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 a The Pizarro, 2 Wheat. Rep. 227. The Speculation, 2 Rob. 242. The William & Mary, 4 Rob. 312. VOL. IV. 1821. The Amiable 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. b The Pizarro, 2 Wheat. Rep 227. c The Dos Hermanos, 2 Wheat. Rep. 94. d 2 Bro. Civ. & Adm. Law, 524. 2 Woodes. Lect. 432. 3 Bulsir. Rep. 27. 4 Inst. 152 154. Zouch. Adı. Jurisd. c. 4. p. 101. Comyn's Dig. tit. Admiralty E. 3. The Georgiana, I 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 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, out 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. board, and the circumstances strongly point to the previous existence of enemy interests in the vessel, which it appears came from New-Providence. The purchase of enemy's vessels by neutrals is entirely prohibited by the ordinances of some countries; and our law regards it as suspicious. If still continued to be employed in the enemy's trade, or under the control of an enemy, this is deemed a badge of fraud, and conclusive evidence that there has been no bona fude transfer. The ship then is not documented bona fide, as the treaty requires, nor is the substituted proof equivalent to that for which it is substituted. The ship, therefore, will not protect the cargo, nor is the latter so documented as to protect itself, or avoid being involved in the same fate with the vessel. To be sure, there are the usual formal documents, and so there are in every case. But they contradict each other; and being fraudulently blended in the same false claim with the ship, they must be included in the same condemnation, Both being alleged to belong to the same claimant, and he having attempted to assert a false claim to the ship, the entire claim must be rejected as a penalty for his fraudulent conduct." 4. But the passport in this case, even supposing it not to have been fraudently obtained and used, is not such as the treaty requires, being issued by an authority incompetent to grant such a document of a The Bernon, 1 Rob. 102. The Sechs Gedchwistern, 1 Rob. 100. The Argo, 1 Rob: 153. The Jemmy, 4 Rob. 31. The Omnibus, 6 Rob. 71. c The St. Nicholas, 1 Wheat. Rep. 417. The Fortuna, 3 Wheat. Rep. 236. 1821. The Amiable |