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the General Government—and if once there, all attempts to recover it would be unavailing; and that it would be better to seek redress of the local authorities at Tampico, though they had committed the wrong. This advice resulted no doubt from the fact, which the history of that date has recorded, that a civil war then raged in Mexico, in which the Emperor Iturbide was opposed by several leading Generals with large bodies of troops; that battles had been fought; and, in the end, the Emperor was overthrown and exiled, and a total change of government, both in form and in functionaries, resulted.
It appears by the deposition of Jose Perez, a witness of wellsustained character for veracity, that the collector and judge offered, through him, to decree an acquittal of both vessel and cargo for onehalf the avails of the sale; but, conscious that there was no pretence for the seizure, and that, without outraging all law and justice, there could be no sentence of condemnation, this offer was rejected, and judicial proceedings in the case urged forward.
The vessel and cargo were sold; not, however, in pursuance of any sentence or decree of condemnation, but by consent of the parties, to save the schooner from destruction by the worms, and the cargo from pillage while in the custody of the Mexican officials; and the avails went into the hands of the judge. He, however, delayed proceedings until he became involved in a charge of high treason, was arrested, made his escape, and ran away; taking not only the money avails of the sale with him, but, as is supposed, all the official documents relating to
This event, and the revolutionary condition of the country, discouraged the claimant. After spending a considerable sum of money, and seeing no prospect of recovering the property, the claimant appears to have intermitted his efforts for some time to procure the redress of
, The principle is too well established to render it necessary to refer to authorities, that the owner of property seized as prize in war, or for violating revenue laws, is not divested of his right to it by the capture or seizure, nor until there has been a decree of condemnation. Even in a case where there was just cause, the seizors cannot escape from liability to him for the property, without showing a regular decree of condemnation. It is not sufficient for them to show that there is cause for confiscation; they must show a decree of a court of competent jurisdiction, declaring its forfeiture,
This position—that capture or seizure does not divest the owner of his right to the property-has been established, and the authorities in support of it referred to in another case now pending before the Board, (the case of the Escambia.) It is not deemed necessary here to repeat the argument, or to refer again to the cases which support it; they will be found in the printed case, (the Escambia,) at pages 25 and 26. The undersigned will repeat the reference to only two or three cases :
“ The property of a neutral is not divested by capture and sale by a belligerent, unless condemned as prize by a competent court."-1 Johnson, N.Y. Reports, 471, Wheelwright vs. Depeyster ; same point decided in 2 Peters Ad. Decisions, 345.
“The property of the original owner is not changed by capture, without condemnation.”—1 Cranch, 32.
The case under consideration is as strong as any that can be conceived for the owner of the property. Though there was a seizure, no cause for it is shown, and no decree of condemnation ever pronounced.
It is true that there was a pretext set up for the seizure, and its character is well worthy of the particular attention of the Board.
In the protest made by the captain, mate, and sailors, at the time of the transaction, it appears that the pretence alleged for preventing them from sailing, after permission and the necessary papers were granted, was, that information had been received “ that his (the captain's] 'object in going to sea was to smuggle.” There was no allegation that any law had been violated, any offence committed, but merely that a violation of law was intended. Under this pretence, the collector and military commander took forcible possession of the vessel and its valuable cargo, with all the papers on board. Though assured by the consignee, (D’Arbel,) a highly respectable merchant, and by the supercargo and the captain, that the accusation was entirely false, they persisted in holding on to the property, and rejected D’Arbel's offer to bond for the vessel and cargo. The names of the accusers were demanded, but these officers refused to give any information to justify their conduct.
The property was sold in presence of the judge (Ortiz) on the 14th of May, 1822, and by his order; (see Doc. No. 8.) The cause of seizure is stated in the heading of that paper. It was sold, not because it had been condemned, but for account of those to whom it might "belong, the cargo of the schooner Rebecca, Captain Eells, which was seized on suspicion of an intention of smuggling.”
It was not, then, pretended that there was any proof of an intention of smuggling; but there was only a suspicion of an intention to commit an offence against the revenue laws of Mexico—not a suspicion, (it will be observed,) that an offence had been committed, but a suspicion of an intention to commit such offence.
Jose Perez, a witness who is presented under circumstances which entitle him to the utmost credibility, knew the grounds of the seizure. He says in his deposition (Doc. No. 17) that she was seized by the
captain of the port, on the alleged (vague and unfounded] suspicion of intention to fraudulently land the cargo, and sent back to port in charge of an armed force; that said D’Arbel remonstrated against said violent proceedings, and gave the most positive assurance of the innocence of intention of the officers and all persons, including him
self, who were in any manner connected with the vessel and cargo, « but without effect."
D'Arbel, it will be recollected, was the consignee and commercial correspondent of the owner of the vessel and cargo, and a respectable merchant. To quiet their pretended apprehensions, he offered to give bonds that the apprehended offence of smuggling should not be committed. But all this effected nothing towards releasing the property.
“It was then manifest,” (as Perez states,)“from the beginning, that the whole suspicion of fraudulent intention before mentioned was but
a pretext for the plunder then resolved on and afterwards consummated.”
Considering the grounds on which the seizure was placed, it cannot be a matter of surprise that the collector and judge should offer to compromise. by taking one-half the sum for which the property had been sold, or that the supercargo should decline to accept it. Nor is it less surprising that no trace of any judicial proceedings in the case can be found. The documents which are presented to the Board show that great diligence has been made by the claimant, and considerable expense incurred, to find any trace of judicial proceedings in the case, but all in vain. If any such proceedings were instituted, the judge, when he absconded, did not see fit to leave them behind him.
There is nothing in the case, as the undersigned conceives, to justify the assumption that the seizors ever dared to go on to judgment. No record can be found of any such judgment, or of any initiatory proceedings in any court, not even before the absconding judge. That there was no judicial sentence in the case is not only proved by no record being found where it would be if one existed, but by the testimony of Jose Perez, now a respectable citizen of New Orleans, and certified “ to be worthy of full belief.” He was, at the time of the seizure of the Rebecca and her cargo, the clerk of Don Domingo D'Arbel, the commercial correspondent of the owner. He states that, after the supercargo, acting under the advice of D’Arbel, refused to buy an acquittal by giving up one-half of the cargo, and urged on the trial, in full confidence of success in the result, the judge procrastinated the proceedings, but at length fixed on a day of trial in December: but before that day arrived he was arrested on a charge of treason; and, while on his way to the city of Mexico, escaped from custody, fled to the shores of the Pacific, and there died.
The undersigned has not been able to conceive any substantial ground of opposition to this claim.
That the vessel and cargo were not confiscated most conclusively appears; and it is equally clear that no law subjecting them to confiscation was violated.
That the forcible seizure of the Mexican authorities at Tampico was done in bad faith, and without any fair pretext, is placed beyond a reasonable doubt.
There was nothing in the voyage itself, or the conduct of it, to excite the suspicion which the Mexican officers affected to entertain. At the time it was undertaken, our trade with Mexico was considerable, but it afterwards declined in consequence of the plunder to which it was subjected. It was the usual course for vessels with large cargoes to visit the several ports in the Gulf of Mexico. It appears, by a certificate from the custom-house at New Orleans, that the clearance of the Rebecca was for Vera Cruz, but the original bill of lading, which is annexed to the deposition of James W. Zacharie, the claimant in this case, (see document No. 5 B.) that her destination was Tampico and Vera Cruz. Her visit to Tampico affords no ground whatever for suspicion. The bill of lading shows that she intended to do so, for the purpose of trying that market. It also appears that she had permission to land and sell a part of the cargo at that place. Her proposed departure from that place afforded no cause for suspicion. She had received from the custom-house the usual and regular papers for that purpose. The supercargo had a clear right to seek a better market if he thought he could find one; and no objection to his course was made or intimated until he had left the port of Tampico. Being delayed at the bar in getting to sea, the idea of plundering the property seems first to have sprung up in the minds of the judge and military commandant of that place. The groundlessness of their pretence has been commented on and exposed; and nothing now remains to be considered but the amount of damages which resulted from the lawless and outrageous conduct of the Mexican officials. All which is respectfully submitted.
JAMES H. CAUSTEN. Endorsed “Statement of the Case Schooner Rebecca, filed January 20, 1851. James H. Causten."
BOARD OF COMMISSIONERS ON CLAIMS AGAINST Mexico,
March 21, 1851. THE CLAIM OF JAMES W. ZACHARIE. This claim is for the value of the schooner Rebecca and cargo, alleged to have been lost at Puebla Viejo by the illegal proceedings of the judge of that place.
The statement of the case as set forth in the memorial is not established by the papers and evidence introduced to sustain it. From these latter it appears that said schooner, with a cargo valued at New Orleans at $7,676, being the joint property of Zacharie & Turner, set_sail about the 4th April, 1822, bound for Tampico and Vera Cruz. That in due time she arrived at Puebla Viejo, and entered her cargo. Selling, by permission, a small portion to defray expenses, she cleared with the residue to return to New Orleans. Before the vessel crossed the bar of Tampico, she was seized by the custom-house officers of that port, charged with fraud, and proceedings were commenced against vessel and cargo before the judge at Puebla Viejo.
The supercargo, consignee, and captain, thinking it would be best for the interest of the owners, agreed that the vessel and cargo should be sold, and the proceeds deposited in court, subject to a final sentence or decree. The decision of the case for some reason or other was put off and protracted until, in the end, the judge having been accused of treason, made his escape, taking with him, as is alleged, all the money deposited and all the records of the case.
Can the party claim against the Government of Mexico under these circumstances ?
Without going fully into the question how far by the public law (by which this case must be governed) a nation is liable for the misconduct of its judicial officers, the Board proceeds to consider this claim as presented by the testimony and papers offered as testimony.
It not only does not appear that the Mexican Government had the slightest agency in causing or suffering the wrong complained of to be done to the claimant, but, on the contrary, it appears that all knowledge of the wrong was sedulously kept by the agents of the parties interested from the knowledge of that Government.
By the letter of one H. Didier, written in December, 1822, it is shown that he was some short time previous at the city of Mexico, and presented the case to Mr. Wilcox, the United States consul residing there; and the latter had a private conversation about the matter with one of the Secretaries. The result of this was, that it would be better not to bring the matter to the notice of the Mexican Government, or the proceeds of the sale of the vessel and cargo would be ordered to be paid into the national treasury. . On the contrary, the parties were advised to make the best arrangement they could with the judge before whom the case was brought.
he end of this conference with the consul was communicated to the consignee and supercargo by Mr. Didier, and the former proceeded to act under the advice given; and Messrs. Zacharie & Turner, the writer says, would be informed by the consignee of the result of the intended arrangement with the judge. The same letter also shows that an account of the transaction was given to the owners by the supercargo ; and this account was forwarded to them with the letter of Didier. None of this correspondence of the supercargo or of the consignee has been furnished to the Board.
The next step taken by the claimant in this matter appears to have been a search for the record of the trial at Puebla Viejo, about the commencement of the year 1844. This search seems to have resulted in nothing save the finding an entry on the custom-house register at that place, showing the arrival of the vessel, the entry of her cargo, and a sale of part by permission, and her exportation of the remainder, said to be intended for New Orleans. This record states that, after the vessel had thus cleared, “subsequently fraud was discovered, and the vessel and cargo were confiscated.” This effort to find the record was followed in 1845 by a representation of the case to the United States State Department. Thus it appears that a claim arising upon an alleged gross and illegal act was kept entirely out of the view
of the Mexican Government by the claimant, and no notice of it brought to the knowledge of his own Government for upwards of twenty-two years. Upon what grounds can Mexico be held responsible for this fraud or misconduct on the part of one of her judges? It seems to us that if liability for all acts of its judicial officers should attach to the nation, it can only be on the ground that the Government receives the benefit of or sanctions such acts. In the case before us, neither of these probabilities arise. Before judgment, no part of the money accruing from the sale of claimant's property can be presumed to have gone into the national treasury; and since, by consent of the claimant, the Government of Mexico remained unadvised of the act of the judge, no presumption can properly arise that the Government sanctioned his act.
The charge of fraud against the vessel, judging from the statements of the agents of the claimant, was not wholly without foundation. The vessel is said to have cleared at New Orleans for Vera Cruz. We find