The Amiable Isabella. 6 W.

treaty. The captor contends that the documents found on board were not of the first order, under the treaty, and that, when

let in to the production of substitutes, a plenary inquiry is [ *83 ] opened into proprietary interest.

Before entering upon these more general questions, it is necessary to take notice of a preliminary ground of condemnation, which, if it can be sustained, anticipates every other inquiry. It appears that the vessel left the Havana under convoy of a British frigate, and it is contended that this circumstance is, per se, a ground of condemnation.

This is, at least, a new ground in this court; and it cannot be expected that it will meet with a very favorable admission from a court which has manifested no disposition to multiply causes of condemnation. Without being supposed to express any inclination to adopt the principle, I deem it sufficient to remark that, if it could be admitted, it ought not to be applied to a nation which needed that protection against an existing and enterprising enemy; and which ought, therefore, to be considered as having sought it for that purpose, and not against a neutral, whose principles of conduct it had then no reason to distrust. The gulf of Florida, at that time, swarmed with patriot privateers; and the convoying ship had, moreover, parted from the fleet before this capture was made. The conduct of this vessel was perfectly pacific when overhauled by the American cruiser. The utmost to which the courts of Great Britain have gone, has been to affect the merchant vessel actually taken under convoy, with the resistance or character of the convoying ship; and when such a case shall occur, it will be time enough for this court to determine on the course it * will adopt. At [ 84 ] present, I feel no inclination to go so much beyond those decisions as has been here contended for.

On the principal question, it appears that this vessel was provided, at the time of her sailing, both with a passport and certificate of her cargo. That these papers were on board at the time of the capture, cannot be doubted; they were both delivered by the captain to the Registrar of the district court, the former marked A. No. 7; the latter, B. No. 1. Some doubt arises whether they were both exhibited prior to the capture; but this is wholly immaterial in the question of condemnation.

In behalf of the claimant it is contended, that on the production of the passport and certificate, or bill of lading of the cargo, he is entitled to restitution. To this the captor objects, that the 17th article of the treaty with Spain contemplated a form of passport intended to be attached to that treaty; that as no such form was

The Amiable Isabella. 6 W.

settled by the two nations, the claim must rest altogether upon the provisions of the 15th article, and the proprietary interest is to be inquired into as in ordinary cases. But, if the contracting parties are to be permitted to devise forms of passports for themselves severally, then that this is not a passport in the language of the treaty, but a substitute for one, and is defective in not expressing unequivocally that the ship was Spanish property.

On this part of the case it is proper to remark, that it is not always easy for the criticizing eye of the common law to expand [85] to the enlarged views and * remote perceptions which should govern the mind in the construction of treaties. Yet nothing could be more inconsistent with international law, than to apply to such instruments those scrutinizing principles, which enter into the construction of a special plea or a criminal statute. From history, analogy, and policy, as well as language, are to be gathered the views of the contracting parties; and however either may be pressed by the application of conventional stipulations to particular cases, or under particular circumstances, not less is the obligation to execute them in a spirit, not only of good faith, but of liberality. Where no coercive power exists for compelling the observance of contracts but the force of arms, honor and liberality are the only bonds of union between the contracting parties, and all minor considerations are to be sacrificed to the great interests of mankind.

In the case before us, I see no reason for nullifying the operation of the 17th article, for want of the form which was in contemplation to be drawn up and attached to the treaty. The substance of the passport intended to be prescribed, is so copiously exhibited as to render it a matter of the simplest effort to throw it into form. This, no doubt, was the cause why the contracting parties manifested so much indifference about carrying their intention into effect. I am, therefore, content to give the same effect to any instrument complying substantially with this article, as ought to have been given to a passport in a prescribed form. What is that effect?

[ *86 ]

* This is easily ascertained by comparing the provisions of the 15th, 17th, and 18th articles. By the 15th, the principle is established, that free ships shall make free goods, and that several branches of commerce which the modern law of nations has prohibited to neutrals, shall notwithstanding be freely prosecuted. But, knowing the endless litigation which questions of proprietary interest give rise to, and the sad depravity of morals exhibited by witnesses in prize courts, the enlightened statesmen who formed that treaty, resolved, by the 17th and 18th articles, to make the freedom of the ship to rest upon documentary evidence, in the first

The Amiable Isabella. 6 W.

instance, and evidence of property in those cases only in which the vessel was unprovided with the necessary documents; that each nation should be sovereign to judge for itself in conferring upon its own vessels the immunity secured by the treaty, and that the acknowledged right of adjudication in the courts of the capturing power, should be superseded, when a vessel was found on the ocean provided with the documentary evidence stipulated for by treaty; and only revert when the vessel, being unprovided with such documents, was obliged to resort to evidence of property of a less solemn

nature.

*

It is contended that this is yielding an important national right. What if it is? It is a mutual relinquishment, and one made by the government, not by this court. And although it operate against us now, the time may come when the comity of Spain or her colonies may extend the benefits of it to the commerce of this country. But, be that as it may, *if the relinquishment [ 87 ] has been made, it is incumbent on us to observe it. And although it may not be so sensibly felt at present, the time is scarce gone by when it was thought a highly beneficial stipulation to this country. Spain was, at the date of that treaty, a respectable naval power. Her relations with Europe and the Barbary powers often involved her in wars. America abounded with ships and seamen, and her prospects were favorable for the enjoyment of peace. To carry on the commerce of the West Indies and Mediterranean, as the favorite carriers of belligerent cargoes, was, therefore, to us, a highly flattering object. And though occasional impositions might be practised, it was, comparatively, a trivial consideration, and the chances mutual. When abuses should become flagrant and intolerable, it would have presented a just cause for dissolving the treaty; but it does not rest with courts of justice to dissolve a treaty.

As to considerations drawn from the impolicy of discouraging the spirit of cruising, I attach to them very little importance. The most serious doubts may well be entertained of the policy of giving encouragement to that species of enterprise. Certain it is, that no nation can pursue it long without feeling its demoralizing influence. It draws together a race of men, from every quarter, who want for nothing but a legal pretext for indulging their appetite for blood and violence; and while their habits and examples become popular, the rapid fortunes which are occasionally acquired, render the most valuable classes of a community dissatisfied with seeking competence * by the slow progress of useful labor. It will not, [*88* perhaps, be too much to say, that this country is, at this

time, experiencing something of the baneful effects which flow to the

The Amiable Isabella. 6 W.

world from letting loose the passions of men to gratify themselves with plunder. But, be this as it may, it is the direct object of these articles, of this treaty, to cover commerce from capture; and if a treaty is to be construed with a view to effectuate its intent, that construction which will afford the most ample protection to commerce, will be most consistent with the views which dictated this treaty. Could the language of the treaty leave a doubt on this subject, it is historically known, that the policy of the United States, at the time of its date, was, if possible, to annihilate the right of cruising against commerce. With many ships, and a most flourishing trade, she had not a vessel of war; and while every other nation was likely to be embroiled in wars, her policy was peace, and her prospects favorable to the enjoyment of it. To become the carriers of the world, was the object to which her negotiations were directed; and could she have obtained the same stipulation from all the rest of the European nations, she must have succeeded greatly.

The example of other nations in the construction of treaties is brought to the notice of this court. But, besides that the analogy in the cases referred to is very remote, I cannot admit the force of any example that contravenes general principles. It is a melancholy

truth that nations and their courts are too often inclined to [ * 89 ] restrict or enlarge construction, * under a temporizing policy suggested by the pressure or allurement of present circumstances. I will endeavor to give this treaty the same construction against an American captor, as ought to be given it in the courts of the opposite contracting party. And the day may arrive when American commerce will have no cause to regret that our courts have pursued liberal and enlarged views in adopting this construction.

On the exceptions taken to the form of the passport it is to be observed, that on the face of the instrument it is declared to be issued in default of royal passports. From this circumstance, a doubt arose whether it was an instrument of the highest authority. This led to an inquiry at the highest sources of information relative to the pow ers of the governor of Cuba to issue such passports. From the information thus obtained, I am satisfied that his powers are amply sufficient to support the authority of that document. Some very serious doubts also have been raised relative to the form of the instrument, particularly that passage of it which has relation to the national character of the ship. The treaty requires that it should set forth the name, property, and bulk of the ship; also, the name and habitation of the master, or commander. These requisites are all minutely complied with, unless we except that part which relates to the property of the vessel. The words used with that view are simply fragata

The Amiable Isabella. 6 W.

mercante Espanola; and a doubt has existed whether this be a sufficient affirmance of the property or national character of the vessel. Nor has this doubt * been removed without a care- [*90 ] ful reference to the passports of various nations. The result

is, that in all of them the affirmance is general, without specifying the individual proprietor. It is also in evidence that this is the form known and used in Spain and her colonies, as the passport of regularly documented and acknowledged Spanish vessels; and I feel myself bound to receive and acknowledge it as sufficient in form and substance.

Thus far the opinion was written, and prepared to be delivered, prior to the argument ordered at the instance of the executive. I have seen no reason to change a word of it, from any thing since heard. On the contrary, the last argument has fully confirmed me in its correctness. Thousands of imaginary cases of fraud and collusion, have been suggested to alarm the court; and it may be, that our government, having now a prospect of becoming a respectable naval power, and having experienced the activity and enterprise of our privateers in the late war, may feel less disposed to promote the principles of the armed neutrality, than they did formerly. This conviction of former error has generally grown out of the same change of circumstances in other States. But it is not through the medium of courts of justice that this change of sentiment is to develop itself. If this treaty was ever binding, it is equally binding now; and in adjudicating between individuals, the same rules which would ever have been applicable, ought to be religiously adhered to, under all possible changes of interest or policy.

But the interests and apprehensions so eloquently pressed [* 91 } upon the notice of this court are not real. They are factitious, and may have their effect on a client's cause, but they are not the well understood interest, or the well founded apprehensions of the government. The execution of one treaty in a spirit of liberality and good faith, is a higher interest than all the predatory claims of a fleet of privateers.

What has this country to fear? A practical answer is always most satisfactory on such a question; with similar treaties existing with various other powers, what real injury was sustained in the late ⚫ war? The truth is, and every one conversant in national policy well knows, that there is always less danger of imposition in reality than a limited view of the operation of such a stipulation would suggest. It is not the interest of the belligerent to foster the carrying trade of a commercial rival; hence, Great Britain would rather, in time of war, compel her own vessels to sail under convoy, than per