting to trade there. The sentence of the government of Para appears to me decisive as to this point, that there was an attempt to trade, and that was against the effect of the Portuguese law referred to in the decree. It is contended that this vessel was not within the Portuguese dominions, and therefore not in violation of any of their laws."
"It appears the vessel was hovering on the coast of Para, and anchored upon that coast, and that the plaintiff, with others from the vessel, went on shore in the boat among the inhabitants."
"It is said that this sentence has no appearance of an admiralty decree, but there does not appear any other authority at Para to condemn for illicit trade, than that of the governor. The governor does undertake to decide, and I do not know that he had not authority, according to their modes of colony government, so to do. One thing seems certain -- that is that the property was seized and sequestered and taken away by
the governor's sentence on account of prohibited trade, in part at least."
"As to a design against the country, it is said there were suspicions. It does not seem probable that the government of Para could seriously think the country endangered by a few Americans coming with a cargo for trade."
"I am therefore of opinion that it falls within the meaning and true intent of the exceptions in the policies, viz., 'that the insurers should not be liable for seizure by the Portuguese for illicit trade,' and that you ought to find for the defendant. "