Thatcher, (Mayhew v.) [ConstituTIONAL Law. Lo CAL LAW.] U 119 129 United States v. Williams, [CONSTRUCTION OF STATUTE.] 135 The Universal Insurance Company, (Smith v.) [INSU RANCE.] The United States v. Six Packages of Goods. [In 177 520 542 The Union Bank v. Hyde, [PROMISSORY NOTES.] 572 Virginia, (Cohens v.) [Constitutional Law.] 264 W Withers, (The Mechanics' Bank v.) [LOCAL LAW. Wilkins, (United States v.) [CONSTRUCTION OF STATUTE.] 106 135 240 Whether the capture is made by a duly commissioned captor, or not, is a question between the Government and the captor, with which the claimant has nothing to do. If the capture be made by a non-commissioned captor, the Government may contest the right of the captor after a decree of condemnation, and before a distribution of the prize proceeds; and the condemnation must be to the Government. The 17th article of the Spanish treaty of 1795, so far as it purports to give any effect to passports, is imperfect and inoperative, in consequence of the omission to annex the form of passport to the treaty. Quare Whether, if the form had been annexed, and the passport were obtained, by fraud and upon false suggestions, it would have the conclusive effect attributed to it by the treaty? Quare-Whether sailing under enemy's convoy be a substantive cause of condemnation ? By the Spanish treaty of 1795, free ships make free goods; but the form of the passport, by which the freedom of the ship was to have been conclusively established, never having been duly annexed to the treaty, the proprietary interest of the ship is to Vor VI. 1 1821. The Amiable be proved according to the ordinary rules of the Prize Court, and if thus shewn to be Spanish, will protect the cargo on board, to whomsoever the latter may belong. By the rules of the Prize Court, the onus probandi of a neutral interest rests on the claimant. The evidence to acquit or condemn, must come, in the first instance, from the ship's papers, and the "xamination of the captured persons. Where these are not satisfactory, farther proof may be admitted, if the claimant has not forfeited his right to it by a breach of good faith. On the production of farther proof, if the neutrality of the property is not established beyond reasonable doubt, condemnation follows.. The assertion of a false claim, in whole or in part, by an agent, ‘or in connivance with the real owner, is a substantive cause of condemnation. APPEAL from the Circuit Court of North Carolina. This was the case of a ship and cargo, sailing under Spanish colours, and captured by the privateer Roger, Quarles, master, on an ostensible voyage a As the form of the commission issued to the privateer, in this case, is one of the points discussed in the argument, it is thought necessary to insert it. James Madison, President of the United States of America, to all who shall see these presents, greeting: Be it known, that in pursuance of an act of Congress, passed on the 26th day of June, one thousand eight hundred and twelve, I have commissioned, and by these presents do commission, the private armed schooner called the Roger, of the burthen of 184 tons, or thereabouts, owned by Thomas E. Gary, Hy. Gary, James B. Cogbill & Co. Brogg & Jones, Hannon & High. Robert Ritchie, Robert Birchett, John Wright, Wm. C. Boswell, Samuel Turner, John G. Heslop, Wm. & Charles Carling, Thomas Shoe, Richard B. Butte, Richard Drummond, Littlebury Estambuck, John Davis, Spencer Drummond, Peter Nestell, and Roger Quarles, mounting fourteen carriage guns, and navigated by ninety men, hereby authorizing Captain from Havana to Hamburg, but really destined for London, or with an alternative destination, and orders to touch in England for information as to markets, and further instructions. The ship sailed from the Havana, on the 24th of November, 1814, under and John Davis, Lieutenant of the said Schooner Roger, and the other officers and crew thereof, to subdue, seize, and take any armed or unarmed British vessel, public or private, which shall be found in the jurisdictional limits of the United States, or elsewhere, on the high seas, or within the waters of the British dominions; and such captured vessel, with her apparel, gans and appurtenances, and the goods or effects which shall be found on board the same, together with all the British persons and others,who shall be found acting on board, to bring within some port of the United States; and also to retake any vessels, goods, and effects, of the people of the United States, which may have been captured by any British armed vessels, in order that proceedings may be had concerning such capture or recapture, in due form of law, and as to right and justice shall appertain. The said is further authorized to detain, seize, and take all vessels and effects, to whomsoever belonging, which shall be liable thereto, according to the law of nations, and the rights of the United States, as a power at war, and to bring the same within some port of the United States, in order that due proceedings may be had thereon-this commission to continue in force during the pleasure of the President of the United States, for the time being.. Given under my hand, and the seal of the United States of JAMES MADISON. 1821. The Ainiabie (Signed) By the President, (Signed) JAMES MONROE, Secretary of State. 1821. convoy of the British frigate Ister, with which she The Amiable parted company on the 1st of December, the frigate having gone in chace of an American privateer; and on the 3d of December, was captured by the privateer Roger, and carried into Wilmington, North Carolina, for ad udication. The ship and cargo were condemned as prize of war in the District Court of North Carolina, and the sentence was, after the admission of farther proof in the Circuit Court, affirmed by that Court. An appeal was then allowed ·· to this Court, with permission to introduce new proof here, if this Court should choose to receive it. The original evidence consisted of the papers found on board the captured vessel, and delivered up to the captors, by the master, at the time of the capture; and of certain other documents afterwards. found concealed on board, or in the possession of Rahlives, the supercargo, or of one Masuco, alias Burr, a passenger on board the Isabella. Some of the ship's papers were mutilated, and attempted to be destroyed, and others were thrown overboard, and spoliated. The paper of which the following is a translation, was the only one delivered up by the master, at the time of the capture: "Dou Jose Sedano, Administrator General of the Royal Revenues of this port of Havana, in the island of Cuba, &c. certify that by authority and knowledge of the General Administrator of the Revenues under my charge, permission has been given to ship in the Spanish ship called the Isabel, Captain Don Francisco Cacho, with destination for Hamburg, viz. : |