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Spanish subject, by perpetrating a fraud upon his own government, lends the protection of its flag to a foreigner, that Spaniard becomes himself an enemy, and cannot justly complain if he suffers the fate of an enemy. It is no disrespect to Spain, or disregard of her national rights, to refuse the benefit of her flag and pass, where they have been obtained by practising an imposition upon her officers. She can claim no greater respect for their acts than is conceded to the judgments of the highest Courts of justice. But even these are vitiated by fraud, according to the law of every country. Great Britain so understands the effect of a similar treaty stipulation. In the case of the Cittade de Lisboa," which was determined under the British treaty with Portugal, containing the principle of free ships, free goods, though the vessel had the Portuguese flag and pass, she was condemned because a box of papers was found on board falsifying the claim, and showing the property to be enemy's; and to give more solemnity to the judgment of the Court, the Portuguese Consul was called in to witness it, and admonished to advise his government to be more vigilant over the conduct of its officers in this respect. So, also, our own Court of Appeals in prize causes, during the war of the revolution, held the general maxim of free ships, free goods, which had been temporarily recognized in an ordinance of Congress, not to extend to a case of fraudulent combination between the enemy and neutrals to defeat the belligerent rights of the United States and her ally. In that case, the Court ob

a 6 Rob. 358.

Darby v. The Estern, 2 Dall. 35.

1821.

The Amiable
Isabella.

1821.

Isabella.

served, that Congress had not said that a violated The Amiable 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.

sale was had, are manifestly collusive and fraudulent. The claim to the cargo is also supported by mere formal documents, unsupported by the oaths of witnesses, and contradicted by the evidentia ræi. The spoliation and concealment 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 destination; and that even a false destination is not a substantive cause of condemnaVOL. VI.

6

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The Amiable

Isabella.

1821.

The Amiable
Isabella.

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 penitentia 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
Isabella.

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