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this was not to be expected in taking the taken." The captain said to the agent "it was depositions in preparatorio, and particularly not necessary because we are not going to as it was not the captain's own cablegram, San Juan, being notified of the blockade." but that of the agent at Cape Haytien. There “When we arrive in a port we put up a plais nothing in the evidence to the contrary, card of the date of departure and the time and under the liberality of the rules of evi of sailing and the destination, and it was put dence in the administration of the civil law, up by my personal order from the captain that we must take this as we find it, and, as it we sailed from St. Thomas directly, and it stands, the argument that a temptation was was fixed up in the night of the 15th of July. held out is answered by the evidence that it..We were to start on the morning of was resisted.

the 16th, at 6 o'clock in the morning, the cap(520) *Such being the situation and the evidence tain saying he did not want to fall into the

of the ship's officers being explicit that the hands of the American cruisers during the vessel was on her way to St. Thomas and had night. The night before our arrival in no intention of running into San Juan, the Charleston, the doctor says to me, 'I have a decree in her favor must be affirmed on the bill of health, Spanish account, from Cape merits, unless the record elsewhere furnishes | Haytien and Port au Prince,' and I told him evidence sufficient to overcome the conclusion I would speak to the captain and ask him reasonably deducible from the facts above what to do with these papers that I had found stated.

in assorting my papers—these papers in tho Among the papers delivered to the prize pigeon holes. I told the captain that morn. master were certain bills of health, five of ing, and he told me that we had better de them by consuls of France, namely, July 9, stroy them, because we don't want them; from St. Morc, Haiti, giving the ship's desti. that it is not our expedition, and that a true nation as Havre, with intermediate ports; exposition is valuable only for the last port July 11, from Gonaives, Haiti, giving no des- to the Spanish port." tination; July 13, from Port au Prince; July On the 5th the captain was permitted to 14, from Cape Haytien; July 15, from Puerto testify, in explanation, saying, among other Plata,--all naming Havre as the destination: things: “The reason that we did not give and three by consuls of Denmark, July 13, up the two bills of health is because they did from Port au Prince, July 14, from Cape not form a part of the clearance of our ship Kaytien, and July 15 from Puerto Plata, all for our itinerary, and they were left in the naming St. Thomas as the destination. pigeon holes where they were. It was at the When the captain testified August 2, in an- | time of our arrival at the quarantine at swer to the standing interrogatories, he said Charleston that the purser spoke to me of nothing about any Spanish bills of health. them, and I told him that they were good The deposition was reread to the captain, for nothing and to tear them up. The capAugust 3, and on the next day, August 4, he tain wishes to add that he did not rememwrote to the prize commissioners desiring to ber the instance the other day about the de correct it, saying: “I fear I have badly instruction of papers that he has just told us terpreted several questions. I was asked if I about and that he never had any intention had destroyed any papers on board or pass. to disguise anything or to deceive." ports. I replied, no. The papers-docu *Counsel for the government insist that the 828) ments on board for our voyage had been de intention of the Olinde to run the blockade livered up proper and legal to the prize mas- is necessarily to be inferred from the poster. This is absolutely the truth, not in session of these bills of health and their alcluding in the documents two Spanish bills leged concealment and destruction. Doubtof health, one from Port au Prince and one less the spoliation of papers, and, though to from Cape Haytien, which we found in open- a less degree, their concealment, is theoretiing our papers, although they had not been cally a serious offense, and authorizes the demanded. " Not having any value for us, I presumption of an intention to suppress insaid to the steward to destroy them on our criminating evidence though this is not an arrival at Charleston, as we often do with irrebuttable presumption. papers that are useless to us. The regular In The Pizarro, 2 Wheat. 227, 241 [4: expedition only counts from the last port, 226, 229], the rule is thus stated by Mr. Juswhich was Puerto Plata, and I refused to tice Story: "Concealment, or even spoliatake it from our agent for Porto Rico. Ition of papers, is not of itself a sufficient swear that at my examination I did not think ground for condemnation in a prize court. of this, and it is only on my return from sign It is, undoubtedly, a very awakening cir. ing that the steward recalled it to me. I cumstance, calculated to excite the vigilance, never sought to disguise the truth, since I and to justify the suspicions, of the court wish to advise you of it as soon as possible.” But it is a circumstance open to explanation,

On the 5th of August the purser answered for it may have arisen from accident, neces. (527]the interrogatories, "and testified that papers sity, or superior force; and if the party in

were given him by the consignees of the the first instance fairly and frankly explains steamer at Port au Prince in a box at the it to the satisfaction of the court, it deprives time of sailing, and he found in the box one him of no right to which he is otherwise enmanifest of freight in ballast, and it was the titled. If, on the other hand, the spoliation same thing at Cape Haytien. At Puerto be unexplained, or the explanation appear Plata the agent of the company came on weak and futile; if the cause labour under board on their arrival there, and "the captain heavy suspicions, or there be a vehement pretold him that there was no Spanish Clear. sumption of bad faith, or gross prevariar ance; there was no need of it; and it was not' tion, it is made the ground of a denial of far

ther proof, and condemnation ensues from The log of the Olinde Rodrigues states: defects in the evidence which the party is not "6.30, noticed the heights of San Juan. At permitted to supply."

7.20, took the bearings of the fortress at 45 It should be remembered that the first dep. degrees, eight miles and one-half crosswise osition of the captain was given in answer to Noticed, at 7.50, a man-of-war. At 8.10, sbe standing interrogatories, and not under an signalled 'J. W.,' (“heave to and stop inoral examination; that the statute (R. S. § stantly”). I went towards it and made ar. 4622) forbade the witness “to see the inter rangements in order to receive the whale rogatories, documents, or papers, or to con- | boat which is sent to us." sult with counsel, or with any persons inter- In a communication to the Ambassador of ested, without special authority from the France at Washington, written July 17, and court", that he was born and had always purporting to give a full account of the matlived in France, and was apparently not con- ter, the captain said that he "was some time versant with our language; indeed, he pro- before seeing her signal, on account of the tested, as "neither understanding nor speak. distance and of the sun. Suspecting what ing English," "against all interpretation or she wanted, I hoisted the 'perceived' and translation contrary to my thought;" that stopped." the deposition having been read to him the He testified that he turned his vessel to day after it was taken, he detected its want the warship before the gun was fired, which of fullness, and immediately wrote the prize was at 8.12, but on this point the evidence

commissioners on the subject with a view to is strongly to the contrary. We are inelined (629]correction; "and that it was after this, and to think that some allowance should be made not before, that the purser testified.

for imperfect recollection in the rapid pass Transactions of this sort constitute in age of events. The Olinde Rodrigues was themselves no ground for condemnation, but comparatively a slow sailer (ten to twelve are evidence, more or less convincing, of the knots), and if the captain stopped on seeing existence of such ground; yet, taking the ev. the signal, and turned towards the war ship idence in this case together, we are not pre. with reasonable promptness, a settled pur. pared to hold that the explanation as to how pose to "defy the signal ought not to be im-(530 these bills came to be received on board, neg. | puted, whether she started towards the New lected when the papers were surrendered, or

endered Orleans just before, just after, or just as the and finally torn up, was not sufficient to ob

Goa not sufficient tech shot was fired. viate any decisive inference of objectionable

The stress of the contention of the govern

ment is, however, that the Olinde Rodrigues intention.

was on a course directly into the port of San The government further insisted that the Olinde Rodrigues refused to obey the signal | It is extremely difficult to be precise in such

Juan at the time her progress was arrested. from the New Orleans to heave to and stop a matter, as her course to reach St. Thomas instantly, and turned only after she had necessarily passed in face of San Juan. The fired, and that this conclusively established captain attached to his explanatory affidavit an intention to violate the blockade. The a sketch, "showing the usual route and the theory of the government is that the French actual route which he was taking at the time ship purposely held on so as to get ander the of the capture, with the position of the cap protection of the batteries of San Juan. | turing ship and his own ship," as follows: 1072

174 U.S.

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But it appears from the entries of the sec Juan, about 7 or 8 miles eastward of the ond officer on the log of the Olinde Rodrigues port, and about 9 miles from shore, about 9 that the ship was from one to five o'clock in miles from Morro. They judged the distance the morning of July 17 on the course (as cor. in passing as they do from all points." rected), S. 69 E., and that from six to eight. The second officer said that “they were 9 o'clock the course was S. 73 E.

miles from San Juan after having passed the The captain testified that at the time of port of San Juan and gone 4 miles east af capture "I had just passed the port of San I it."

This testimony strikingly confirms Cap-mitted "that south 69 is the proper course tain Folger's candid expression of opinion beforehand for the Culebra 'assage" (the that though the master of the Olinde Rod. passage through which to reach St. Thomrigues may have been going in and out of as), but contested that the French vessed that port for years, he did not measure the was making that course. distances, but “would run so far down the Lieutenant Rooney, the navigator of the boast and order them to steer to a certain New Orleans, laid down the positions upon point to head in."

a chart as follows: The commander of the New Orleans ad.

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) *The point C. is seven and two-thirds miles | one of them would be to pass about twelve from Morro, bearing S. W., and five miles miles north of the harbor of San Juan, and from point D., the intersection of a line that there was nothing impracticable in a drawn west with north and south mine vessel reaching Culebra Point, with a view through Morro. D. is five and two-thirds of going to St. Thomas, on a course of S. 69 miles from Morro. The range of Morro guns E. from midnight to 5 o'clock, and a change was six and one-half miles, and the range of at 5 o'clock to S. 73 E. He also testified the shore batteries, three miles east of Morro, that a vessel bound for San Juan on an ordialso six and one-half miles. According to nary commercial voyage would have been this plat, the Olinde Rodrigues was slightly nearer the shore than where the Olinde Rod. within the range of the Morro guns, but not rigues was when she was captured, and that within the range of the shore batteries. The it was probable that if she intended to go New Orleans when she fired was close to the to San Juan and avoid the New Orleans she range of the shore batteries and something would have hugged the shore and not been over a mile outside of the extreme range of out at sea. the Morro guns.

Some of the evidence, in short, had a tenAnd it is urged that the conclusion is in- dency to show that the Olinde Rodrigues, evitable that the French ship intended to run when sailing on a proper course for St. into the port and to draw the pursuing Thomas, would be drawing to the south, and cruiser within the range of the Spanish guns. that the New Orleans was to the north of If her being in the neighborhood were not her, in which case, obviously, the nearer the satisfactorily explained; if she persistently vessels approached the more open would the ignored the signal of the cruiser; and if her nasts of the Olinde Rodrigues appear. But course was a course into the port of San the clear preponderance was that the capJuan and not a proper course to reach St. tured ship was to the west of a north and Thomas,-then the conclusion may be ad. south line drawn through Morro, and runmitted; but it is not denied that she was in ning nearly south just before or when the the neighborhood in the discharge of her New Orleans fired. duty, and we have already seen that she may It is impossible to deny that the testimony be consistently regarded as not having defied of Captain Folger, the commander of the the signal.

New Orleans, and of his officers, was extremeOn the part of the captors, the witnesses ly strong and persuasive to establish that the concurred that the Olinde Rodrigues's course *Olinde Rodrigues, when brought to, was in-(535) was laid for the port of San Juan, while on tentionally heading for San Juan, and purher behalf this was denied, except so far as suing her course in such a manner as to draw her course for St. Thomas took her near the the blockading cruiser in range of the ene blockaded port. In addition to the witnesses mies' batteries, and yet we must consider it from the New Orleans the telegraph opera in view of the evidence on behalf of the captor on the Morro testified that the Olinde tured ship, and of the undisputed facts tendRodrigues was coming directly toward the ing to render it improbable that any design Morro, but changed her course when the shot of attempting to violate the blockade was was fired.

entertained. The Olinde Rodrigues had A principal reason given by the witnesses neither passengers nor cargo for San Juan; for concluding that the Olinde Rodrigues was in committing the offense, she would take making for San Juan was that her masts, as the risk of capture or of being shut up in seen from the deck of the New Orleans, were that port; she was a merchantman engaged open, thus indicating that she was sailing in her regular business and carrying the south or toward the port of San Juan. It mails; she was owned by a widely known was admitted that this would not necessarily and reputable company; her regular course, be so unless the New Orleans was on the same though interrupted by the blockade of that

line east and west with the other vessel, or, port, led directly by it, and not far from it; 14]in other words, if the *New Orleans were to and the testimony of her captain and officers

the north of the Olinde Rodrigues, the lat. denied any intention to commit a breach.
ter's masts might appear open without nec- The evidence of evil intent must be clear
essarily indicating that she was sailing and convincing before a merchant ship be-
south, or towards the land. Lieutenant longing to citizens of a friendly nation will
Rooney did not see her until after she was be condemned. And on a careful review of the
captured. He is positive as to the approxi- entire evidence, we think we are not com-
mate position of the New Orleans early in pelled to proceed to that extremity.
the morning before the Olinde Rodrigues was But, on the other hand, we are bound to
sighted, which had not occurred when he say that, taking all the circumstances to-
went below at 7.30, and he is positive as to gether and giving due weight to the evidence
the position of the New Orleans after the on behalf of the captors, probable cause for
capture. He places the position of the New making the capture undoubtedly existed;
Orleans at 6.50, when the last bearing ob- and the case disclosed does not commend this
servation was taken, at fifteen miles north of vessel to the favorable consideration of the
the coast and of the Morro. At nine o'clock court.
bearings were again taken, and she was Probable cause exists where there are cir-
about seven and two-thirds miles from the cumstances sufficient to warrant suspicion
Morro. Lieutenant Rooney explained in his though it may turn out that the facts are
testimony the proper courses for a vessel not sufficient to warrant condemnation.
sailing to St. Thomas, and stated that sever. And whether they are or not cannot be de-
al courses might be properly steered, that 'termined unless the customary proceedings

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