Ship not adjudged altho' there were fictitious documents, the proof appearing favourable.
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Captain Middleton having seized upon a Hamburgh ship called the Liveday, the Admiral did liberate the ship, but confiscated the loading, on this ground, that there were double and false documents aboard as to the loading, viz. a cocquet or bill of loading bearing the goods to belong to two merchants in Hamburgh, and yet by other documents produced, they were claimed as being shipped by Englishmen residenters in Hamburgh, to be consigned to two English merchants in Hull, so that there were both double documents and forged documents made use of; for by a certificate of Sir William Swan's, resident for the King in Hamburgh, it is declared, that the Hamburghers' names were made use of without their knowledge, which behoved to be by forging their names: And by frequent decisions, conform to the King's instructions, the making use of double or false documents, or having no documents, is ground of confiscation. It was answered, That now, in the time of war, his Majesty's subjects cannot carry on trade without making use of simulate and colourable documents; so that, albeit the want of documents, or double or false documents, be a sufficient presumptive probation that the ship and goods do not belong to neuters or allies, who need not have any colour, being free to pass by either party in the war, and so it is presumed to belong to enemies, yet the presumption is not so strong, but that it admits of a contrary probation in favour of the King's subjects, who can trade no other way, though no other can plead the benefit; or otherwise the privateers may watch his Majesty's ports, and seize all his subjects' ships that come in, which never want such colourable documents but when they have conveys, which is very seldom. And to clear the property of this loading, there is produced a certificate from Sir William Swan, bearing him to have examined upon oath the English merchants at Hamburgh, that the goods were shipped for the proper use of the merchants in Hull, and if need be, the same was offered further to be positively proved.
The Lords found the allegeance relevant for liberating the loading, that it did belong to his Majesty's subjects, residenters in his Kingdom, and that the same was sufficient to exclude the making use of colourable documents, but did not rest upon the resident's certificate, but granted commission to the Magistrates of Hamburgh and Hull, that by them the testimonies might be taken in presence of the other party or their procurators.
