1821. Isabella. served, that Congress had not said that a violated The Amable neutrality should protect; and the mention of some exceptions to the general immunity, (such as contraband, &c.) does not exclude others, equally flagrant, though not mentioned. So in this case, the exceptions of blockade and contraband, do not exclude other cases of unneutral conduct; and some implied exceptions there must be, or how could the Court engraft the exceptions of the propery, of citizens of the United States trading with the enemy, or of Spanish subjects not actually domiciled within the dominions of Spain, both of which cases are excluded from the general operation of the treaty, according to the opinion of this Court in the Pizarro. If, then, the case is not within the protection of the treaty, does either the original evidence, or the farther proof, satisfy the Court of the property of the ship and cargo being as claimed? This inquiry cannot be limited to the ship, because if that was really Spanish, it would be sufficient to protect the cargo also: but both are included in the same claim, which is given for the same person; and if the claim for the cargo be false, that will also affect the claim to the ship. If the ship was Spanish property, why seek to show that the cargo was Spanish also? The proprietary interest in the ship is supposed to have been acquired under a judicial sale upon a bottomry bond. But the previous history of the ship is not satisfactorily explained, and so far as it is given, points to an enemy origin and the proceedings under which the a 2 Wheat. Rep. 245. 246. Isabella. sale was had, are manifestly collusive and fraudu- 1821. lent. The claim to the cargo is also supported by The Amiable mere formal documents, unsupported by the oaths of witnesses, and contradicted by the evidentia ræi. The spoliation and concealme..t of the papers are not satisfactorily explained. Such explanation could only proceed upon the ground of the papers being innocent in themselves, and that they were destroyed from a necessity unconnected with an attempt to evade the right of search. But as to the papers thrown overboard, all that we know of their character is, that they came from the compting house of the claimant, who ordered them to be thrown overboard, in case of capture; and as to the supposed necessity of destroying them, the only reason alleged is the fear of South American cruizers. This could not be the true reason, since the papers retained on board would equally show the Spanish ownership of the ship and cargo, which it is now insisted they are sufficient to establish. And as to the papers mutilated and concealed, a careful inspection of them will satisfy the Court, that they point to the English origin of the adventure, and to English interests in its results. The learned counsel concluded by a very minute and able analysis of the proofs of proprietary interest. Mr. Harper, for the claimant and appellant, in reply, (1.) insisted that the destination of the vessel, in this case, was not a false destiuation; and that even a false destination is not a substantive cause of condemnaVOL. VI. 6 1821. The Amiable tion. A false destination, is an unlawful destination concealed: but here the alternative destination did, in fact, appear on the face of the papers, and both London and Hamburg were equally lawful ports for Spanish vessels to trade with. In the cases of the Juffrouw Anna" and the Welvaart,' the false destination was combined with other circumstances of illegal conduct or suspicion, and the condemnation did not proceed upon that ground alone. In the case of the Nancy, it was also connected with the offence of carrying contraband goods on the outward voyage. So the case of the Mars, was that of engaging in the colonial trade of the enemy, attempted to be concealed by a false destination; and farther proof being necessary, it was refused on account of those circumstances of fraud and illegality. 2. Nor ought the present case to be affected by the fact of the vessel having set sail from the Havana under convoy of a British frigate. This protection was necessary against South American cruizers, to whom Spanish property would have been good prize. But the Isabella intended to leave her convoy off the coast of Florida, and such an intention admits of a locus penitentiæ which was availed of: for she had in fact left the fleet, before the capture. The case of the Hanse vessels taken under Swedish convoy was very different from this." The Swedish a 1 Rob. 125. b 1 Rob. 122. c 3 Rob. 125. d 6 Rob. 79. e The Elsebe, 5 Rob. 173. armed vessels prepared to resist, and only yielded to the terror of a superior force; and the Hanse vessels were affected by what was considered as an actual resistance of the convoy, having associated themselves under its protection. 3. As to the spoliation and concealment of papers, the facts do not warrant the inference of its having been done for unlawful purposes. There is no evidence whatever that the papers thrown overboard were connected with this transaction. The concealed papers were innocent; and were even essential to show the Spanish interest in the cargo: and as to the mutilation, if practised at all, it must have been by the captors themselves, as they alone had an interest in defacing papers which were material to the claimant's proofs of property. The fact as to the papers thrown overboard was frankly and freely disclosed by the parties who alone had any knowledge of it, and a satisfactory reason for their conduct assigned by them on their first examination. Even supposing, however, that the fact of the spoliation and suppression of papers would, under other circumstances, exclude the claimant from the benefit of farther proof, it is now too late for the captors to object, an order for farther proof having been granted in the Court below, without any objection on their part." 4. The passport in this case is sufficient to establish the national character of the ship, so as to protect both her and the cargo under the treaty with a The Pizarro, 2 Wheat. Rep. 227. 240. 1821. The Amiable 1821. The Amiable Spain. It is one of a series of passports issued by the Governor of the island of Cuba; is numbered Isabella. 94, showing that many more of the same kind had been issued; and the words "For want of royal passports" are printed, which circumstance shows that it was an established formula. The circumstances of the Spanish nation at that period, when Ferdinand had been just restored to the throne, sufficiently explain the cause of the defect of passports, with the king's sign-manual. The very act of exercising such an authority on the part of the colonial Governor, is strong prima facie evidence of his possessing the power; and until rebutted by some contrary proof, must be considered as conclusive that such is the usage of Spain, There is no substantial difference between such a document and royal passports; since the latter must be issued in blank, and sent to the different ports throughout the extent of the Spanish dominions, and the distribution of them entrusted to subordinate officers, so that the same frauds may be perpetrated as are imagined in the present instance. What better security have we that the royal passport itself will not be employed to protect the trade of our enemy? It may be safely admitted, that you may inquire so far as to ascertain that the passport is not forged, or obtained by criminal means, or fraudulently applied to a vessel, for which it was not issued: But if uone of these circumstances occur, and the passport regularly issues, from an authority which is competent to grant it according to the local usages of the neutral country, the treaty makes it conclusive, on the question of |