The Pizarro Upon a full examination of the evidence we are of 1817. opinion that the Spanish character of the ship is entirely sustained, and, therefore, the claimants are entitled to a decree of restitution. Two objections have been urged against this conclusion: 1. That the ship is not documented according to the requisitions of the treaty with Spain, and, therefore, not within the protection of that treaty. 2. That it does not party, or other papers respecting the lading of the vessel, is declared cause of condemnation. And by the ordinance of August, 1681, Des Prises, art. 6, all vessels, on board of which no charter party, bills of lading, or invoices are to be found, are, together with their cargoes, declared good prize. Doubts having arisen as to the application of this rule of evidence, in cases where sufficient papers were found remaining on board, to furnish proof of the proprietary interest, the ordinance of the 5th Sept., 1708, was rendered; by which it was provided, that every captured vessel, from which papers have been thrown overboard, shall be good prize, together with the cargo, upon proof of this fact alone, without its being necessary to examine into the nature of the papers destroyed, nor to inquire whether sufficient papers were found remaining on board to furnish evidence that the ship and the goods of her lading belonged to allies or friends. But this decision appearing too vigor ous in practice, Louis XIV, in a rescript of the 2d February, 1710, addressed to the Admiral of France, directed the council of prizes to apply the terms of this ordinance according to the peculiar circumstances, and the subsidiary proofs in each case. Valin is of the opinion that, though this rescript escaped the attention of the framers of the regulation of the 21st October, 1744, (the 6th article of which is entirely conformable to the ordinance of the 5th September, 1708,) yet it ought to be applied to temper the rigour of this article, according to circumstances. Valin,sur l'Ordonnance, Ib. And, according to the authority of a celebrated modern jurist of France, such regulations should always be tempered by wisdom and equity; they are improperly styled laws; and essentially variable pro temporibus et causis. He cites in confirmation of his opinion, that even the want or suppression of papers is not conclusive, a sentence of the council of prizes of the 27th De 1817. The Pizarro. appear that Mr. Hibberson (who is a native of Great Britain) has ever been naturalized in the dominions of Spain, and therefore he is not a subject of Spain, within the meaning of the treaty. As to the first objection, it is certainly true that the ship was not furnished with such a sea letter, or passport, or such certificates as are described in the 17th article of the treaty. But the want of such documents is no substantive ground for condemnation. It only justifies the capture, and authorizes the captors to send the ship into a proper port for adjudication. The treaty expressly declares, that when ships shall be found without such requisites, they may be sent into port, and adjudged by the competent tribunal; and "that all the circumstances of this omission having been well examined, they shall be adjudged to be legal prizes, unless they shall give legal satisfaction of their property by testimony entirely equivalent." It is apparent, from cember, 1779, restoring the cap- probably have been urged by the counsel for the captors, upon the principle of reciprocity, had they not been precluded from resorting to that argument by a former decision of the court, in the case of the Nereide, 9 Cranch, 388.; a majority of the judges being of opinion that the principle of reciprocity or amicable retaliation, formed no rule of judicial decision in the courts of this country, until it was prescribed as such by the legislative will. Id. 422. this language, that the omission to comply with the requisites of the treaty was not intended to be fatal to the property. And, certainly, by the general law of nations, as well as by the particular stipulations of the treaty, the parties would be at liberty to give farther explanations of their conduct, and to make other proofs of their property. If, indeed, upon the original evidence, the cause should appear extremely doubtful or suspicious, and farther proof should necessary, the grant or denial of it would rest upon the same general principles which govern the discretion of prize courts in other cases. But in the present case, there is no necessity for such farther proof, since the documents and testimony now before us, are, in our opinion, as to the proprietary interest in the ship, entirely equivalent to the passports and sea-letter required by the treaty. be As to the second objection, it assumes, as its basis, that the term "subjects," as used in the treaty, applies only to persons who, by birth or naturalization, owe a permanent allegiance to the Spanish government. It is, in our opinion, very clear that such is not the true interpretation of the language. The provisions of the treaty are manifestly designed to give reciprocal and co-extensive privileges to both countries; and to effectuate this object, the term subjects," when applied to persons owing allegiance to Spain, must be construed in the same sense as the term "citizens," or "inhabitants," when applied to persons owing allegiance to the United States. What demonstrates the entire propriety of this construction is, that in the 18th article of the 66 1817. The Pizarro 1817. The Pizarro. treaty, the terms "subjects," "people," and "inhabitants," are indiscriminately used as synonymous, to designate the same persons in both countries, and in cases obviously within the scope of the preceding articles. Indeed, in the language of the law of nations, which is always to be consulted in the interpretation of treaties, a person domiciled in a country, and enjoying the protection of its sovereign, is deemed a subject of that country. He owes allegiance to the country, while he resides in it; temporary, indeed, if he has not, by birth or naturalization, contracted a permanent allegiance; but so fixed that, as to all other nations, he follows the character of that country, in war as well as in peace. The mischiefs of a different construction would be very great; for it might then be contended that ships owned by Spanish subjects could be protected by the treaty, although they were domiciled in a foreign country, with which we were at war; and yet the law of nations would, in such a predicament, pronounce them enemies. We should, therefore, have no hesitation in over-ruling this objection, even if it were proved that Mr. Hibberson was not a naturalized subject of Spain; but we think the presumption very strong that he had become, in the strictest sense of the words, a Spanish subject. The Spanish character of the ship being ascertained, it is unnecessary to inquire into the proprietary interest of the cargo, unless so far as to ascertain that it does not belong to citizens of the United States; for the treaty would certainly not protect the property of American citizens trading with the ene my in Spanish ships. There is no presumption, from the evidence, that any American interest is concerned in the shipment. The whole property belonged either to British subjects or to the claimants, and we think the proofs in the cause very strongly establish it to belong as claimed. The decree of the circuit court is affirmed with costs. 1817. The Pizarro f It is obvious that the privilege of the neutral flag of protect ing enemy's property, whether conferred by treaty or by the ordinances of belligerant powers, cannot extent to a fraudulent use of the flag to cover enemy's property in the ship as well as the cargo. The Minerva, 1 Marriott's Adm. Dec. 235. The Cittade de Lisboa, 6 Rob. 358. The Eendraught, Ib. Note, (a.) During the war of the American revolution the United States, recognising the principles of the armed neutrality, exempted by an ordinance of congress all neu tral vessels from capture, except such as were employed in carrying contraband goods, or soldiers, to the enemy; it was held that this exemption, did not extend to a vessel which had been guilty of grossly unneutral conduct, in taking a decided part with the enemy, by combining with his sub Decree affirmed! jects to wrest out of the hands of the United States and of France the advantages they had acquired over Great Britain, by the rights of war in the conquest of Dominica. By the capitulation of that island, all commercial intercourse with Great Britain was interdicted. In the case in question, the vessel was purchased by neutrals in London, who supplied her with false and colourable papers, and assumed on themselves the ownership of the cargo, for a voyage from London to Dominica. The continental court of appeals, in pronouncing the vessel and cargo liable to condemnation, observed, "Had she been employed in a fair commerce, such as was consistent with the rights of neutrality, her cargo, though the property of an enemy, could not be prize; because congress had said, by their ordinance, that the rights of neutrality should extend protec |