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.
Page 6 U. S. 188
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.
Page 6 U. S. 189
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.]
Page 6 U. S. 191
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."
"WILLIAM JARVIS"
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.
Page 6 U. S. 192
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
Page 6 U. S. 193
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
Page 6 U. S. 194
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. "
Page 6 U. S. 195
"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."
"WILLIAM JARVIS"
To the admission of this evidence the plaintiff objected,
Page 6 U. S. 196
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.
Page 6 U. S. 197
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
Page 6 U. S. 198
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. "
Page 6 U. S. 232
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the
Court.
If in this case, the court had been of opinion that the circuit
court had erred in its construction of the policies which
constitute the ground of action -- that is, if we had conceived
that the defense set up would have been insufficient, admitting it
to have been clearly made out in point of fact, we should have
deemed it right to have declared that opinion, although the case
might have gone off on other points, because it is desirable to
terminate every cause upon its real merits if those merits are
fairly before the court, and to put an end to litigation where it
is in the power of the court to do so. But no error is perceived in
the opinion given on the construction of the policies. If the proof
is sufficient to show that the loss of the vessel and cargo was
occasioned by attempting an illicit trade with the Portuguese; that
an offense was actually committed against the laws of that nation,
and that they were condemned by the government on that account; the
case comes fairly within the exception of the policies and the risk
was one not intended to be insured against.
The words of the exception in the first policy are, "the
insurers are not liable for seizure by the Portuguese for illicit
trade."
In the second policy, the words are "the insurers do not take
the risk of illicit trade with the Portuguese."
The counsel on both sides insist that these words ought to
receive the same construction, and that each exception is
substantially the same.
The court is of the same opinion. The words themselves are not
essentially variant from each other, and no reason is perceived for
supposing any intention in the contracting parties to vary the
risk.
For the plaintiff it is contended, that the terms used require
an actual traffic between the vessel and inhabitants,
Page 6 U. S. 233
and a seizure in consequence of that traffic, or at least that
the vessel should have been brought into port, in order to
constitute a case which comes within the exception of the policy.
But such does not seem to be the necessary import of the words. The
more enlarged and liberal construction given to them by the
defendants, is certainly warranted by common usage, and wherever
words admit of a more extensive or more restricted signification,
they must be taken in that sense which is required by the subject
matter, and which will best effectuate what it is reasonable to
suppose was the real intention of the parties.
In this case, the unlawfulness of the voyage was perfectly
understood by both parties. That the
Page 6 U. S. 234
Crown of Portugal excluded, with the most jealous watchfulness,
the commercial intercourse of foreigners with their colonies, was
probably a fact of as much notoriety as that foreigners had devised
means to elude this watchfulness and to carry on a gainful but very
hazardous trade with those colonies. If the attempt should succeed,
it would be very profitable, but the risk attending it was
necessarily great. It was this risk which the underwriters, on a
fair construction of their words, did not mean to take upon
themselves. "They are not liable," they say, "for seizure by the
Portuguese for illicit trade." "They do not take the risk of
illicit trade with the Portuguese." Now this illicit trade was the
sole and avowed object of the voyage, and the vessel was engaged in
it from the time of her leaving the port of New York. The risk of
this illicit trade is separated from the various other perils to
which vessels are exposed at sea, and excluded from the policy.
Whenever the risk commences the exception commences also, for it is
apparent that the underwriters meant to take upon themselves no
portion of that hazard which was occasioned by the unlawfulness of
the voyage.
If it could have been presumed by the parties to this contract
that the laws of Portugal prohibiting commercial intercourse
between their colonies and foreign merchants permitted vessels to
enter their ports or to hover off their coasts for the purposes of
trade with impunity, and only subjected them to seizure and
condemnation after the very act had been committed, or if such are
really their laws, then indeed the exception might reasonably be
supposed to have been intended to be as limited in its construction
as is contended for by the plaintiff. If the danger did not
commence till the vessel was in port or till the act of bargain and
sale without a permit from the governor had been committed, then it
would be reasonable to consider the exception as only contemplating
that event. But this presumption is too extravagant to have been
made. If indeed the fact itself should be so, then there is an end
of presumption, and the contract will be expounded by the law; but
as a general principle the nation which prohibits commercial
intercourse with its colonies must be supposed to adopt measures to
make that prohibition effectual. They must therefore be supposed to
seize vessels coming into their harbors or hovering on their coasts
in a condition to trade, and to be afterwards governed in their
proceedings with respect to those vessels by the circumstances
which shall appear in evidence. That the officers of that nation
are induced occasionally to dispense with their laws does not alter
them or legalize the trade they prohibit. As they may be executed
at the will of the governor, there is always danger that they will
be executed, and that danger the insurers have not chosen to take
upon themselves.
That the law of nations prohibits the exercise of any act of
authority over a vessel in the situation of the
Aurora,
and that this seizure is on that account a mere marine trespass,
not within the exception, cannot be admitted. To reason from the
extent of protection a nation will afford to foreigners to the
extent of the means it may use for its own security does not seem
to be perfectly correct. It is opposed by principles which are
universally acknowledged. The authority of a nation within its own
territory is absolute and exclusive. The seizure of a vessel within
the range of its cannon by a foreign force is an invasion of the
territory, and is a hostile act which it is its duty to repel. But
its power to secure itself from injury may certainly be exercised
beyond the limits of its territory. Upon this principle the right
of a belligerent to search a neutral vessel on the high seas for
contraband of war, is universally
Page 6 U. S. 235
admitted, because the belligerent has a right to prevent the
injury done to himself by the assistance intended for his enemy; so
too a nation has a right to prohibit any commerce with its
colonies. Any attempt to violate the laws made to protect this
right is an injury to itself which it may prevent, and it has a
right to use the means necessary for its prevention. These means do
not appear to be limited within any certain marked boundaries which
remain the same at all times and in all situations. If they 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.
In different seas and on different coasts, a wider or more
contracted range in which to exercise the vigilance of the
government will be assented to. Thus, in the channel, where a very
great part of the commerce to and from all the north of Europe
passes through a very narrow sea, the seizure of vessels on
suspicion of attempting an illicit trade must necessarily be
restricted to very narrow limits; but on the coast of South
America, seldom frequented by vessels but for the purpose of
illicit trade, the vigilance of the government may be extended
somewhat further, and foreign nations submit to such regulations as
are reasonable in themselves and are really necessary to secure
that monopoly of colonial commerce which is claimed by all nations
holding distant possessions.
If this right be extended too far, the exercise of it will be
resisted. It has occasioned long and frequent contests which have
sometimes ended in open war. The English, it will be well
recollected, complained of the right claimed by Spain to search
their vessels on the high seas, which was carried so far that the
guarda costas of that nation seized vessels not in the
neighborhood of their coasts. This practice was the subject of long
and fruitless negotiations, and at length of open war. The right of
the Spaniards was supposed to be exercised unreasonably and
vexatiously, but it never was contended that it could only be
exercised within the range of the cannon from their batteries.
Indeed, the
Page 6 U. S. 236
right given to our own revenue cutters to visit vessels four
leagues from our coast is a declaration that in the opinion of the
American government, no such principle as that contended for has a
real existence.
Nothing then is to be drawn from the laws or usages of nations
which gives to this part of the contract before the Court the very
limited construction which the plaintiff insists on or which proves
that the seizure of the
Aurora by the Portuguese Governor
was an act of lawless violence.
The argument that such act would be within the policy, and not
within the exception, is admitted to be well founded. That the
exclusion from the insurance of "the risk of illicit trade with the
Portuguese" is an exclusion only of that risk, to which such trade
is by law exposed, will be readily conceded.
It is unquestionably limited and restrained by the terms
"illicit trade." No seizure not justifiable under the laws and
regulations established by the Crown of Portugal for the
restriction of foreign commerce with its dependencies can come
within this part of the contract, and every seizure which is
justifiable by those laws and regulations must be deemed within
it.
To prove that the
Aurora and her cargo were sequestered
at Para in conformity with the laws of Portugal, two edicts and the
judgment of sequestration have been produced by the defendants in
the circuit court. These documents were objected to on the
principle that they were not properly authenticated, but the
objection was overruled, and the judges permitted them to go to the
jury.
The edicts of the Crown are certified by the American consul at
Lisbon to be copies from the original law of the realm, and this
certificate is granted under his official seal.
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 principle
Page 6 U. S. 237
that the best testimony shall be required which the nature of
the thing admits of, or in other words that no testimony shall be
received which presupposes better testimony attainable by the party
who offers it, applies to foreign laws as it does to all other
facts. The sanction of an oath is required for their establishment
unless they can be verified by some other such high authority that
the law respects it not less than the oath of an individual.
In this case, the edicts produced are not verified by an oath.
The consul has not sworn; he has only certified that they are truly
copied from the originals. To give to this certificate the force of
testimony, it will be necessary to show that this is one of those
consular functions to which, to use its own language, the laws of
this country attach full faith and credit.
Consuls, it is said, are officers known to the law of nations,
and are entrusted with high powers. This is very true, but they do
not appear to be 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. There appears no reason
for assigning to their certificate respecting a foreign law any
higher or different degree of credit than would be assigned to
their certificates of any other fact.
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 of would be unjust and
unreasonable. The court will never require such testimony. In this
as in all other cases, no testimony will be required which is shown
to be unattainable. But no civilized nation will be presumed to
refuse those acts for authenticating instruments which are usual
and which are deemed necessary for the purposes of justice. It
cannot be presumed that an application to authenticate an edict by
the seal of the nation would be rejected unless the fact should
appear to the court. Nor can it be presumed that any difficulty
exists in obtaining a copy. Indeed, in this very case, the very
testimony offered would contradict such a presumption. The paper
offered to the
Page 6 U. S. 238
court is certified to be a copy compared with the original. It
is impossible to suppose that this copy might not have been
authenticated by the oath of the consul as well as by his
certificate.
It is asked in what manner this oath should itself have been
authenticated, and it is supposed that the consular seal must
ultimately have been resorted to for this purpose. But no such
necessity exists. Commissions are always granted for taking
testimony abroad, and the commissioners have authority to
administer oaths and to certify the depositions by them taken.
The edicts of Portugal, then, not having been proved, ought not
to have been laid before the jury.
The paper offered as a true copy from the original proceedings
against the
Aurora is certified under the seal of his arms
by D. Jono de Almeida de Mello de Castro, who states himself to be
the Secretary of State for Foreign Affairs, and the consul
certifies the English copy which accompanies it to be a true
translation of the Portuguese original.
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. But it does not appear that there was any
insuperable impediment to the use of either of these modes, and the
Court cannot presume such impediment to have existed. Nor is the
certificate which has been obtained an admissible substitute for
either of them.
If it be true that the decrees of the colonies are
transmitted
Page 6 U. S. 239
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; but the certificate offered to the Court is under the
private seal of the person giving it, which cannot be known to this
Court, and of consequence can authenticate nothing. The paper,
therefore, purporting to be a sequestration of the
Aurora
and her cargo in Para ought not to have been laid before the
jury.
Admitting the originals in the Portuguese language to have been
authenticated properly, yet there was error in admitting the
translation to have been read on the certificate of the consul.
Interpreters are always sworn, and the translation of a consul not
on oath can have no greater validity than that of any other
respectable man.
If the court erred in admitting as testimony papers which ought
not to have been received, the judgment is, of course, to be
reversed and a new trial awarded. It is urged that there is enough
in the record to induce a jury to find a verdict for the defendants
independent of the testimony objected to, and that, in saying what
judgment the court below ought to have rendered, a direction to
that effect might be given. If this was even true in point of fact,
the inference is not correctly drawn. There must be a new trial,
and at that new trial each party is at liberty to produce new
evidence. Of consequence, this Court can give no instructions
respecting that evidence.
The judgment must be reversed with costs and the cause
remanded to be again tried in the circuit court with instructions
not to permit the copies of the edicts of Portugal and the sentence
in the proceeding mentioned to go to the jury unless they be
authenticated according to law.
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