1821. The Amiable the protection of Swedish convoy, the latter having assumed a hostile character for the purpose of resisting the right of search, they were equally held liable to confiscation." Such, also, is the law of Denmark, a state that has always professed to maintain the mildest principles of prize law." In his correspondence with the Danish government, Mr. Erving, our minister, admits the extreme difficulty of upholding the contrary doctrine; and only seeks to escape from it by contending that the rule could not extend to vessels forced into the convoy, or accidentally involved in the enemy's fleet: and this may readily be admitted without at all weakening the force of the general rule. 6. This is an aggravated case of spoliation and concealment of papers. Were this Spaniard to be tried by his own law, he would be instantly condemned. By the law of the whole world, except that of the United States and Great-Britain, spoliation of papers is per se a cause of confiscation: and by our law it is all but damnatory. If the spoliation is unexplained, or the explanation is unsatisfactory; if the cause labours under heavy suspicions or gross prevarications, farther proof is denied, and condemnation inevitably follows. And it is a relaxation of the rules of the Prize Court to allow farther proof even where there has been a mere concealment of a The Elsebe, 5 Rob. 173 b 4 Hall's Law Journ. 467. Ordonn. of 1810. c The Pizarro, 2 Wheat. Rep. 241. The Rising Sun, 2 Rob. 106. The Hunter, 1 Dodson's Rep. 486. papers." But here are both suppression and spolia 1821. Isabella. tion; and a case which escapes from this imputation, The Amiable (to use the emphatic language of Sir W. Scott) "is saved as by fire." In the present case, the spoliation and concealment are not only unexplained, but inflame the other circumstances of suspicion. The acts of the supercargo, in this respect, bind the owners, because he is their confidential agent; and the ship-owner is always bound by the misconduct of the master in all respects. So, also, the act of the master binds the owner of the cargo, if he is also the owner of the ship; and according to a decision of the Lords of Appeal, whether he is owner of the ship or not. The act of the agent or consignee of the cargo is conclusive upon the owner of the cargo. And if the case be such as to require farther proof, it is to be granted or denied under the Spanish treaty, precisely in the same circumstances in which it would be granted or denied by the pre-existing law of nations. But by the general law, this is a case in a The Fortuna, 3 Wheat. Rep. 245. b The Hunter, 1 Dodson's Rep. 4. c The Rising Sun, 2 Rob. 108. 150. The Vrow Judith, 1 Rob. The Adonis, 5 Rob. 256. The Imina, 3 Rob. 167. The Mars, 6 Rob. 79. 2 Valin Comm. 253. 449. 1 Emerigon des Assur. d The Rosalie & Betty, 2 Rob. 343. The Alexander, 4 Rob. 93. The Elsebe, 5 Rob. 173. e The Franklin, 2 Acton, 106. f The St. Nicholas, 1 Wheat. Rep. 417. 1 Rob. 150. The Baltic, 1 Acton, 14. East's Rep. 78. g The Pizarro, 2 Wheat. Rep. 242. The Vrow Judith, 2 Binney, 308. 15 1821. The Amiable which it would be refused, and therefore it is an exception to the immunity secured by the treaty. 7. Finally. Even if farther proof were admissible, the farther proof produced does not establish the proprietary interest in a satisfactory manner. It is not incumbent on the captors to show to whom the property really belongs. It is sufficient that it does not belong as claimed." The Attorney-General, on the same side, insisted that the case was not within the protection of the treaty, because the vessel was not documented according to its provisions, and the only paper which could possibly answer to the description of the sealetter or passport, required by the 17th article, was concealed, and not shown by the master to the captors, as provided by the 18th; so that they had a right to detain and send in the vessel for adjudication. Being thus subjected to the ordinary jurisdiction of the Prize Court, she is to be tried by the ordinary rules of the prize law, independent of the treaty. This Court has already determined in another case, that the equivalent testimony, required by the 17th article, is to be such as the Prize Court would require, independent of the stipulations of the treaty. No other testimony could give the " legal satisfaction" which the treaty demands. In a case requiring farther proof, the equivalent testimony is that farther proof: and the grant or denial of this a The Odin, 1 Rob. 227. The Neptunus, 4 Rob. 68, must rest upon the ordinary rules of the Court." But here the claimant has forfeited his right to farther proof, by his own aggravated misconduct in concealing the destination, and spoliating and suppressing the ship's papers, which it was his duty, both by the treaty and the general law of nations, to exhibit to the captors voluntarily and fairly. But supposing the passport to have been delivered to the captors at the time of the seizure, as it ought to have been, and suppose the usage of Spain to supply the omission of the form being annexed to the treaty, still the document produced is not such a passport as that usage requires. This is shown by the very terms of the document produced, which state it to have been issued "for want of royal passports." It is said that this is justified by the local usages of the colony; but we are not bound to know those usages, or to admit that this Governor had the authority to substitute his passport for one signed by the King. The document required by the treaty, then, not being found on board, the parties are to give "legal satisfaction of their property by testimony entirely equivalent." This testimony is to be, according to the course of the Prize Court, the papers found on board, and the examinations in preparatorio. But these papers and depositions, so far from satisfying the conscience of the Court, increase the suspicions excited by the want of the documents required by the treaty; documents so easily procured where the property is really Spanish, and the vessel a The Pizarro, 2 Wheat. Rep. 242. 1821. The Amiable 1821. The Amiable fairly entitled to the privileges of a Spanish ship, that it is incredible any such vessel should want them. The onus probandi is on the claimant in such a case under the treaty, precisely as it would be by the general law of nations, independent of the special provisions of the treaty; and the question of proprietary interest is to be determined just as that question would be in any other case of prize. The investigation in the Prize Court is substituted in lieu of the investigation by the captors at sea, which last was to be entirely concluded by the treaty documents, if the ship was furnished with them; if not, she was liable to be brought in to ascertain the character of the ship, which, if adjudged to be Spanish, the same consequence of protection to the cargo will follow, as if the ship had been regularly documented according to the treaty. It is not the possession of papers equivalent, in formal effect, to those required by the treaty which will protect her from farther inquiry, but she must have papers which will produce the effect of giving satisfactory evidence of the proprietary interest according to the ordinary rules of the Prize Court. If the substituted documents were fraudulently obtained and used, would that be satisfactory evidence? The spirit and intention of a treaty is always to be regarded in its interpretation. Every object of such a treaty would be entirely defeated by permitting an enemy to avail himself of provisions contained in it, and intended for the exclusive benefit of a friend; and even if a a Vattel. Droit des Gens, l. 2. c. 17. s. 268–270. 274–282. |