1821. The Amiable provided for in the treaty. This exposition is the only one consistent with the spirit of the treaty, and is in furtherance of its avowed object, which was that the flag should protect the property sailing under it, if used by authority of the neutral nation. This exposition is conformable to the English version of the treaty, but is absolutely required by the Spanish ; and even if there were any difference of meaning, we are bound in honour and good faith to adopt the latter, since Spain has always acted upon it, and has seldom or never thought it necessary to document her ships according to the literal réquisitions of the treaty. Unless this exposition is admitted, the whole. of the clause in question is nugatory. By the universal law and usage of nations, every captured vessel is at liberty to account for the want of formal documents." It would, therefore, have been superfluous to insert a provision in the treaty to this effect. Something more must have been intended by the use of terms, which are to be found in no other treaty. In the case now before the Court, the omission of the required document is fully accounted for by the actual state of the mother country at the time, and by the declaration of the colonial Governor when he granted the substituted document. This ought to be considered as equivalent proof, because it is next in dignity, and approaches very nearly to a level with the royal passport itself. It is issued by an officer who is only not King; who would have been charged with the delivery and control of royal passports; who expressly declares, that it was issued in a The Pizarro, 2 Wheat. Rep. 244. lieu of such; and certifies every fact which would have been stated in a royal passport. The other documents are superadded to that which would alone have been required, had the formal requisitions of the treaty been complied with, and are abundantly sufficient to establish the proprietary interest in the ship. They are supported by the depositions of the captured crew, who are required by the navigation laws of Spain to be Spanish subjects, and whose national character conforms to this requisition. 4. Again. If there be no passport such as is required by the treaty, and no such equivalent testimony as the treaty provides, still the claim to the ship is established by evidence such as the law of nations requires to establish it; and if the property of the ship is shown to be Spanish, that is sufficient to protect the cargo to whomsoever belonging." She is furnished with all the usual documents, and none are of a suspicious or irregular character. They are supported by the testimony of all the witnesses, except one; and he was improperly examined, not being produced in his regular order, but kept back until other witnesses had been examined, contrary to the well-known rule of the Prize Court, which requires the captors to introduce all the witnesses in succession. Even if the proprietary interest in the cargo should be thought doubtful, that being included in the same claim with the ship, will not necessarily involve both in condemnation; for, an at The Pizarro, 2 Wheat. Rep. 227. The Speculation, 2 Rob. 242. The William & Mary, 1821. The Ainiable Isabella. 1821. tempt to conceal enemy's property only affects the The Amiable right to farther proof." But we insist that farther Isabella. proof is not required in this case; and if the national character of the ship be established by the original evidence, the conventional law entitles us to restitution of the cargo, as a matter of course.' 5. Lastly. Supposing the original evidence in the cause insufficient to entitle the claimant to restitution, either according to the provisions of the treaty, or by the general law of nations, it is insisted that all the difficulties of the case are removed by the farther proof produced, which establishes the proprietary interest of both ship and cargo as claimed. Mr. Wheaton, for the captors and respondents, 1. answered the objection taken by the claimant's counsel to the validity of the commission under which the capture was made. This is exclusively a question between the captors and the United States. The claimant has no persona standi in judicio to assert the rights of the United States, and it is not until after the determination of the principal question of prize or no prize, that the claim of the government can be interposed. This is not only our own practice, but is the prize law of France, and England, and of the whole maritime world. Even a The Madonna del Burso, 4 Rob. The Dos Hermanos, 2 Wheat. Rep. 94. d 2 Bro. Civ. & Adm. Law, 524. 2 Woodes. Lect. 432. 3 Bulstr. Rep. 27. 4 Inst. 152. 154. Zouch. Adm. Jurisd. c. 4. p. 101. Comyn's Dig. tit. Admiralty E. 3. The Georgiana, 1 Dodson's Rep. 397. The Diligentia, 1 Dodson's Rep. 403. Valin. if the present capture be a droit of admiralty, as taken by non-commissioned captors, that will not invalidate the capture, if it be of enemy's property. This is to be determined after a general decree of condemnation is entered, and before a final distribution of the prize proceeds. If the Government shall interpose a claim at that stage of the proceedings, it will then be time enough to consider a question in which the foreign claimant has no interest or right to interfere. 2. The vessel and cargo in this case are liable to condemnation as prize of war, having left the Havana with a false destination. The claim sets up an alternative destination, to an enemy's or a neutral port; but it is contradicted by the documentary evidence and the depositions of the captured persons. This false destination is not excusable on the ground of the necessity of deceiving an enemy by clearing out for a neutral port. Spain was at that time at peace with all the world, except her revolted colonies; and both London and Hamburg were equally neutral ports in respect to the South-American cruizers. A false destination under such circumstances is damnatory, if the case be so infirm as to require farther proof; because it could only be intended to conceal enemy interests, and if alternative, it ought to appear to be such on the face of the papers, in order that captors may not be misled." Comm. 1. 3. tit. 9. des Prises, art. 1. Pothier, de Propriété, No. 93. Casaregis. Disc. 24. Consolato del Mare, c. 287. a The Juffrouw Anna, 1 Rob. 125. The Welvaart, 1 Rob. 122. The Nancy, 3 Rob. 125. The Mars, 6 Rob. 79. 86. The Vrouw Hermina, 1 Rob. 164. 1821. The Amiable 1821. Isabella. 3. The proofs of proprietary interest, upon the oriThe Amiable ginal evidence, are not such as to entitle the claimant to restitution, without farther proof. As to the ship, there is no doubt that if bona fide Spanish property, and documented according to the treaty, she must not only be restored, but the cargo also must be included in the restitution, even if proved to be enemy's property. But it is insisted that the treaty does, not extend to a fraudulent use of the Spanish flag to cover enemy's property in the ship as well as the cargo." The passport, even supposing it to be such as the treaty requires, is falsified by the muster-roll and other documents; and it was not produced, as the treaty requires, to the captors, but found on board after the capture. Fraud will vitiate even a judgment, and the most solemn instruments and assurances. This is a principle of universal law, and it would be indecent to suppose that Spain countenances such an improper use of her flag and pass. Is there, then, that equivalent testimony which the treaty substitutes for the formal passports? The law very properly requires the bill of sale to be on board where the vessel is transferred from the original proprietor.' Even Hubner, the great champion of neutral rights, admits this to be the rule. But here the vessel is not Spanish built; yet no bill of sale is found on a The Minerva, 1 Marriott's Adm. Dec. 235. The Cittade de Lisboa, 6 Rob. 358. The Eendraught, Ib. Note (a.) The Estern, 2 Dall. 36. b The Welvaart, 1 Rob. 122. c De la Sais. des Batim. Neutr. Part. 1, c. 3. s. 10. |