transaction. The concealed papers were innocent; and were even essential to show the Spanish interest in the cargo; and as to the mutilation, if practiced at all, it must have been by the captors themselves, as they alone had an interest in defacing papers which were material to the claimant's proofs of property. The fact as to the papers thrown overboard was frankly and freely disclosed by the parties who alone had any knowledge of it, and a satisfactory reason for their conduct assigned by them on their first examination. Even supposing, however, that the fact of the spoliation and suppression of papers would, under other circumstances, exclude the claimant from the benefit of further proof, it is now too late for the cap Such explanation could only proceed upon the ground of the papers being innocent in themselves, and that they were destroyed from a necessity unconnected with an attempt to evade the right of search. But as to the papers thrown overboard, all that we know of their character is, that they came from the compting house of the claimant, who ordered them to be thrown overboard, in case of capture; and as to the supposed necessity of destroying them, the only reason alleged is the fear of South American cruisers. This could not be the true reason, since the papers retained on board would equally show the Spanish ownership of the ship and cargo, which it is now insisted they are sufficient to establish. And as to the papers mutilated and concealed, a care-tors to object, an order for further proof having ful inspection of them will satisfy the court been granted in the court below, without any that they point to the English origin of the ad- objection on their part. venture, and to English interests in its results. The learned counsel concluded by a very minute and able analysis of the proofs of proprietary interest. 4. The passport in this case is sufficient to establish the national character of the ship, so as to protect both her and the cargo under the treaty with *Spain. It is one of a series [*44 Mr. Harper, for the claimant and appellant, of passports issued by the Governor of the Island in reply, (1) insisted that the destination of of Cuba; is numbered 94, showing that many the vessel, in this case, was not a false desti- more of the same kind had been issued; and nation; and that even a false destination is not the words "for want of royal passports" are 42*] a substantive cause of condemnation. A printed, which circumstance shows that it was false destination, is an unlawful destination an established formula. The circumstances of concealed; but here the alternative destination the Spanish nation at that period, when Ferdidid, in fact, appear on the face of the papers, nand had been just restored to the throne, sufand both London and Hamburg were equally ficiently explain the cause of the defect of passlawful ports for Spanish vessels to trade with. ports, with the king's sign-manual. The very In the cases of The Juffrow Anna and The act of exercising such an authority on the part Welraart, the false destination was combined of the colonial governor, is strong prima facie with other circumstances of illegal conduct or evidence of his possessing the power; and until suspicion, and the condemnation did not pro- rebutted by some contrary proof, must be conceed upon that ground alone. In the case of sidered as conclusive that such is the usage of The Nancy, it was also connected with the of Spain. There is no substantial difference befense of carrying contraband goods on the out- tween such a document and royal passports; ward voyage. So the case of The Mars, was since the latter must be issued in blank, and that of engaging in the colonial trade of the sent to the different ports throughout the exenemy, attempted to be concealed by a false tent of the Spanish dominions, and the distridestination; and further proof being necessary, bution of them entrusted to subordinate officers, it was refused on account of those circumstan- so that the same frauds may be perpetrated, as ces of fraud and illegality. are imagined in the present instance. What better security have we that the royal passport itself will not be employed to protect the trade of our enemy? It may be safely admitted, that you may inquire so far as to ascertain that the passport is not forged, or obtained by criminal means, or fraudulently applied to a vessel, for which it was not issued. But if none of these circumstances occur, and the passport regularly issues, from an authority which is competent to grant it according to the local usages of the neutral country, the treaty makes it conclusive, on the question of *property. In [*45 this case, the passport was granted, under a judicial decree of the Consulado, at the Havana, proceeding according to the course of the Court of Admiralty, to inforce a bottomry bond, 2. Nor ought the present case to be affected by the fact of the vessel having set sail from the Havanna under convoy of a British frigate. This protection was necessary against South American cruisers, to whom Spanish property would have been good prize. But the Isabella intended to leave her convoy off the coast of Florida, and such an intention admits of a locus penitentie which was availed of; for she had in fact left the fleet, before the capture. The case of the Hanse vessels taken under Swedish con voy was very different from this. The Swedish 43* *armed vessels prepared to resist, and only yielded to the terror of a superior force; and the Hanse vessels were affected by what was considered as an actual resistance of the convoy, having associated themselves under its protec-given for repairs to the ship. The sentences of tion. 3. As to the spoliation and concealment of papers, the facts do not warrant the inference of its having been done for unlawful purposes. There is no evidence whatever that the papers thrown overboard were connected with this 1.-1 Rob. 125. 2.-1 Rob. 122. 3.-3 Rob. 125. foreign tribunals, having jurisdiction of the subject matter, and proceeding in rem, are considered as conclusive, by the law of this, and every other country, wherever the title to the thing comes incidentally, or directly, in controversy. Here it is the very question in issue 4.-6 Rob. 79. 5.-The Elsebe, 5 Rob. 173. 6.—The Pizarro, 2 Wheat. Rep. 227, 240. before the court; and the decision of the Span- | respondents, insisted, that the form of passport ish tribunal not only warranted the Governor to which an effect so important was attributed, of Cuba in granting the passport, but even if he not having been annexed to the original treaty had not issued it, would bind this court to by the contracting parties, could not now be consider the property as Spanish. Therefore, supplied by the judicial tribunals of either. admitting that the captors had a right to bring Such an attempt would be an encroachment on in this vessel for adjudication, because she had the treaty-making power, which, in our govnot the passport required by the treaty, or be- ernment, is exclusively confided to the Presi cause it was not exhibited to them at the time dent and senate. The office of this court is to of the capture, still the equivalent proof is more construe, not to make or amend treaties. The than sufficient to supply the want of a passport treaty (art. 17) provides, that "the ships and in any form that can be conceived; because, it vessels belonging to the subjects or people of shows that the ship was entitled to every docu- the other party must be furnished with sea-letment which could prove her to be a Spanish ters or passports, expressing the name, propship, the tribunal of the Consulado having ad- erty, and bulk of the ship, as also the name and judged her to be Spanish property. The cap- place of habitation of the master of the said tors may possibly be exempt from costs and ship, that it may appear thereby that the ship damages; but it does not, therefore, follow, really and truly belongs to the subjects of one that the case is taken entirely out of the special of the parties, which passport shall be made provisions of the treaty, and left at large to be out and granted according to the form annexed determined under the law of nations. The ob- to this treaty." These particulars were required ject of the treaty was to provide, that neutral to be inserted for the purpose of identi- [*48 vessels should protect goods to whomsoever be- fying the vessel to which the passport was inlonging, with the exception of contraband only. tended to apply, and to satisfy the other con46*] The *passport was to be conclusive of the tracting party that she is really entitled to the neutrality of the ship, and the certificate was to immunities stipulated in the treaty. The passshow, that the cargo was not contraband. If port in the present case was either intended to these documents are wanting, then the property certify that the ship was Captain Cacho's, of the ship is to be established by equivale.t or not. The words are, "Captain Cacho, testimony; and that being shown to be neutral, with his Spanish ship called," &c. If Cacho will protect the cargo, even if enemy's property, was meant to be certified to be the owner, the unless, indeed, it consist of contraband articles. claim does not conform to it. He expressly The equivalent testimony" required, must swears that it is not his, but that it belongs exmean, that other documents shall be produced clusively to Munos, who claims. Nobody else which will prove precisely the same facts that can have restitution but the actual claimant, were intended to be proved by the passport and and he is not certified in the passport to be the certificate; and not that sort of evidence which owner. But the term, "his Spanish ship," is the technical rules of the prize court demand evidently a mere figurative expression, and in a case requiring further proof. Doubtless means nothing more than the ship of which he the intention of the contracting parties is to be is master. What, then, is the import of the term regarded in construing treaties, as it is in the 'Spanish ship?" A certificate that a ship of a interpretation of all other instruments; but that certain name, and bulk, and master, is a Spanintention is to be gathered from the words they ish ship, is not a certificate that it is Spanish use. Although there are many treaties conse- property, or in other words, the property of crating the maxim, that free ships shall make Spanish subjects, which is alone intended to be free goods, there is no other example of a treaty protected by the express terms of the article. stipulating what should be conclusive evidence A vessel may be a Spanish ship by adoption, of the freedom of the ship. The parties to this by having a license to trade with the Indies, treaty intended to exclude the jurisdiction of without ceasing to be the property of foreignthe prize courts of the belligerent as far as pos-ers, or becoming the property of Spanish subsible, by forbidding the detention of vessels having the required documents, and where they were carried in for adjudication for want of these documents, limiting the inquiry of the prize courts to such testimony as should be equivalent. All the cases cited on the other side, of the supposed exception to the general immunity, are cases arising under treaties or ordinances, merely recognizing the principle, 47*] that free ships should make free goods, without providing any rule of evidence to establish the national character of the ship, and leaving that question to be determined by the general law of nations. But here the conventional law adopts a new rule of evidence, from which the court is not at liberty to depart. The learned counsel also argued the question of proprietary interest with great minuteness and ability. The court directed the cause to be re-argued upon the point as to the form and effect of the passport. The Attorney-General, for the captors and jects. It is not sufficient to certify the national shows what the form of the oath would probably be: "C. D., of —, personally appeared before us, and declared by solemn oath that the ship or vessel called, &c., does rightfully and properly belong to him or them only," &c. The terms of these treaties are the same with the Spanish treaty, and require "the name, the property, and the burthen of the vessel," to be expressed. It is not property in the abstract, the national character merely, acquired by a fictitious adoption into the navigation of Spain, but the individual proprietary interest of some Spanish domiciled subject that is to be protected. Mr. Harper, contra, contended, that the treaty merely required the national character of the property, and not its individual owner ship, to be expressed in the passport. There can 50*] be no doubt that this passport *must be according to the regular Spanish form, because both this and the royal passport for the Clara, which was also found on board, have the same expression, viz., "his Spanish ship." This is precisely equivalent to a certificate that the ship belongs to Spanish subjects. A warranty in a policy of insurance that a ship is an American ship, is a warranty that she is the property of citizens of the United States. The form of passport which was intended to have been annexed having been omitted, good faith requires that it should be supplied by construction, since it must be concluded that the parties in tended to waive it. A construction has been given to the stipulation by the usage of the two countries, which is sufficient for all practical purposes. What good purpose would be answered by inserting the name of the owner? The court could not inquire even whether such a person existed, much less as to his national character or domicile. The conclusive effect attributed to the passport would prevent any such extrinsic investigation, and therefore a fictitious name might be inserted which would satisfy all the requisites of the treaty. So that a general certificate of the national character of the property is as efficacious as would be a certificate that it was the property of some particular person. The cause was again argued, upon the application of the executive government to the court, on the question of the construction of the Spanish treaty, and the form and effect of the passports. 51*] *Mr. Pinkney, for the captors and respondents, stated four points for the consideration of the court: 1st. That the passport produced in this case, was not within the terms of the treaty, because it was obtained by fraud. 2d. That it was not within the treaty, because not issued by the Spanish sovereign, or his known authorized substitute. 3d. That it was not within the same, because the only article which professes to provide for it is incomplete and inofficious, the form never having been annexed, according to the terms of the article. 4th. Because the passport issued for this ship is not conformable either with the terms or the substance of the article; since it does not state that the ship is the property of a Spanish subject, nor name any Spanish subject as the owner. This treaty is, unquestionably, to be interpreted by a just regard to the public faith, but only so far as the public faith is actually pledged by it. The spirit which animated the parties to the armed neutrality is to be regarded; but it must be remembered that the celebrated confederacy which has received that name was intended to introduce new rules, to the disparagement and repeal of those which then existed, and in derogation of the ancient law of nations. The intention of the parties to the Spanish treaty is also to be taken into view. But this intention is to be collected from the language they have used; if that be clear and plain, there is no room for interpretation; but, if ambiguous in itself, then the intention may be fairly collected from the object and [*52 circumstances of the stipulation in question. In a word, the treaty is to be executed as it is, and no new treaty to be made by the labor of exposition. 1. The object of the stipulation is expressed in the article to be "the ships and vessels belonging to the subjects or people of the other party," &c. This necessarily excludes all other ships or vessels. Consequently, it cannot be applied to vessels which are not really those of Spanish subjects, but only fraudulently represented to be such. It is a principle, not only of the common law, but of universal jurispru dence, that fraud vitiates every act, whether public or private; contracts, deeds, and judgments, are all affected by it, even as to bona fide purchasers. No record, however solemn, estops an allegation of fraud. Judgments of courts of competent jurisdiction import absolute verity, wherever they are brought in question; but if obtained by fraud, they are set aside, either in the same or any other tribunal; and a person affected by the fraud may show it and avoid the judgment, though not a party to the suit. Thus a stranger may avoid a recovery in a real action, if covenous or fraudulent, and he is prejudiced by it. These analogies of the municipal law are applicable to similar cases arising under the law of nations. The comity which is due to foreign states, does not require us to respect the acts of their administrative or judicial officers when they are contaminated with fraud, and still less where this fraud has deceived those very officers, and induced them to issue Spanish papers to a British *ship. [*53 In such a case, even if a royal passport had been issued, we should have a right to say, in the language of the common law, "the king has been deceived in his grant.' A repetition of such transactions as the present case discloses, would bring the entire treaty into jeopardy. The honor and interest of both nations equally require that they should be repressed. The only mode of preserving the amicable relations between the two powers, is by judicial interposition, preventing the effect of such violations of the spirit of the treaty before they grow too mighty to be controlled by diplomatic remonstrance. Make these frauds successful, and encourage them by your decisions, and such violations will be frequent. On the other hand, by arresting them in limine, the presumed and declared purposes of the contracting parties will be fulfilled, and dissentions and hostilities prevented. That there must be some implied exceptions to the conclusive effect attributed to or perhaps themselves corrupt, should grant such an omnipotent document, sacred, infallible, and conclusive even against the manifest fact and truth. Where is the authority of this court to countenance the issuing of such a document, by an authority less than the highest? The treaty is here silent. If the form had been annexed, it would probably have provision on this subject also. If this omission is to be sup the passport by the letter of the treaty, is mani- still it must prevail; and while our enemy is fest. Such would be the case of a royal pass-warring upon us in all directions, and by every port, signed in blank, obtained by corruption means, we must suffer his trade to pass unmoof the officer in whose custody it was, and filled lested in his own ships, wearing a Spanish veil up fraudulently, and applied to a vessel not en- which disguises nothing, and only compels us titled to the privilege. Here is a passport de to affect blindness. On the other side, the facto, with all the solemities upon its face, yet evils flowing from the interpretation we insist certainly examinable in this particular; and if upon amount to nothing. The passport is still shown by extrinsic evidence to be thus fraudu- protecting evidence to all reasonable and honest lently obtained and used, not only would the purposes. The captor who disregards it, does captors be excused from costs and damages for so at the peril of exemplary costs and [*56 detaining the vessel, but she must be condemn- damages, to be inflicted in the discretion of the ed under the ordinary rules of prize law. So court, according to the peculiar circumstances that all the mischiefs of stopping vessels at sea of every case. There is, then, the moral re54*] may arise *notwithstanding this stipula straint of a great responsibility. It is sufficient tion; and, indeed, all such attempts to limit the to give protection where it is due, and was inrange of maritime warfare will be found in tended to be given. It provides for the consepractice to be quite illusory, unless, indeed, the quences of slavish submission to the letter of capture of private property be entirely prohib- the instrument on the one hand, and guards ited; and even then contraband and breach of against vexatious interruptions of neutral comblockade must be excepted. A passport, as in merce on the other. the present case, actually filled up by the prop- 2. But, if the document can be issued by any er authority, and intended for the ship for inferior functionary, the argument on the first which it is actually used, if issued upon false point is entitled to still more weight. It is imsuggestions, is no more a legal passport than the possible to conceive that any nation would be one just supposed. The will of the grantor so unwise as to consent that subordinate offidoes not concur. The fraud makes it no pass-cers, at a distance from the sovereign authority, port. But it is objected, that by the 18th ar- of great facility, surrounded by corrupt agents, ticle, the passport, if in due form, is to be conclusive when shown at sea, and the belligerent cannot detain the vessel after this document is exhibited. If the precise letter of the treaty be adhered to, this objection will be found to be groundless. If the ships of the said subjects, &c., shall be met with," &c., "the master or commander of such ship shall exhibit his passports concerning the property of the ship, made out according to the form inserted in this pres-plied by construction, the court will remember ent treaty."&c. Suppose a ship exhibiting such a passport, should be proved by other evidence found on board, not to be a ship of the said subjects;" then the letter of the treaty does not apply to her. If not a "ship of the said subjects," her passport is no absolute and conclusive protection. On the other hand, if the spirit of the treaty be regarded, the result is precisely the same. The intention of the contracting parties was to protect Spanish ships, and not enemy ships; to give effect to the 55*] *maxim of free ships, free goods; not to make enemy ships protect enemy goods. Even admitting, that the contracting parties meant to confide in the good faith of each other, that they would grant their respective passports only to their own vessels; still it is not to be supposed, that they meant to confide in the good faith of their enemies, that these last would not attempt to deceive their officers. It would, indeed, be an imputation on their good faith, to suppose that they wished such frauds to be suc-annexed to this treaty." The ships of the two cessful. Every such national stipulation must receive a fair and reasonable construction. One which subverts its object, which encourages fraud and perjury, and makes the stipulation destructive to the rights of both parties, and benefits their enemies only, cannot be just. So pernicious a construction destroys all the advantages of the treaty. Look at its consequences to our belligerent rights. The passport, however obtained, and attended with whatever concomitant proof of fraud and falsehood, is supposed to be incontrovertible. However clumsy and barefaced the imposition may be, the high dignity and vast power of the document, and will not too easily confide in the responsibility of subordinate agents, remote from the control of their sovereign. The passport now in question, professes to be issued "for want of royal passports." But why want them? Their absence proves a want of confidence in the officer who has here assumed the [*57 authority to substitute his own, for the passport of his prince. In the absence of any evidence of a right to exercise an authority so high, or of the fact that any royal passports had ever been entrusted to his distribution, the court cannot recognize the validity of a document thus issued. 3. The 17th and 18th articles of the treaty, so far as they provide for the form and effect of passports, are inofficious and incomplete, for want of the annexation of the form intended. The 17th provides, that the "passport shall be made out, and granted according to the form nations are to be “provided with passports as above mentioned," &c., 'without which requisites they may be sent to one of the ports," &c. The 18th, stipulates that the master "shall exhibit his passports, concerning the property of the ship, made out according to the form inserted in this present treaty, and the ship, when she shall have showed such passport, shall be free, and at liberty to pursue her voyage," &c. So that there is nothing in these articles which gives a conclusive effect to any other passport than one, which it is impossible to have under the treaty, as the parties have left it. The first part of the 17th article does indeed give some convention settling the form, or of the annexaof the qualities of the passport; but it must tion of the form, equally fail to complete the have others, and they are unattainable by rea- stipulation. If one can be judicially supplied, son of the omission of the form. The court why cannot the other? It is a gratuitous asthen must either strike out the reference to a sumption to say, that by the non-annexation, form, or imagine a form, and annex it. To do the parties intended to refer the form to [*60 either, would be a high act of legislation, to each other's good faith and discretion. If they 58*] which the court is *incompetent. But had changed their minds in this respect, when let us try to discover the form; and taking the they executed the treaty, a supplemental article 17th article for a guide, it must express the would have been added: and the only fair inname, property, and bulk of the ship, and the ference from their silence is, that they meant to name and habitation of the master. Still there leave the stipulation of free ships, free goods, to are several things more to be ascertained. Who support itself by the ordinary rules of evidence is authorized to grant the passport? This is an as to the property of the ship. The court canessential circumstance; is ascertained by the not alter the treaty by mere implication, and forms of passport annexed to several treaties; that, too, not a necessary implication, for the and would probably have been expressed in this non-annexation might have been the result of form had it been annexed. How is the propri- inadvertence. It might also have been the reetary interest to be stated: as the general prop-sult of an intention to abandon the scheme of erty of the subjects of the state, or as the spe- conclusive passports, or of passports more than cial property of some individual named? Is usually efficacious, by omitting to perfect the the national character of the ship, as a part of treaty in that respect. If the defect proceeded the navigation of the country under whose flag from accident, the parties might have supplied she sails, sufficient; or must it appear to be the it by a subsequent convention: and if they have property of subjects in general, or of some in- not thought fit to do it, the proper inference is, dividual owner? Under what sanctions and that they did not wish to do it; and if wishing solemnities, and accompanied by what proofs, it, they have neglected it, they have no reason is the document to issue? These, too, are reg- to complain that the court acts upon the treaty ulated by the forins annexed to several treaties, as it finds it. The inadvertence, therefore, was which were brought to the notice of the court, remediable in a regular manner, by the treatyat the former argument. The court may supply making power on both sides; and the court has these requisites, conjecturally, but it can have no right to say that it was not an inadvertence; no assurance that it will not err, and defeat, or if by design, that it was not intended to leave instead of promoting the intention of the par- the stipulation abortive as to the effect of passties. The stipulations of the treaty are nothing, ports. And where is the mighty mischief of and profess to be nothing without the form of leaving it unaccomplished? The great object passport. The contracting parties have made of the treaty was the principle of free ships, no effectual contract on this matter, without free goods. Take away the conclusiveness of the form. The court cannot finish, what they the passport, and that principle remains in full have left imperfect, any more than it could force. It stands in many a treaty without it. frame new articles, and insert them in the trea- The passport would still have its proper [*61 ty. The contracting parties give conclusive- effect. It would be entitled to respect as prima 59*] ness to no passport *but one according to facie evidence, but it would not be conclusive a form to be annexed. The court knows not against further examination. No doubt the what that form would have been. It might public faith is to be preserved but the care of have explained, varied, or added to the requi- it is devolved upon this court to a limited exsites of the passport contained in the body of the tent only; the executive government is answertreaty. Can the court give conclusive effect to able for the rest. The jurisdiction of the court any other passport than the one intended to be to carry the treaty into effect, arises out of the provided by the treaty? If it can, the treaty constitution, which declares it to be the suwould, to a certain extent, be made by the preme law of the land, and it is only as a law court. But the judiciary has no portion of the that the court can deal with it. Where a treaty treaty-making power under our constitution; gives a legal rule, the court may enforce it diand cannot exercise it under the pretext of in- rectly in the exercise of its ordinary and reguterpreting treaties made by the President and lar jurisdiction. But where it fails to give such Senate. Here is no room for interpretation. a rule, the court is without power. As a court The language of the treaty is express and intel- of the law of nations, it cannot, by analogy to ligible, as far as it goes. It creates but one its equitable jurisdiction, supply the defective casus fœderis. The court cannot vary it, or execution of a treaty, as chancery supplies the superadd another. The 14th article of the defective execution of a power, or a trust. Α Prussian treaty of 1785, contains a similar stip- court of equity supplies a remedy where there ulation with that of the Spanish treaty. The is a right merely equitable. It has a control passport is to express the name, property, over the parties to compel them to do justice, and burden of the vessel, as also the name and although there be no legal obligation. But this and habitation of the master, which passports court cannot deal with treaties in this manner. shall be made out in good and due forms (to It must execute them as it finds them, since it be settled by conventions between the parties, acts upon them as written laws merely, and has whenever occasion shall require"), &c." Sup- no control over the parties to make them conpose that no such conventions were ever con- form their conventions to their actual intencluded (and in fact they never were), could the tions. Suppose the United States had refused court supply the form, or give effect to the to make a convention providing the form of stipulation in the treaty with Prussia? Yet the passports under the Prussian treaty, could this two cases are the same: for the omission of a court compel the government to do it, or con |