CHURCH v. HUBBART

Stockton, for plaintiff in error, contended that the circuit court had erred, 1st, on the general merits of the case; and 2d, in admitting improper evidence to go to the jury.

1st. As to the merits. The exception in the policies is of the case of seizure for illicit trade, not of seizure for an attempt to trade. The latter case is within the policy and is one of the risks which the underwriters have taken upon themselves. Actual trade, and a consequent seizure therefor, must both concur, in order to protect the underwriters. The evidence stated in the record, if it proves any thing, does not show that the seizure was for any act of illicit trade. To make the most of it would be to say, that it was a seizure on suspicion. But it rather seems to be an act of violence, a marine trespass, not warranted even by the law which the defendant has produced. It appears in the record that the trade has been, generally speaking, interdicted ever since the year 1591, and that this fact was known to both parties. Every general history of the country proves the general prohibition of the trade, but that it is sometimes permitted. The intent to trade is not an illicit trade. The real import of the policy is this, "we know the general prohibition of the trade, but that permission is sometimes granted. Go on with the voyage, try to get permission, but see that you do not trade without leave; if you do, it is not at our risk. Underwriters are always presumed to know the nature of the voyage, and the course of the trade. "In general," says Lord Mansfield, in Pelly v. Royal Ex. Insurance Co. Park. 42, 43, (47.) "what is usually done by such a ship in such a " voyage, is understood to be referred to by every policy, "and to make a part of it, as much as if it were expressed." "The same principle is recognized in Noble v. Kennoway, Park. (49.) 44. — Doug. 512.

No objection can be taken to the policy because it was upon a voyage for a trade illicit by the laws of Portugal, although a policy upon a trading voyage made illegal by our own laws, might be vacated. — Park. 268. (236.) Delcnada v. Motteux. — Planche v. Fletcher, and Lever v. Fletcher.

The intention to trade can never be construed an actual trading. The difference between the intent and the act, in the case of deviation, is taken in Park. 359. (314.) Foster v. Wilmer, and Carter v. Royal Ex. Insurance Co.

If the intention could be taken for the act, the vessel might have been seized by the Portuguese on the very day she left New-York, and the underwriter would be discharged.

The sentence does not go on the ground of illicit trade. At most it only expresses a suspicion. Besides the vessel was seized five leagues from the land, at anchor on the high seas. The seizure was not justified by their own laws. She was not within their territorial jurisdiction. By the law of nations territorial jurisdiction can extend only to the distance of cannon-shot from the shore. Vattel, B. 1, c. 23, § 280. 289. — A vessel has a right to hover on the coast. It is no cause of condemnation. It can, at most, justify a seizure for the purpose of obtaining security that she will not violate the laws of the country. The law which is produced forbids the vessel to enter a port, but does not authorise a seizure upon the open sea. — Great-Britain, the greatest commercial nation in the world, has extended her revenue laws the whole length of the law of nations, to prevent smuggling. But she authorises seizures of vessels, only within the limits of her ports, or within two leagues of the coast; and then only for the purpose of obtaining security. 4 Bac. Ab. 543.

The reason that the supercargo went on shore was the want of water; and the evidence proves that the want was real. For this purpose he had a right to go on shore, and although he thereby placed his person in their power, yet that did not bring the vessel into port.

The sentence is not evidence of the facts which it recites. It is conclusive only as to the very point of the judgment. Peake's Law of Evidence, 46, 47. It shows on its face that the seizure was made, not for an actual trading, but on suspicion of an intention to trade.

2d. The circuit court erred in admitting the evidence which was objected to.

1. It did not appear to be the sentence of a court having competent jurisdiction. 4 Rob. 55. The Henrick and Maria. "A legal sentence must be the result of legal "proceedings, in a legitimate court, armed with competent "authority upon the subject matter, and upon the parties "concerned; a court which has the means of pursuing "the proper inquiry and of enforcing its decisions."

The court may perhaps take judicial notice of the proceedings of a court of admiralty, but this cannot apply to the sentence of a governor. The circuit judge declared the sentence to be evidence, because he did not know that there was any other tribunal. But the jurisdiction of the court ought to appear. The laws which are produced do not show the authority of the governor to condemn. — Peake, L.E. 47, 48.

2. But the laws themselves are not sufficiently authenticated. They are only certified by a secretary of state with his sign manual and private seal. They ought at least to be certified under the great seal. A private act of this country must be proved by a sworn copy compared with the roll. So of foreign laws. They must be proved as facts, by testimony in court. 1 P. Williams, 431. Freemoult v. Dedire. Cowp. 174. Mostyn v. Fabrigas. 2 East. 260, 272, 273. Collet v. Lord Keith.

It appears by the testimony in the record that the vessel was not seized for an attempt to trade, but captured on suspicion of being an enemy, or as a spy sent by the French.

3. The sentence is not duly authenticated. Is a secretary of state a proper certifying officer of a judgment of a court in the colonies? To ascertain what is a sufficient mode of authentication, the principles of the common law must be our guide. By that law there are only three modes. 1. Exemplification under the great seal. 2. A sworn copy proved by a person who has compared the copy with the original. 3. The certificate of an officer specially authorised ad hoc.

It has not even the seal of the court. If the court had no seal, that fact ought to have been proved. Why was it not certified under the great seal? One nation will take notice of the national seal of another. Why was not the American consul sworn? Of what validity is the certificate, or the seal of a consul? Why have they not produced a sworn copy of the proceedings? An American consul is not a certifying officer. The court can take no more notice of his certificate, than of that of a private person. There is no case to be found in a court of common law where it has ever been received as evidence. Buller, N.P. 226, 227, 228, 229. 10 Co. 93, Leyfield's case. 9 Mod. 66, Anon. 1 Mod. 117, Greene v. Proude, 2 Show. 232. Hughs v. Cornelius, 2 Lord Raym, 893. Green v. Walker, Peake, L.E. 48.

Adams, for defendant.

From the papers which have been read to the court, and from the statement of the case made by the gentleman who opened the cause in behalf of the plaintiff in error, it becomes unnecessary to make any preliminary observations to possess the court of the questions between the parties now to be decided. The verdict of the jury, and the sentence of the court being in favour of the defendant, the underwriter on the two policies, the judgment, it is presumed, will of course be affirmed, unless the objections stated against it by the plaintiff in error should be deemed by this court sufficiently substantiated, and of such a conclusive character as necessarily to requre a reversal. It is therefore incumbent on us, only to meet the exceptions taken by the plaintiff's counsel against the judgment of the circuit court; which exceptions are two: 1st, against the construction given by the circuit judge to the policies; and 2d, against the evidence admitted for the defendant; the one of substance, the other of form. The one involving the merits of the only question upon which the issue of this litigation can depend, and the other only pointed at the weight and authenticity of the evidence admitted by the circuit court. The one founded on the position, that the defendant has no good bar to the claim of the plaintiff against him; the other resting on the basis, that strong and unanswerable as his defence may be, the proof that supports it was not clothed with that official solemnity which could alone entitle it to credit, and that it wanted that most powerful of all tests of truth — a bit of sealing-wax.

I shall ask the liberty of inverting the course of argugument adopted by the gentleman who opened the cause, because in point of time the objection against the admission of the evidence naturally precedes the discussion on its legal operation. He certainly was aware of this, and it is presumable that he himself inverted the natural order of his argument, only because he wished to reserve for the last, the point upon which he placed his principal, perhaps his only reliance for success. A similar motive however must produce the contrary effect upon me, and induce me to return into that direct road, that broad high-way, from which he deviated, only because the winding path gave him a shorter passage to the term at which he was desirous to arrive. For my own part, though confident, as before the decision of this court I ought to be, that the objections against the evidence are not so powerful as that gentleman's eloquence represented them, though persuaded that this court will concur rather with the opinion of the circuit court, than with that of the plaintiff's counsel, even upon this point, yet I will candidly confess that I feel more sanguine upon the question to the merits, than upon the question to the forms; for if the evidence can but shew its face in the cause, we think it must require the utmost refinements of ingenuity to raise the shadow of a doubt upon its operation.

The objection against the evidence divides itself into two branches:

1. Against the two Portuguese laws.

2. Against the sentence of condemnation by the governor at Para.

Before I examine the reasons and authorities upon which these papers are respectively questioned, I must make one remark, which will be alike applicable to the attacks upon both. All the arguments by which they are assailed, rest only upon the rules and not upon the principles of evidence. I do not mean to say that the rules of evidence are not founded upon principles. I know them to be founded upon the soundest principles; but the operation of the rule which is positive, and, in some sort, arbitrary, is not always conformable to the principles upon which it is founded. Thus written evidence is in its nature of superior weight to mere parol testimony, for verba volant, litera scripta manet; words barely spoken are fleeting, but when written become permanent. From this principle is derived the rule that parol testimony shall not controul the operation of a written instrument: yet it often happens from various causes, that parol testimony is stronger than written evidence, and in such cases it is the practice of all courts to receive it in contradiction to the general rule. Thus, as all the positive rules of evidence are derived from some principle, so in their operation they are always governed by this principle at once of reason and of humanity, that no man can be required to perform impossibilities. Hence all the positive rules and gradations of evidence are subject to this exception, and both in courts of law and of equity no party can be required to produce evidence of a higher order than he can obtain. It cannot possibly be necessary to produce the authorities, with which the books teem, of cases in which evidence of a lower order has been admitted, when the higher evidence, appropriate to the cause, was not accessible to the party. But if the principle itself be recognized, I trust it will be in our power to shew that the defendant comes within the rule of its application, and that this testimony was the best which it was in his power to obtain.

These observations will furnish an answer to the rules and authorities which the gentleman adduced in support of his objections, both against the laws, and against the sentence of condemnation.

First as to the laws.

We are told that foreign laws must be proved; and what the foreign law is; and the authorities alleged in support of this assertion, are, Cowp. 174. and 2 East, 260, 273.

This we are not at all disposed to deny; though reasons might be given why the rule ought not to be admitted, in its fullest latitude, in this country.

This question is, however, quite immaterial to us in the present case; because we did adduce proof of these foreign laws, and the only, point to settle is, whether it was good and sufficient proof.

It is said that foreign laws must be put on the footing of private laws, and must be authenticated, 1st, by an exemplification under the great seal; or, 2d, by a sworn copy from the rolls.

To this we answer,

First, That the rules for the proof of foreign laws, ought not to be put upon the footing of private laws; for this plain reason, that every subject can obtain, of right, an exemplification under the great seal, or a sworn copy, from the rolls, of a private act of parliament. But it is not the practice of all foreign governments to issue exemplifications under the great seal; or to keep their laws in rolls of parchment. It is not the practice, for instance, in Portugal, as is apparent from these laws themselves. The practice appears to be to register the laws in sundry public offices, and one of them, the comptroller of the exchequer, is required to send copies to the possessions abroad; but it does not appear that any subject, much less any foreigner, can obtain copies of them by application to any officer whatsoever. The first law is dated at Valladolid, was made by a king of Spain, while Portugal was under the dominion of that kingdom, and was a public law. To require, therefore, an exemplification, or a copy from the rolls of this, would be as if a party, in these United States, should be called upon to produce an exemplification, under the great seal of England, or a copy from the rolls of parliament, of a public act of parliament, passed in the reign of queen Elizabeth, in order to prove it a law in this country. A copy from the rolls, therefore, where there are no rolls to copy; an exemplification under the great seal of Portugal, of records in the chancery of Spain, are impossible things; a party can never be required to produce them, and the authentication of these foreign laws, at least, cannot be put on a footing with that of private statutes in Great Britain.

Yet even if the rules relative to private statutes were applicable to the case, we should certainly come within the exceptions which have been allowed in the British courts. The rule itself is founded rather on a quaint and artificial process of reasoning, than upon a fair and liberal principle; and when the object of a private statute is in any degree public, or is of a nature to be notorious, the English judges do relax from the rigid muscle of the common law, and receive the printed statute-book as evidence. 2 Bac. Ab. 609, Gwillim's Edition, and the authorities there cited.

If the principles recognized in these authorities are just, they apply eminently to this case. Here is a law, public in its nature, known to all the world for these two centuries, and confessedly known to both the parties in the present action. On principle, therefore, a printed copy would be admissible; and if, by the reasoning of the English judges, the printed statute-book derives authenticity from the types of the king's printer, surely this copy of a foreign law must be allowed to derive more authenticity from the official certificate of so respectable an officer as a consul.

But with all submission to the opinion of the court, I contend, that under the circumstances of this case, the certificate of the consul was the best evidence, which in the nature of the thing could be produced, of these laws. To whom else could the parties have applied? Even in England, a copy of public acts of parliament, from the rolls, would not be furnished to individual applicants. In Portugal there is every reason to presume no such copy could be obtained. As it respects the first law, made by a king of Spain two hundred years ago, it may be considered as demonstrated. The jealousy of the country with regard to any intercourse between foreigners and their colonies, might, and probably would, have made it dangerous for any foreigner to apply for a copy, under the great seal, or with any extraordinary authentication, of these laws. And after all, when obtained, would the great seal of Portugal, or the signature of the chancellor of Portugal, have been so well known to this court as the seal and signature of an officer of our own government residing there?

We are asked for an office copy, certified by an officer entrusted ad hoc. But why is credit given to office copies? Because the officer is publicly known; because his business to keep the records is equally notorious, and courts of justice will take notice of it. Surely this can give no credit to the office copy of a Portuguese clerk or secretary. Surely neither the name, nor office, nor trust, nor duty of a scribe in the chancery at Lisbon, can be so well known to this court, as the consul, commissioned by the executive government of our own country.

We are called upon for a sworn copy; but by whom should the affidavit be made? By the consul, said the gentleman; — And before whom? This he did not say, but it could be only before a Portuguese magistrate; — And who is to authenticate the magistrate's certificate of the oath? The consul. So that in the end the authenticity of the whole transaction must depend upon the consul's certificate. The magistrate, who administers oaths, is a person of notoriety to his own government; but to make him equally known to the tribunals of foreign nations, requires, in general practice, the attestation of some officer recognized by the law of nations. Such an officer is a consul; and where no public agent of a higher rank from the same nation is resident, I cannot imagine any attestation of the laws of one country, to the courts of another, so well entitled to credit, as that of the consul from the nation to whose courts the attestation is to be made.

I have observed that by the Portuguese practice the laws are registered, and not enrolled. There is an express authority that a copy, attested by a notary public, of an agreement registered in Holland, may be given in evidence; and if a public notary's certificate is sufficient to authenticate a registered agreement, I see not why a consul's certificate should not be equally well adapted to authenticate a registered law. 12 Viner, 123.

Let me add, that in this country there are peculiar reasons for unscrewing the most rigorous positive rules for the forms of evidence, in these cases where transactions beyond seas are to be ascertained. The intercourse of European nations with one another is carried on by a continual and almost daily interchange of mails. In six weeks a communication and its return may be accomplished from one extremity of Europe to the other. Defect of forms in obtaining evidence may be repaired within the term of a court in session, or at most from one quarterly term to another. An accident by the loss of papers transmitted by the post-offices seldom happens; and happening, can speedily be remedied. The delay and expense to the party is not necessarily of material importance to him, even if he is compelled to renew an experiment to obtain papers properly authenticated. The same inflexibility of rule must, in the nature of things, much more powerfully check and retard the pace of justice in this country. There is no regular and periodical communication of mails; for instance, between the United States and Portugal. Instructions to get evidence can be sent, and answers received only by the occasional conveyance of commercial navigation. — Six months, on an average, is the shortest period of time within which answers to letters can be received. If any of the accidents of the seas happen to the orders transmitted, or to the documents returned, the time requisite to receive them is more than doubled. This court, the court of final resort for most cases in which these rules of evidence can apply to the matter in dispute, sits but once a year. It is remote from many of the cities where causes requiring evidence from abroad must in general arise. If an end of litigation is an object of importance to the public welfare; if it be of the greatest interest to all individual suitors, every inducement, public and private, must combine to prescribe rules of facility, and not rules of rigour for the mere formalities of evidence to be brought from beyond the Atlantic. If then the unbending maxims of the common law really required for foreign laws a different authentication than the certificate of a consul, there would still be the most cogent reasons for admitting it as sufficient in this country.

The same reasons apply still more forcibly to the sentence of the Governor of Para.

How is it possible to require that a suitor should produce an exemplification, a sworn copy, or an office copy, of a document, when he is forbidden, on pain of death and confiscation, to set his foot in the country where alone those modes of authentication could be obtained? The practice of the Portuguese government appears upon the face of these papers. The Governor transmits to the Secretary of State at Lisbon the original sentence of condemnation, with the proceedings upon which it was founded. And the Secretary of State, who remains in possession of these original papers, furnishes, under his hand and seal, a copy of them to the public agent of the nation to which the condemned vessel and cargo belonged. If this evidence is not of so high a nature as an exemplification under the broad seal, it derives, from the high and important station of the attesting officer, a higher credit than a mere office copy, or even than a copy attested by the affidavit of an obscure individual. 3 Dallas, 19 to 42. Bingham v. Cabot.

The laws, therefore, and the sentence of the Governor, are authenticated by the best evidence which, in the nature of things, was attainable by the party; and if this Court should be of opinion that it ought to have been rejected, I should be altogether at a loss to instruct my client, where or how to apply for better, unless the Court would themselves condescend to give their directions; the methods suggested by the plaintiff's counsel being altogether impracticable.

But it is said the sentence was not of a court of competent jurisdiction upon the subject matter; and we are called upon to prove the jurisdiction of the court.

This objection was made by the gentleman before he questioned the evidence as to the laws; and he appealed to the laws themselves to support it. He said the laws themselves speak of judges; that this court will not presume the jurisdiction of the governor of a province; and that it is not like a court of admiralty, which is a court for all the world.

But, first. The laws do, in many places give, by necessary implication, and in express words, jurisdiction to the governor.

Secondly. The second law does speak of otherjudges; but they are appointed for the trial of the governors themselves, and of Portuguese subjects offending against the laws, and not of foreigners. Indeed most of the penalties of the second law are pointed against the subjects of Portugal engaging in or conniving at the forbidden traffic, as those of the first law are chiefly directed against the foreigner. And,

Thirdly. The comparison between the governor's court and a court of admiralty, is inapplicable, for the very reason which the gentleman suggests. A court of admiralty is a court for all nations; and no such court can exist, where all nations but one are excluded upon the most vindictive penalties. The gentleman's arguments against the colonial jurisdiction of a governor might be of weight, addressed to the court of Lisbon, to persuade them to open the ports of their colonies to all the world, and establish courts of admiralty in the ports of Brazil; but they cannot take from the governor the jurisdiction given by the laws, and further recognized by the attestation of the Portuguese secretary of state to the papers transmitted by him.

2. I shall now return to the first point of the gentleman's argument, and considering the evidence as duly authenticated, examine his objections against the opinion of the circuit judge, relative to the construction of the policies.

The opinion of the judge was, that the loss came within the exceptions in the policies, and therefore that the underwriter was not liable.

The plaintiff by his counsel, says that the loss was not within the exceptions, and that therefore the underwriter was liable.

The question, therefore, is a question of construction upon the true intent and meaning of the exceptions contained in the policies; and it will be proper to state the words in which the exceptions are couched, and then apply to them the facts in evidence, and the proper rules of construction adopted in similar cases.

The words in one policy are,

1. "The insurers are not liable for seizure by the " Portuguese for illicit trade."

In the other,

2. "N.B. The insurers do not take the risk of illicit trade with the Portuguese."

In both instances the words are within the body of the policy, and in their effect are in the nature of a warranty quoad hoc. The meaning appears to be exactly the same in both instances, and had the words been, " warranted against seizure by the Portuguese for illicit " trade," their force and meaning would have been exactly the same.

If there can be a reasonable doubt as to the construction of these words, we must recur to the ordinary rules of construction, which govern the cases of warranties and exceptions. There is no rule more universally known than that, as for what the underwriter takes upon him in the policy, a large and liberal construction must be given to his words, to favour the assured, so for what is excepted out of the policy, or warranted by the assured, a rigorous and strict construction must be given, to favour the underwriter; upon the reasonable and reciprocal principle, that words introduced for the benefit of either party shall receive the construction most favourable to the interest of that party. Hence, if the meaning of these words were in either case equivocal, that construction which would be most favourable to the underwriter, for whose benefit they were introduced, ought to prevail.

I apprehend, however, that there will be no occasion for resorting to this rule of construction. To me the meaning of the parties appears so obvious in the expressions used, that they are susceptible only of one construction.

It must be remembered, that this was professedly a voyage for the purpose of illicit trade. The voyage itself was illegal according to the Portuguese laws, and known to be so by both parties. The vessel, though bound to two Portuguese ports, was cleared out for the Cape of Good Hope, a deception not intended to be practised on the underwriters, but on the Portuguese, and proving, to demonstration, the full knowledge on the part of the plaintiff, that the mere act of going to Brazil, was a violation of the Portuguese trade laws, subjecting his vessel and cargo to seizure and confiscation. Indeed, the gentleman who opened the cause for the plaintiff, in one part of his argument admitted, and strenuously urged this knowledge of the illegality of the voyage, and most ingeniously attempted to draw from it a deduction in favour of Mr. Church's claim. I shall notice this hereafter; at present I shall only remark, that the directly opposite inference appears to me the true one. It appears by the papers that the instructions to Mr. Blagge, in Boston, the agent who effected the insurance, were to obtain it at the Marine Insurance Office in preference. Yet the insurance was not effected there, nor at the other incorporated office then existing in Boston. They never make insurance of any kind on voyages known to be illegal. Mr. Church's agent therefore, could obtain insurance only at the private offices of individual underwriters, and that on the express condition that they would take no risk for illicit trade, nor answer for seizure on that account.

The exception therefore, is not, and could not be against illicit trade; for this was intended; and it would have been absurd to warrant against what was the sole object of the voyage. But this was a risque which the underwriters would not assume; and their language in the policy is, we will insure you against the usual risks of an ordinary voyage, and although you clear out for the Cape of Good Hope, you shall go to one or two ports of Brazil; but as your voyage, by the laws of that country is illegal, we will bear none of the perils which this circumstance may lead you into with the Portuguese. Your profits from the voyage may be enormous; but you may get into trouble, and those chances you must take entirely upon yourself.

The language in the exceptions is conformable to this idea. It refers entirely, not to the act of the party, but to the acts of the Portuguese. It excepts, not against the illicit trade itself, but against seizure on that account; and against the risk with which it must be attended.

So that if there had been no sentence of condemnation, but merely an order for seizure, on account of illicit trade, by the governor of Para, the underwriters would have been discharged. There is some analogy between this exception and an ordinary warranty of neutrality; but this is a much stronger case. To falsify a warranty of neutrality, the sentence of a court of admiralty is necessary, because that alone can decide the question of neutral or not. But a warranty against detention for not being neutral, or against capture as enemy's property, would resemble this; and such a warranty would undoubtedly discharge the underwriters, from the moment of the detention or capture on that account, without needing the sentence of a court of admiralty on the question of prize or not.

The gentleman, in the principal part of his argument on this point, urged, however, that the exception was not against the risk of illicit trade, not against seizure for illicit trade, but against illicit trade itself; that is, against the sole object of the voyage. He says the language of the underwriters is, go and get permission to trade if you can; but take care not to trade without permission, and he has laid great stress upon the depositions, to shew that all nations do trade there with permission. But the whole weight of this reasoning rests upon the idea, that the permission to trade, by the governor, would have made the trade legal, and that the plaintiff did not intend to trade illegally.

This contradicts the whole tenor of the gentleman's argument, founded upon the known illegality of the trade. It contradicts the words of both exceptions which explicitly refer, not to the trade, but to its perils, and it contradicts the whole tenor of the testimony, as well as what is known, and what I shall prove, that permission could not make the trade legitimate.

We are told, however, that the voyage alone could not be within the policy, because it was at and from New York to one or two Portuguese ports in Brazil; and authorities have been cited to shew that underwriters are bound to know the course of the trade.

The voyage alone was not without the policy, in respect to all the perils undertaken; but it was without the policy in respect to the perils excluded by the exception. Thus although the vessel was cleared out for the Cape of Good Hope, and the course from Rio Janeiro to Para was as wide as possible from that of such a destination, yet it was within the policy, and the underwriters could not have discharged themselves on the ground of deviation. Thus far they were bound to know the course of the trade; and they did know it, for they expressly declared they would take no risk arising from the peculiar character of the trade on which the vessel was bound. As to the authorities which the gentleman has read to shew that no nation takes notice of the revenue laws of another, and that underwriters may be bound by insurance on a trade illicit by the laws of the country where it is carried on, I shall not dispute them; but they seem altogether inapplicable. The difference between the case of Lever v. Fletcher and ours, is, that there the underwriters had not thrown the risk of illicit trade out of the policy by an express exception. In ours they have. Had our policies been without this exception, undoubtedly the underwriters must, and would, have paid for this loss. But can any one imagine that if in that case of Lever v. Fletcher the words of our exception had been in the policy, Lord Mansfield would have told the jury that the underwriter might be liable for a risk of illicit trade, which they had, in so many words, excluded?

It is said that all nations do trade with permission; and to this I have replied that even such permission does not legitimate the trade. This is proved by the deposition of one of the plaintiff's witnesses, who testifies "that when vessels go into Rio Janeiro, belonging to foreigners, they allege a pretence of want of repairs, want of water, or something of that kind, on representing which they obtain leave to sell part of the cargo for repairs, and to remain a certain time, usually 20 days, and then by making presents to the officers they are not prevented from selling the whole, but without those presents they would probably be informed against. Such trade is a prohibited trade, but it is frequently done without a bribe."

From this process, which is confirmed by historical testimony, it is apparent that the Portuguese governors have no authority to license the trade. The same thing is equally clear from the most ancient of these laws.

The principles of the Spanish and Portuguese governments have always, from the earliest periods of their colonial establishments, been founded on this total exclusion of strangers. In the autumn of the year 1604, a treaty of peace was concluded between Philip the 3d of Spain, and James the 1st of England. These two nations had, before that time, been, for many years at war, and just then their political interests attracted them towards a close alliance together. In the negotiations for the peace this jealousy of the Spaniards against any commercial intercourse between foreigners and their colonies formed one of the points upon which the greatest difficulties occurred. — Spain insisted, not only that British subjects should be excluded from all trade to the Indies, but that James should expressly prohibit them from engaging in such trade by his royal proclamation. This the British government peremptorily refused. The parties were for some time on the point of breaking off at this very knot; and they finally could meet on no other terms than those of total silence on the subject. Spain therefore, as a substitute for negotiation, immediately afterwards issued this decree, which has never since been repealed; and when Portugal, some forty years afterwards, asserted and maintained her independence, she adopted, and has ever since practised on, the same law. But in times when the mother country has been at war, and unable to superintend, with the usual keenness of observation, the conduct of the colonial governors; when she is unable, from the obstructions in her navigation, to furnish the colonies with the supplies they are accustomed to receive from her in peaceable times; when the demand for these supplies swells the prices of articles to exorbitant rates, and the governors are at once assailed by the impulse of opportunity, of necessity, and of temptation, they have always occasionally yielded to the force of those inducements, and in various modes have sacrificed the severity of official duty to the sweets of profitable corruption. They shut their eyes and open their palms. They connive at the trade, and secure to themselves a large portion of its advantages. But the modes of transacting this business are themselves the most decisive proofs of its illegality. To shew this, and as a comment upon the depositions which have been read in this case, I must ask permission to read a short passage from 6 Raynal, Hist. of the Indies, 326.

"The illicit trade of Jamaica was carried on in a very "simple manner. An English vessel pretended to be in "want of water, wood or provisions; that her mast was "broken, or that she had sprung a leak which could not be "discovered or stopped without unloading. The governor "permitted the ship to come into the harbour to refit. "But for form's sake, and to exculpate himself to his court, "he ordered a seal to be affixed to the door of the warehouse "where the goods were deposited; while another "door was left unsealed, through which the merchandize "that was exchanged in this trade was carried in and out "by stealth. When the whole transaction was ended, the "stranger, who was always in want of money, requested "that he might be permitted to sell as much as would pay "his charges, and it would have been too cruel to refuse "this permission. It was necessary that the governor, or "his agents, might safely dispose in public of what they "had previously bought in secret; as it would always be "taken for granted that what they sold could be no other "than the goods that were allowed to be bought.

"In this manner were the greatest cargoes diposed of."

Thus we see that the modes of procedure in these cases are uniform, and hence we may duly estimate the real secret both of Mr. Church's, and Captain Barker's want of water and of wood. The fuel, of which they stood in need, was the produce, not of the forests, but of the mines. The thirst they suffered was the thirst of gold; and as the clown in the play says that Carolus must be the latin for one and twenty shillings, so here, as from time immemorial, want of wood and water, on the coast of Brazil, is the Portuguese for want of money.

The fact therefore that foreigners do sometimes trade in Brazil can be of little avail to the plaintiff's cause. Truly they do trade; at great hazard, and sometimes with great success. But as Mr. Church took the chance of this success upon himself, so he must be content to bear the consequences of its hazards, it being expressly so stipulated in the contract with the underwriters.

His counsel, however, has endeavoured to assist him with another distinction between trade, and an attempt to trade. There is, says he, no exception in the policies against an attempt to trade; now here was no actual trading; for the seizure and confiscation took place before that could be accomplished.

If this be a solid distinction, and can bear at all upon this cause, it is very certain that the words of the exceptions in both the policies were very insignificant and immaterial, both to Mr. Church and to the underwriters. If the perils which they so cautiously excluded from the policy were only such as could arise after actual trading, after bargain and sale of the cargo, the exceptions themselves were not worth the ink with which they were written. The only risk of the trade, the only peril of seizure for the trade, to which Mr. Church could possibly be exposed, was before he could effect his sales. Could he once have got over the danger of going to the port, and of landing his goods, there was no danger of any subsequent seizure for illicit trade. To say, therefore, that an attempt to trade is not within the exceptions, is to say that the exceptions meant nothing at all; that they were precautions against misfortunes which could never happen; anxious guards against impossible contingencies; it is to remove the railing of security from the borders of the precipice which needs it, to the middle of a plain where it can have no use. Strange indeed must be the construction which supposes parties so keen to penetrate, and fence themselves against a peril which could not befall, and so blind to the foresight of the very thing that did happen and was most likely to happen. It is the attempt to trade, which constitutes the offence punishable with seizure and confiscation. When the trade is once effected, the danger is removed; the governor's connivance is secured; the laws are soundly slumbering under the specific opiate of corruption, and the governor, instead of seizing the property, is satisfied with partaking of its proceeds.

It is then manifest that the voyage itself, especially when accompanied with the actual landing of persons from the vessel, constitutes the illicit trade. So it is there understood, and so it is understood by the trade laws of our own, and of all other countries. The gentleman has taken the definition of smuggling from the English law-books, and has argued as if all illicit trade were synonimous with it. Smuggling is indeed said to be the landing or running of goods contrary to law; but in the British revenue laws, and our own, there are many acts of illicit trade which subject to seizure and confiscation without the landing of the goods. Laws U.S. vol. 4. p. 425. § 84. p. 439. § 103.

The gentleman, to illustrate his distinction between an attempt to trade, and actual trade, compared it to the case of deviation, and has read an authority, Park 359, 361. ( ) to shew that an intended deviation, never carried into effect, does not vacate a policy, though an actual deviation does. But deviation consists of a single fact, and the intent can never be taken for the thing. — Trading consists of a great variety of acts, each of which constitutes part of the thing. Navigation is trade; fishery is trade; bargain and sale of goods is trade, and the attempt to accomplish this, in the revenue and colonial laws of all countries, is equivalent to the last act of bargain and sale.

The intent to deviate is so totally distinct from its accomplishment, that there can be no such thing as an attempt at deviation. As to trade, carrying goods from one place to another, is as much an act of trade as selling the goods carried. We say of a ship that she is a London or an Indian trader. An important branch of our business is the carrying trade. The word itself, like many others, has various meanings, and must be understood in the sense dictated by the subject matter to which it relates. Thus, by the Portuguese laws, going to Brazil for the purpose of trade, is itself illicit trade; as by our collection laws, a false entry of goods for the benefit of a drawback, or an importation of beer or spirits in casks or vessels different from those prescribed by law, would be acts of illicit trade in our own country.

The second ground, upon which the gentleman alleges that the loss was within the policy, is, that this was not a legal seizure for illicit trade; but a mere marine trespass; a violent outrageous trespass committed by the governor. This, he says, appears, 1. From the testimony, and 2. Upon the face of the sentence.

If the meaning of the exceptions be such as I have contended, and as their express words import, this question might fairly be laid out of the case. If the exceptions were meant against seizure, and the risk of illicit trade, the only fact the underwriters can be required to establish, is, that the property was seized for illicit trade. Whether the seizure was legal or not, is not for them to prove, as Mr. Church reserved that peril for himself. Let us, however, examine whether, either from the testimony or from the sentence, it was so outrageous a proceeding on the part of the governor of Para. That it was, on the contrary, conformable both to the law of nations and to the Portuguese laws, will, I think, not be very difficult to prove.

It is said that the testimony proves that the vessel was at anchor five leagues from the shore. That by the law of nations, cannon shot is the boundary of territorial jurisdiction. And therefore, that the governor of Para had no authority to seize and condemn the vessel and cargo.

First as to the fact. It will be found upon examining and comparing the depositions, that they were manifestly drawn up with a view to taking this ground. The distance and the bearings from Cape Baxos, the extreme south and east point of land at which the Bay of Para pours into the Atlantic, is laid down in all the depositions with most minute attention, and three depositions repeat not only the distance at which the vessels lay from that Cape, but also the exact distance northward of it by a meridian line drawn due east and west. Captain Shaler, however, only undertakes to say the distance from Cape Baxos was four or five leagues, and he candidly confesses that, at the time, both he and captain Barker did call the place where they were anchored the Bay of Para. Now it is very apparent from their geographical bearing, so precisely laid down, which was west and by north, about four or five leagues distant, and only two miles north, that they called it by its right name, or that they were at least within a Bay.

Thus then stands the fact. They were about four or five leagues from Cape Baxos, and within the Bay.

Secondly, as to the law. The gentleman read a passage from Vattel, to shew that cannon shot from the coast is by the law of nations the utmost bound of territorial jurisdiction. B. 1. § 289.

This passage is evidently restricted to the extent to which the rights of a neutral territory extend in time of war. The rule is apparently laid down for the sake of the inference from it, that a belligerent vessel cannot be taken under the cannon of a neutral fortress. It is a very indefinite rule indeed, even for the purpose to which it extends, for it makes the extent of a nation's territory depend upon the weight of metal, or projectile force of her cannon. It is a right which must resolve itself into power; and comes to this, that territory extends as far as it can be made to be respected.

But this principle does not apply to the right of a nation to cause her revenue and colonial laws to be respected. Here all nations do assume at least a greater extent than cannon shot; and other passages from Vattel shew the distinctions which are acknowledged on this point. B. 1. § 287, 288. It will also be remarked, that the territorial rights of a nation are extended in the utmost latitude to Bays. Thus then Mr. Church's vessel was completely within the territorial jurisdiction of Brazil.

But the gentleman read an authority from 4 Bac. Ab. 543, upon smuggling. The British revenue laws, says he, go as far as the law of nations will permit, and they extend the right of boarding smugglers only to two leagues.

Instead of appealing to Bacon's Abridgement, and British laws, I prefer looking into our own statute-book, and take there the measure which our own government has asserted for the extent of our jurisdiction. Laws U.S. vol. 4. p. 320. § 25, 26, 27. p. 437. § 99. Here we see the principles are assumed of exercising this jurisdiction four leagues from the coast, and at indefinite distances within Bays. All this is perfectly conformable to the law of nations. But it proves that the Aurora, when at anchor within the Bay of Para, and four or five leagues from Cape Baxos, was completely within the territorial jurisdiction of the governor of Para.

I have here said nothing of Mr. Church's going on shore for purposes of trade, nor of the imprudent conduct of the people with whom he was associated, which probably occasioned the exercise of the governor's authority.

Either of these facts, however, would have warranted the governor in seizing the vessels, even if they had not been within his territorial jurisdiction. Mr. Church's going on shore was, under these laws, an act of hostility, which undoubtedly gave the governor a right to seize the vessel in which he came, as well as his person. But a much more offensive act of hostility was committed by the vessel, in company with which Mr. Church's vessel was. For it appears from the testimony that they had forced a Portuguese schooner, in the Bay, to board them, by firing two guns successively to bring her to; and had detained the master of that schooner on board their own vessel, because they wanted a pilot. The people in the Portuguese schooner were excessively alarmed; nor is it surprising they should be. They immediately went into port, and doutless complained of the usage they had received. Now I ask what sort of laws they would be which, under such circumstances, should deny to the government of a country the right to touch a vessel thus conducting, because she is anchored four or five leagues distant from the shore. I cannot dwell upon this argument. The governor of Para knew of no such laws. The next day he sent three armed gun-boats, which took possession of both the vessels. And far from seeing any thing outrageous in this procedure, I think the governor would have been guilty of a high breach of duty had he done otherwise.

But Mr. Church really wanted water and had a right to go on shore to procure it. After the deposition of Van Voorhies, with the commentary of Raynal, it is scarcely possible to hear this allegation without a smile. It is, however, very conclusively answered by the governor's sentence, and I shall notice it in examining the objections to that. The court will need no argument to shew that if Mr. Church wanted water, it was his own fault, and in consequence of his own purpose. But further, the testimony is express that he went for trade as well as for water, and this alone made him liable to the loss of his vessel and cargo.

But the testimony shews the seizure was on account of their being French spies.

When these vessels and their force was known there could be very little occasion to fear them as enemies. — But I have no doubt questions of the kind were put to the witnesses as they state in their depositions; and the reason for those questions is explained by that imprudent firing and forcing of the Portuguese schooner to board them, which I have before noticed. It was very natural that the people of the Portuguese schooner should be alarmed; and, on going ashore, that they should communicate their alarms, which would of course be immediately spread with exaggeration. Such acts of direct and violent hostility within the bay, might, and in all probability would, be imputed to French cruizers, and not to American traders; to a nation with which Portugal was at war, and not to a people with whom she was at peace. Hence suspicions probably at first existed which led to the examination of the witnesses on those questions. But when the truth was discovered, the governor gives the real reasons for his decision.

Thus much, to justify the governor's sentence, from the testimony; upon which I shall conclude with one more observation. It is extremely probable that this firing of guns, and the violence done to a Portuguese schooner was the foundation of all the severity used towards Mr. Church, his companions and their property. When he landed in the evening, most probably the people of the Portuguese schooner had got in before him. They had doubtless entered their complaint, and represented the detention of their captain on board the American vessel. The offence was irritating to the highest degree. It must, in any civilized country, have alarmed the sympathies and roused the resentments of the people. It was one of those cases which call in a voice of thunder upon the ruling power of a country to exercise with firmness and rigour, all its force for the protection of the laws, and the personal security of the subject. Let us, but for a moment, suppose one of our own coasting vessels to go into a harbour of Chesapeake or Delaware bay with intelligence that she had been forcibly brought to, and her master taken from her, by a vessel at anchor within four or five leagues of the shore. Is there a governor of one of these states, who, upon such a representation made to him, would not feel it his duty to use the strongest arm of the law to protect his fellow-citizens, and to punish the outrage? Surely not. He would immediately send an armed force and take possession of the vessel; and if upon the examination it should appear that the vessel itself came for the purpose of prohibited trade, in the name of common sense and common justice, what indulgence could the supercargo or crew of such a vessel expect at the hands of the public officers of the country. If

In the corrupted currents of this world Offence's gilded hand can shove by justice,

she must, in truth, gild her hand, and not arm it with steel. Had the Governor of Para been ever so much disposed to grant Mr. Church the permission to trade, he could not have indulged his inclination after what had taken place.

The sentence itself seems also to carry its own justification with it. The order and sentence condemn the property on account of their having put into a port of the establishment; and of their having incurred the transgression of the decree of the 18th March, 1605.

When we apply the facts in evidence to the law of 18th March, 1605, we find that Mr. Church and his property had actually incurred these penalties. They certainly had put into a port of Brazil; and for trading purposes. They had even traded at Rio Janeiro; and although that was to a small amount, and with permission, the governor of Para, comparing their traffic there under pretence of distress with their conduct afterwards in coming within his own province, might justly recur to that former act as connected with the present one in constituting the offence against the law.

But the sentence goes further. It states the reasons upon which it is founded. It recites the allegations of the captain in his defence, and assigns the reasons of the court for disbelieving them. It notices in a special manner the pretence of wanting water, and very conclusively disproves it.

First, because they were only 34 days from Rio Janeiro; and had suffered no want of water, in a voyage of double that time from New-York to that place. The reason is certainly logical in substance, if not in form. If they were supplied with water for more than 60 days from New-York, why were they not supplied for an equal length of time from Rio Janeiro ? No accident being even pretended for the failure of their supply.

Secondly, because they had neglected to supply themselves, as they might have done, at various places along the coast.

Thirdly, because they had, at their first landing, alleged a wish to traffic and not to obtain water.

Fourthly, because they had alleged that the vessel had sprung a leak, which upon regular examination of the ship had proved not to be the case. Fifthly, because they were steering their course wide from the pretended destination of their voyage, and had neglected to sail for the trade winds, which they would have wanted for that destination.

Sixthly, because they must be considered as accessary to the hostile acts of the vessel with which they were in company; against which vessel the proofs were decisive. And,

Seventhly, because these false allegations were themselves a proof that the person who made them was not ignorant of the laws he had violated.

Far from considering this sentence, therefore, as an outrageous act, I cannot avoid expressing the opinion, that it indicates a sound judgment, a sincere respect for the rights of humanity and of innocence, and a punctilious adherence to the law of nations, and the duties of hospitality. Certain it is that the governor's reasoning led him to a conclusion which was just in fact; for captain Shaler tells us that on his examination he denied that trade was intended, and he also tells us that trade was intended. The governor, therefore, had not learnt the truth from him; but he had discovered it by just deductions from fair premises, though in direct opposition to Shaler's declaration.

The regard for the rights of humanity and the duties of hospitality is apparent from the anxious care with which the governor details his reasons for believing that the want of water was falsely alleged — mere pretence — mere affectation; for this solicitude to disprove the fact, is the strongest implication that had he believed the want of water real, and unintentional, he would not have seized the vessel. The variance between the professed destination of the vessel and the course of her navigation, would be strong presumptive proof in any judicial court. The company kept by the two vessels together, and the landing of the two parties from them in the same boat, and at one and the same time, would, upon the principles of the common law itself, have made each party a principal to the hostile and illegal acts of the other. And what reasoning can be better founded than that the allegation of falsehood proves the knowledge, the consciousness of illegal conduct in the person guilty of it. The order of seizure therefore contains a charge of unlawful acts, knowing them to be unlawful, and even in our own country, where the freedom of our citizens requires that every accusation should be direct, precise, and pointed, I know of no one essential ingredient of indictment which is not contained in this order of seizure by the governor of Para. The sentence of condemnation is founded upon it, and adopts its conclusions. It has therefore all the material characteristics of a legal condemnation for illicit trade; and must be a decisive bar against Mr. Church's claim of indemnity upon these policies.

I have now gone through the examination of the grounds upon which the exceptions of the plaintiff against the judgment of the Circuit Court were attempted to be supported by his counsel. It has been my endeavour to shew that the evidence was properly admitted, and that its operation was justly held conclusive against his demand in this action. I shall not detain the court with any further argument, but leave the remainder of my client's defence to the management of abler hands.

Mason, on the same side.

It is objected that this is the sentence of the governor, and it does not appear that he had admiralty jurisdiction. But the record produced does not state the condemnation of the vessel to have been made by the governor, but by a court. The governor only ordered the vessel to be seized, the captain and crew imprisoned, and their papers to be sent to the House of Justice. — But the condemnation begins with these words —" It is " hereby determined by the Court," c. and goes on, " Therefore THEY declare him to have incurred," c.

It is admitted that the trade is illegal. A permission obtained by bribery and corruption cannot make it lawful.

But it is said that two things must concur to bring the case within the exception to the policy — an act of trading, and a seizure for that cause.

Why should the underwriters insure against the risk of attempting to trade, and yet refuse to insure against a seizure for actual trade, when the whole risk of the insured was in the attempt. For after the water and the wood are gone, and the vessel, in due form, sprung a leak; when the goods are landed, and one of the doors of the warehouse sealed, and the other left open, all risk is past; for although the trade does not become lawful, yet a security is gained against prosecution.

It is objected that the Portuguese had no right, by the law of nations, to legislate respecting vessels in the situation in which this vessel was seized.

But every nation has a right to appropriate to her own use, a portion of the sea about her shores; and to legislate respecting vessels coming within that line. A vessel, coming within the line, contrary to the municipal laws of the country, may lawfully be seized. Vattel. B. 1. § 287.

The insurers did not take the risk of illicit trade; that is, of the unlawfulness of the trade. The word trade cannot be confined to the act of landing, or of selling the goods, but must mean the general course of the trade. And if any risk attended the attempt to land, or sell the goods, it was certainly one of the risks of the trade, and clearly within the letter of the exception. But if the evidence respecting the laws of Portugal, and the sentence ought to have been rejected, still enough remains to shew that the loss is within the exception. For it is admitted that the trade which the voyage was intended to effect, was illicit; the testimony shews that the vessel was seized by the Portuguese, and the jury had a right to infer, that the seizure was on account of such illicit trade.

Martin, in reply, made two points.

1st. That the evidence was not admissible.

2d. That, if admissible, it did not warrant the instruction given by the judge to the jury.

1st. As to the admissibility of the evidence.

Foreign laws must be proved as private acts of parliament. Public laws are permitted to be read from the statute-book, not because that is evidence, for no evidence is necessary, as the judges are presumed to know the law, but the statute-book is permitted to be read, to refresh their memory. Our courts are not bound to notice the laws of Portugal; they must therefore be proved by evidence. And in this, as in every other case, the best evidence which the nature of the case will admit, must be produced; that is the evidence produced must be such, as does not shew better evidence in the power of the party producing it.

The customs and usages of a foreign country, may be proved by testimony of persons acquainted with them, by a public history, or by cases decided. But an edict, registered in any particular office, must be proved by a copy, authenticated in one of three modes.

1st. By an exemplification under the national seal; and this is admitted as evidence, because one nation is presumed to know the public seal of another. — Peake L. of Ev. 48.

2d. Under the seal of the court, which seal must be proved, if it be of a municipal court, or

3d. By a sworn copy collated by a witness.

An exception has been allowed, as to the seal of courts of admiralty, in cases under the law of nations, because they are courts of the whole civilized world, and every person interested is a party. 1 Rob. 296, The Maria.

A copy certified by a person authorised ad hoc, is good in his own, but not in a foreign country; without evidence of his being such an officer.

Why is not a copy of the law produced, certified under the great seal of Portugal? — In excuse for not producing such a copy, they ought at least to shew that they have demanded it, and that it has been refused.

They might have applied to the officer who kept the original, for a certified copy. If they have done so, and have been refused, where is their evidence of that fact?

They might have got a witness to compare a copy with the original, and proved it.

The laws themselves, if authentic, shew that there is a place where they are registered, and where the defendant might have applied.

The certificate of the consul, is no authentication. He was not an officer authorised by the laws of this country, to certify that the magistrate of the foreign country, before whom an oath has been taken, was a magistrate authorised to administer such an oath. He was not authorised ad hoc; and his certificate is not better than that of any other person. England, a great commercial nation, has many consuls in foreign countries, yet there is no case decided in England, in which the certificate of one of her consuls, has been held to be evidence in the courts of common law.

As to the case of the notarial certificate, cited from 12 Viner, a notary public is an officer of the law of nations. In the case cited he was an officer of Holland, not of England; and the reason why the court allowed his certificate to be evidence, seems to have been, that the opposite party had also taken a like copy from the same notary.

The common mode of obtaining evidence was open for the defendant, and he ought to have availed himself of it, by taking a commission to Portugal to examine witnesses there.

The case of Bingham v. Cabot, from 3d Dallas, 19. is not in point. The question was not made as to the validity of the certificate of the register of the court of admiralty, respecting the order given by the Marquis de Bouille, nor was the decision of the court given upon that point.

There is no proof that the law of 1605, was ever adopted by Portugal; but if it was, yet that is not the law upon which the governor proceeded, for he himself says he proceeded upon the law of 15 th of October, 1715.

The sentence of the governor was not a sentence of a court of admiralty. It was not conclusive. The decrees of courts of admiralty are only conclusive when deciding upon questions of the law of nations; Peake L.E. 47. When deciding upon other questions, they are to be considered as mere municipal courts. This was not a question of the law of nations, but of their own municipal law.

Even if it was a court of admiralty, deciding upon a question of the law of nations, no evidence could be admitted of its decree, but a copy under the seal of the court. But the judgment of a municipal court, upon a municipal law, must be proved like any other fact. Even the seal of the court would not be sufficient, without other evidence that there was such a court having such a seal.

Another objection to the evidence is, that the proceedings at large ought to have been set forth, not the sentence alone, and even the sentence is not complete, for it refers to other pages of the proceedings which are not produced. Peake L.E. 26. — Loft's Gilbert, 24. 25. Buller N.P. 228.

It has been said that in this country the rule of evidence ought to be relaxed, on account of the distance from Europe and the difficulties in procuring testimony.

This might be a good argument before a legislature, but it cannot alter the law in this court.

The rules of evidence already established ought to be strictly guarded. To break in upon them would be to strike out every star and every constellation which can guide us through the tempestuous sea of legal litigation.

There is no evidence that the original proceedings were sent to the secretary of state in Portugal. There is no certificate of the clerk of any court. If it is a copy of the original proceedings, they appear to have all taken place on the same day. The judgment is only an interlocutory decree, and is not signed by any body. The officer who certifies that it is a true copy resided at Lisbon, and not at Para. There is no evidence that he was authorised ad hoc, and he has affixed only his private seal.

In order to make a legal sentence, there must be legal proceedings, in a legitimate court, armed with competent authority upon the subject matter, and upon the parties concerned. 4 Rob. 55. The Henrick and Maria.

The defendant must shew the law which gives the court of Para jurisdiction, and that the authority has been pursued.

The authority of the court does not appear; and it is contrary to the natural principles of justice to condemn the vessel without giving the owner an opportunity to be heard. In this case there was no monition issued. No forms were pursued either against the vessel or the owner, and the evidence shews that he had no notice. The sentence, if it proves any thing, does not shew that the condemnation was for illicit trade, or even for an attempt to trade; and it cannot be evidence of any collateral fact.

As to the pretended act of hostility, it was by another person, not the owner or master of this vessel. It was in its nature equivocal and is explained away by the testimony.

2d. The instruction of the judge to the jury ought not to have gone further than that if they were of opinion that the vessel was seized for illicit trade the insurers were discharged; but if for any other cause, they were liable.

If any ground of condemnation can be gathered from the sentence, it is that of being an enemy, and not illicit trade. Although the trade is generally prohibited, yet it is a well known fact that foreign ships do trade there, and have done so for a century. It is not illegal to insure smuggling voyages against the risk of seizure by a foreign government. There is no instance of a vessel being seized for going along shore or into the ports of the colonies of Spain or Portugal for the purpose of trading if they could gain permission, provided they did not actually trade without permission. There must be some act done more than going into port. This must be the construction of the law.

Such is the construction given to the English law which prohibits foreign vessels from going into their ports. They are not liable to seizure unless they go mala fide. Reeves' Law of Shipping, 203.

The premium is 20 per cent, which implies extraordinary risks. In the case of Graves against the Boston Marine Insurance Company, now pending in this court, the premium was only 20 per cent, and yet no such exception was made.

The exception is not a warranty. Policies are to be construed in favour of the insured. The exception is the language of the insurers, and to be taken most strongly against them. It means only legal seizures. A warranty against all claims, means all legal claims. The general clause of the policy is against all seizures, the exception therefore must mean all legal seizures.

No act of trading is proved. If the intention makes the offence, a Portuguese vessel might have seized the Aurora on the day after her leaving the port of New-York, and carried her to Portugal and condemned her. If then her sailing with the intention to trade was not an act of illicit trade, something further was necessary to constitute the offence.

The policy does not except the risk of seizure for suspicion of illicit trade. It is a general rule that words are to be construed most strongly against the person using them, and who ought to have explained himself.

If the evidence respecting the laws and the sentence be rejected, the remaining evidence will only shew that a seizure was made, but not that it was lawful; and for all unlawful seizures the underwriters are liable. Legal seizures only are excepted. To make it a lawful seizure it must be for some act done — not merely upon suspicion. The underwriters meant that the plaintiff should go and try to get permission to trade — but if he attempted to trade without leave they would not take the risk.