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The Amiable Isabella. 6 W.

mit her merchants to use a neutral bottom. Nations are generally jealous of permitting foreigners to hold domestic tonnage, or use domestic names. There are, commonly, privileges of trade attached to the ship's character, and severe laws enacted against a practice which is always viewed as a fraud upon the government whose flag is thus acquired. Witness the severity of our own laws in such cases.

If there is any nation in the world more interested than all others in the liberal support of the doctrine contended for by this claimant, it is the United States. Our chances of enjoying peace are much

greater than any other; and if there be a tendency to war, [* 92 ] *it is with a nation which will not be driven to the necessity of making use of neutral bottoms. I cannot, therefore, really see why our administration should have been so seriously alarmed at the prospect of our deciding in favor of this Spaniard, as has been urged upon this court.

But, considerations of policy, or the views of the administration, are wholly out of the question in this court. What is the just construction of the treaty, is the only question here. And whether it chime in with the views of the government or not, this individual is entitled to the benefit of that construction.

The more I have examined this subject, the more thoroughly I have been convinced that my view of the construction of the treaty is the correct one, namely, that national protection was to depend upon authentic documents, and not proprietary interest; or, more correctly, that each nation should be restricted from looking beyond those documents. There is one provision contained in all these treaties, which sets this point, in my opinion, beyond all doubt; which is, that in the case of convoy, the word of the commander of the convoying ship is to be taken conclusively for the neutral character of every vessel in the fleet. This is the substitute in the case of a fleet for the passport of a single vessel. I speak of authentic documents; for the absurdity never was imagined, that a passport stolen or seized by violence was to have the force of one regularly issued.

But it is contended, that it is due to Spain to pursue these inquiries into proprietary interest, and due to the peace of both [93] nations that such questions *should be examined in courts of justice, rather than leave them to be the subjects of diplomatic remonstrance. This is a specious, but very unsound argument. Have not the vexations of courts of vice-admiralty, and the violence of armed cruisers, been the pregnant sources of half the commercial altercations of the last century? This was the evil intended to be remedied; and whatever impositions might flow from the remedy, it was well understood, that the benefits of a commerce uninterrupted

The Amiable Isabella. 6 W.

by the cupidity of cruising vessels, would more than compensate. There is one consideration, which, on this subject, is conclusive. No sovereign can appear in courts of justice to defend his subjects, and it was therefore that a method was devised for taking such questions from courts of justice, if possible, and referring them to another tribunal. Every stipulation in the treaties of that day, teems with the project of ridding commerce of vexatious capture, and more vexatious litigation. A better practical illustration of the wisdom of such a measure cannot be imagined than that which the present case presents.

But it has been earnestly and successfully contended that, if such was the intention of the treaty, it must fail altogether for want of the form of a passport contemplated in the 17th article.

Yet if there is any one question more clear of doubt than all others, I think it is this; for the fallacy of the proposition admits almost of mathematical demonstration. This omission must have been the result of either accident or design. It may have *proceeded from accident between the negotiators in Eu- [94] rope; but after the receipt of the treaty, and its submission to the cabinet and the senate here, the omission could not have been the result of accident when it received the sanction of our government. It must then have been designedly omitted by our constituted authorities. And for what purpose? Will any one presume to suggest that it was a deliberate fraud upon the other government? calculated to leave our courts at liberty, on some subsequent day, to declare the 17th and 18th articles in effect void? Did we hold out to them the idea of having adopted the provisions of those articles into our national code, when we were conscious that they contained an innate vice, calculated to defeat every beneficial effect? If the argument on this point could meet the sanction of our government, I would blush for it. From the advocate of a captor it might have been expected, but cannot lay claim to the sanction or countenance of the American government. I am sensible that the cabinet would disavow such a doctrine.

But it is urged with much emphasis that we have no right to annex a form or to add a clause to the treaty. It is not contended that we have. No member of this bench entertains such a thought. But why may not the contracting parties supply one? All the requisites being prescribed in language, the form and the substance are the same thing. If the contract is complied with, what matters form? Whether it is substantially complied with or not, must be a question for the courts of the contracting parties. But how ridiculous would it be to be trying form, and shape, and size, like the [95] ignorant Arab, where the treaty is substantially complied

The Amiable Isabella. 6 W.

with. Had it merely stipulated that a passport, in a form prescribed, should be given mutually, there would have been something in the argument; but in expressing with precision the substance of the instrument to be given, it renders the devising of a form a mere work of supererogation. If no other conclusion is to be drawn from its omission, certainly this may, that it was too trivial to be remembered.

In order to support the argument, that the absence of the form nullifies the 17th and 18th articles of this treaty, the attention of this court has been drawn to the provisions of the 14th article of the treaty with Prussia. And it has been contended that, until a form of a passport be adjusted between the two nations, that article is also a dead letter. The construction is one which could not be supported even on a common-law instrument. The words are, "which passports shall be made out in good and due forms, (to be settled by conventions between the parties whenever occasion shall require.") If the Spanish treaty is to be construed by analogy to this, the argument is directly on the other side. For these words obviously leave "the good and due forms" of these instruments to be devised by the parties severally, and only stipulate for settling a form by convention, "whenever occasion shall require;" that is, whenever either shall be dissatisfied with the form used by the other. The nations which, in the very same article,

could repose such implicit faith in each other's candor, as [* 96] to leave the neutrality of * whole fleets to be determined on

the word of the convoying officer, merit more the confidence of each other, than to have imputed to them an evasion so obvious.

As it became indispensable to assign some reason for retaining these two articles in the treaty, if they were to be held a dead letter for want of the form, it has been suggested that the only operation intended by them was to prescribe a law to the caprice or violence of cruisers, and subject them to more exemplary punishment than in ordinary cases.

No one who reads and compares these four articles, the 15th, 16th, 17th, and 18th, and considers the historical events in which they originated, can for a moment suppose that this was the object which led to the insertion of the two latter of those articles. The intention was to ingraft into the law of nations a great and a new principle. And although power and cupidity may affect to sneer at it, and melancholy experience cannot dismiss the apprehension that it is too ethereal to subsist in this nether atmosphere, yet it is one which philanthropy will ever cling to, and justice cherish. To ingraft

1 8 Stats. at Large, 90.

The Amiable Isabella. 6 W.

into this treaty the principles of the armed neutrality was the object, and for this purpose the 15th article declares those principles in detail. The 16th furnishes the exceptions to them; the 17th prescribes the evidence on which those privileges shall be conceded; and the 18th, after regulating the conduct of cruisers towards vessels so protected, proceeds to declare, that "the ship, when she shall have showed such passport, shall be free, and at *lib- [*97 ] erty to pursue her voyage, so as it shall not be lawful to molest or give her chase in any manner, or force her to quit her intended course." It is impossible for language to be stronger. That the violation of these stipulated privileges, would aggravate the punishment to be inflicted on cruisers, is a consequence of the thing provided for, not the thing itself. Upon the whole, I am decidedly of opinion that the claimant is entitled to restitution. Nor should I find much difficulty in supporting his right on the ground of proprietary interest. But entertaining the opinion that I do on this preliminary point, there is no necessity to examine into this part of Sentence affirmed.

the case.

Harper, for the claimant and appellant, moved to vacate the decree of condemnation entered in this cause, and that it should be again continued to the next term in order to enable the claimant to procure further proof as to the annexation of forms of passports to the original Spanish treaty, and read an affidavit annexed to a printed copy of the treaty, published at the royal printing-office in Madrid, which contained two forms of passport.

The motion was opposed by the Attorney-General and [98] Wheaton, for the captors and respondents.

STORY, J. Without giving any opinion upon the suffi- [* 99 ] ciency of the evidence to establish the probability that the [*100 ] forms of passport, now offered to the inspection of the court, were ever authoritatively annexed to the original treaty, in [* 101 ] the possession of the Spanish government, the court is of opinion that the motion for a continuance must be denied. The passport found on board The Isabella is materially variant, both in form and substance, from the forms of passport now produced; and to the form of the passport actually annexed to the treaty, and to no other, was the effect intended by the treaty, whatever that effect may be, meant to be attributed. The possession of that form, and not of any other passport which might be substituted for it, was of the very essence of the treaty. It is clear, therefore, that even if the

Bussard v. Levering. 6 W.

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case were as the claimant's counsel supposes, he could derive no benefit whatever from it, because the treaty passport was not on board; and the case must, therefore, in this respect, be judged by the rules of the prize court, independent of the conventional law. Motion denied.

15 P. 518.

BUSSARD V. Levering.

6 W. 102.

Where the second day of grace falls on Saturday, it is the last day of grace; and notice of non-payment given to the drawer of a bill on that day, after a demand upon the acceptor on the same day, after business hours, is sufficient to charge the drawer.

Notice to the drawer, by putting the same into the post-office, where the persons live in different places, is good.

ERROR to the circuit court for the District of Columbia.

Assumpsit against the defendant below, (Bussard,) as drawer of an inland bill of exchange drawn at Baltimore on the 3d of October, 1816, upon one Martin Gillet, for $1,244.79, payable six months after date, and accepted by Gillet. Plea, non assumpsit. On the trial of the cause, it appeared that, after bank hours, on Saturday, the 5th of April, 1817, being the second day of grace after the said bill became due, the same was presented by a notary to the acceptor for payment, and not being paid was duly protested. And on the same day written notice was put into the post-office for the defend

ant, residing at Georgetown, D. C., notifying him of the [103] non-payment and protest of the bill. And no other evidence of demand or notice was offered. Whereupon the counsel for the defendant prayed the opinion and instruction of the court to the jury, that the defendant, under the circumstances so given in evidence, was not liable in this action, the drawer of the said bill not having received due notice of the dishonor of the same; but that the notice given upon the same day that the payment of the draft was demanded, to wit, on Saturday, the 5th of April, 1817, was not regular and sufficient to charge the defendant in this action. Which instruction the court refused, and the defendant's counsel excepted. A verdict and judgment thereon was rendered for the plaintiff, and the cause was brought, by writ of error, to this court.

This cause was argued by Jones, for the plaintiff in error, and by Key, for the defendant.

This COURT were unanimously of opinion that, by the general law merchant, notice of non-payment given to the drawer on the

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