The Amiable making awkward apologies for his asserted igno- 1821. rance of the former ownership, and endeavouring to allay the well-founded distrust of that Government. To this very hour the claimant has observed a profound silence on this point, a source of just and pregnant suspicion, although he has loaded the cause with documentary proofs and affidavits on other points. He has not chosen to give any information as to the origin of the bottomry bond, or former ownership of the vessel, or of the circumstances under which the supposed lien was acquired. Yet these facts would seem to have lain immediately within his reach. On board, too, of the vessel at the time of the capture, was the special and confidential agent of Messrs. Von Harten and Gobel, and also the brother-in-law of Mr. Von Harten. Some papers were thrown over board, others were concealed, and others spoliated. The testimony of the witnesses upon the standing interrogatories, was far from satisfactory; and it is extremely difficult to exempt the agents on board the vessel from the imputation of designed suppression of facts and prevarication. The claimant, Mr. Munos, is the father-inlaw of Mr. Gobel, and claims this very valuable shipment as his own property, asserting himself to be a merchant now engaged in business. And yet it is proved by a weight of testimony that seems difficult to resist, that Mr. Munos has not been known to be engaged in commercial business on his own account for at least fifteen years before the time of this shipment. And it is established in the most satisfactory manner, and is indeed admitted by the claimant him 1821. The Amiable self, that on account of the foreign character of Mr. Gobel, (the son-in-law of Mr. Munos,) all the foIsabella. reign business of Mr. Gobel has been constantly carried on for several years under the cover of Mr. Munos. These are a few of the extraordinary facts of this case, and combining them with the indications of the papers found on board, and the suppressed documents which have reached the light; the vehement presumption, and almost written proof, that Mr. Gobel, the admitted partner of the English house of Von Harten and Gobel, was the stationed agent of that house at the Havana; and the fact, that the destination was alternative, or double, to London or Hamburg, or both; the conclusion is difficult to overcome, that the cargo was the property of Messrs. Von Harten and Gobel, or some other unknown enemy proprietor, and covered by the Spanish character of Mr. Munos. And the Court is constrained to consider the proceeding at the Havana as mere machinery to naturalize an enemy's ship, and that the ship, either previously belonged to Messrs. Von Harten and Gobel, or some other enemy proprietor, or was purchased at New-Providence on his or their account. It is perfectly immaterial whether Mr. Munos had any subordinate interest in the ship and cargo or not. If his claim be substantially false in the manner in which it is framed, having been adopted by him, he has justly incurred a forfeiture of any such interest, by attempting an imposition upon the Prize Court. It is the judgment of the Court, that the decree of the Circuit Court, condemning the ship and cargo, be affirmed, with costs. From so much of this opi nion as respects the question of proprietary interest of vessel and cargo, three Judges dissent. Mr. Justice JOHNSON. This is an appeal from the sentence of the Circuit Court of North Carolina, condemning this vessel and cargo as prize of war to the Roger privateer. The condemnation below appears to have proceeded on evidence of an hostile interest existing in the ship. For, as to the cargo, it is not denied that the proprietary interest is immaterial; since, if the ship be Spanish, the existence of an enemy interest in the cargo, does not affect it. Yet, much of the evidence and argument have been introduced to prove the existence of an hostile interest in the cargo; but it has been with a view to maintain two positions 1st. That it is a strong circumstance to prove the vessel to be British property; and, 2d. That, though it be not enemy owned, yet, as both vessel and cargo are claimed by the neutral, if it be proved that he has attempted a fraud, the penal consequence is the forfeiture of his own interest. It cannot be denied, that there are many circumstances in the case, going strongly to prove too intimate a connection, between this adventure, and the mercantile transactions of the house of Gobel, consisting of Gobel and Von Harten, a British merchant. Nor is it entirely clear that Rahlives, who appears in the machinery as supercargo, is not himself a participator in interest. If I felt myself now called upon to decide this case on the ordinary prinVOL. VI. 11 1821. The Amiable 1821. The Amiable ciples which govern the decisions of Prize Courts, on neutral claims; it must be acknowledged, that there is a good deal of evidence which must be rejected, in order to clear it from the tissue of difficulties in which the circumstances involve it. Yet there is one important consideration which rides over all the unaccountable combinations of interest which present themselves to the view of the Court. Why should British property on board a Spanish vessel have been disguised as Spanish? There are obvious reasons why Spanish property should have been disguised as British; for, it would have afforded protection against the only enemy a Spaniard had to fear-the patriot privateer. But, as England was at peace with all the world except America, and enemy property secure from American capture in a Spanish vessel, it is difficult to conceive a reason why this disguise should have been thrown over a British cargo. The course, however, which I will pursue in coming to a conclusion, precludes the necessity of disentangling the web, in which the interests of the claimant are wound up by the various circumstances of the destruction, mutilation, and concealment of papers, and the questionable shape in which several of the actors in the drama present themselves to the view of this Court. The claimant founds his right to restitution, on his Spanish character, and the sufficiency of his Spanish documents under the treaty. The captor contends, that the documents found on board, were not of the first order under the treaty, and that when let in to the production of substitutes, a plenary inquiry is opened into proprietary interest. Before entering upon these more general questions, it is necessary to take notice of a preliminary ground of condemnation, which, if it can be sustained, anticipates every other inquiry. It appears, that the vessel left the Havana under convoy of a British frigate, and, it is contended that this circumstance is, per se, a ground of condemnation. This is, at least, a new ground in this Court; and it cannot be expected that it will meet with a very favourable admission from a Court which has manifested no disposition to multiply causes of condemnation. Without being supposed to express any inclination to adopt the principle, I deem it sufficient to remark, that if it could be admitted, it ought not to be applied to a nation which needed that protection against an existing and enterprising enemy; and which ought, therefore, to be considered, as having sought it for that purpose, and not against a neutral, whose principles of conduct it had then no reason to distrust. The Gulph of Florida, at that time, swarmed with patriot privateers; and the convoying ship had, moreover, parted from the fleet before this capture was made. The conduct of this vessel was perfectly pacific when overhauled by the American cruiser. The utmost to which the Courts of Great Britain have gone, has been to affect the merchant vessel actually taken under convoy, with the resistance or character of the convoying ship; and when such a case shall occur, it will be time enough for this Court to determine on the course it 1821. The Amiable |