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The Amiable Isabella. 6 W.

would be, in literis, would be to exercise a sovereign control over the compact itself.

Nor are the circumstances already stated, mere form, or diplomatic ceremony. They might well have entered into the very substance of the stipulation. The counsel for the claimant alleges, that the passport, intended by the treaty, was to import perfect, unimpeachable verity ; that it was to have a sanctity beyond that which is granted to any other solemn instrument. Fraud would not vitiate it, nor the most direct, unequivocal breach of good faith, or abuse of the passport, bring its protecting virtue into question. Assuming for the purpose of argument, that this is true, the form of the passport, and the solemnities accompanying it, were of the deepest interest and importance to both nations. It was vital to the treaty; vital to the acknowledged rights derived under the law of nations. The immunity intended by the treaty, in this view of it, was a dero

: gation from the general belligerent rights of both parties. 1 * 75 | They might be willing to confide the * issuing of such pass

ports to the Spanish high officers of state with the royal approbation and signature, or with the corresponding signatures of our own secretary of state and President. They might have full faith and confidence that, under such guards, the danger of abuses would be very much diminished, if not entirely checked. But they might not be willing to trust to the integrity, discretion, and watchfulness of subordinate agents; to officers of the customs; to colonial governors, or commanders in distant provinces. In point of fact, our own passports have issued under the authority and signatures of our highest executive officers. What reason has this court to presume that our government would accept of a verification by inferior officers of Spain? What reason has this court to presume that our government would have been satisfied with a passport signed by a colonial governor for want of royal passports ? It has not been so stipulated in the treaty. It has not, in terms, dispensed with the annexation of the form of the passport to the treaty. Even if one government had been willing to dispense with it, it remains to be shown that the other was also willing. And if both were willing, it would still remain to be shown that the act of dispensation was consummated by a solemn renunciation; for the obligations of the treaty could not be changed or varied but by the same formalities with which they were introduced; or at least by some act of as high an import, and of as unequivocal an authority. All that can be

said in the present case, is, that the subject of the annexa. [ *76 ] tion of the passport was taken ad * referendam by the par

ties. They had competent authority so to do; and this

The Amiable Isabella. 6 W.

court is bound to presume that they had good reasons for their conduct. It is far more consistent with every fair interpretation of the acts of the government, to suppose that the form of the passport was postponed with a view to the suspension of the article until the subject was more deliberately considered, or could be more conveniently attended to, than to suppose that words of reference were used without meaning, and forms carrying with them such important and interesting solemnities, and such obligatory force and dignity, were hastily abandoned at the very moment they were studiously sealed to the text. Unless this court is prepared to say that all forms and solemnities were useless and immaterial; that neither government had a right to insist upon a form after having assented to the terms of the article; that a judicial tribunal may dispense with what its own notions of equity may deem unimportant in a treaty, though the parties have chosen to require it; it cannot consider the 17th article of this treaty as complete or operative, until the form of the passport is incorporated into it by the joint act of both governments.

Upon the whole, it is the opinion of the court, in which opinion six judges agree, that the form of the passport not having been annexed to the 17th article of the treaty, the immunity, whatever it was, intended by that article never took effect; and therefore, in examining and deciding on the case before us, we must be governed by the general law of prize.

* This view of the case renders it unnecessary to consider [ *77] the other points made by the counsel for the captors, as to the effect of the treaty; and we therefore give no opinion upon them.

It remains, then, to consider, whether the ship and cargo now in judgment, are, in fact, neutral or hostile property. The facts are extremely complicated, and the evidence, in many instances, clashes so as to forbid all hopes of reconciling it. It cannot be disguised, too, that the claim is involved in much perplexity, and is shaded by some circumstances that have not been entirely cleared away. If it were not a task from which we could derive no general instruction, the whole evidence might be minutely examined, as to the questions of false destination, suppression of papers, and use of false papers. But the labor would be very great, and, after all, would conduce to no important purpose. We shall content ourselves, therefore, with a brief statement of the result of our opinion.

It is to be recollected that, by the settled rule of prize courts, the onus probandi of a neutral interest rests on the claimant. This rule is tempered by another, whose liberality will not be denied, that the evidence to acquit or condemn, shall, in the first instance, come from

The Amiable Isabella. 6 W.

the ship's papers, and persons on board; and where these are not satisfactory, if the claimant has not violated good faith, he shall be admitted to maintain his claim by further proof. But if, in the event, after full time and opportunity to adduce proofs, the claim is still

left in uncertainty, and the neutrality of the property is not [ *78 ] established * beyond reasonable doubt, it is the invariable

rule of prize courts to reject the claim, and to decree condemnation of the property. There is another rule, too, founded in the most salutary and benign principles of justice, that the assertion of a false claim, in whole or in part, by an agent of or in connivance with the real owners, is a substantive cause of forfeiture, leading to condemnation of the property. These principles are not alluded to in this case, for the purpose of founding our present judgment upon them; for we do not rely upon it as a case merely of reasonable doubt; but to show that a case less strong might justly have supported the decree we feel ourselves bound to pronounce -of condemnation.

We cannot resist the conclusion, looking to the whole evidence, that this is a case where the whole mercantile adventure had its origin in the house of trade of Messrs. Von Harten and Gobel, a house domiciled in London. The ship was, beyond all question, a foreign ship; but of what nation, and in whose ownership at the time when she acquired her ostensible Spanish character, are studiously concealed. She came just before her naturalization from New Providence; and that naturalization was procured, as we feel ourselves constrained to believe, by an imposition practised upon the Spanish judicial authorities, by means of a pretended lien under a bottomry bond, supposed to be given for repairs. The holder of the bond procured a judicial sale of the vessel, became himself the pur

chaser, and afterwards obtained the Spanish character by a | *79] negotiation with the Spanish colonial government, * making

awkward apologies for his asserted ignorance of the former ownership, and endeavoring 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.

The Amiable Isabella. 6 W.

Some papers were thrown overboard, 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-in-law 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 * himself, that on [ *80] account of the former character of Mr. Gobel, (the son-inlaw of Mr. Munos,) all the foreign 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, [ * 81 ] with costs. From so much of this opinion as respects the question of proprietary interest of vessel and cargo, three judges dissent.

Johnson, J. This is an appeal from the sentence of the circuit The Amiable Isabella. 6 W. 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: 1. That it is a strong circumstance to prove the vessel to be British property; and, 2. 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 prin[ * 82 ) 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

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