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The Amiable Isabella. 6 W.

points of great importance and difficulty, the court, ex mero motu, directed one of those points to be reargued; and another, including a final construction of the Spanish treaty in matters of deep and universal interest, was reargued upon the application of the govern. ment itself. The last argument was heard at so late a period of the session that it was found impracticable for all of us to prepare deliberate opinions, and the cause was ordered by the court to be * continued for advisement. The court has now come to [ * 66 ] a result which I am directed to pronounce.

A preliminary question was raised at the original argument that the libel ought to be dismissed, because the capture was made without public authority and by a non-commissioned vessel. Whether this be so or not, we do not think it material now to inquire. It is a question between the government and the captors with which the claimant has nothing to do. If the ship and cargo be enemy's property, it cannot be restored to the claimant. If the captors made the capture without any legal commission, and it is decreed good prize, the condemnation must, under such circumstances, be to the government itself. If with a commission, then it may be to the captors. But in any view, the question is matter of subsequent inquiry after the principal question of prize is disposed of; and the government may, if it chooses, contest the right of the captors by an interlocutory application after a decree of condemnation has passed and before distribution is decreed. The claimant can have no just interest in that question, and cannot be permitted to moot it before this court.

Having disposed of this point, which, indeed, has been long recognized as a settled principle of the law of prize, the path is open for the consideration of the other points of the cause.

The captors contend that the whole evidence establishes that the ship and cargo are enemies' property, the property of British subjects disguised under Spanish documents, and bound to a British port. *That the voyage had its origin in London, and [ * 67 ] was to terminate there; and that the usual frauds of false papers, false destination, and suppression of evidence, have been resorted to for the purpose of giving a neutral character to hostile interests.

The counsel for the claimant deny the matter of fact, and assert that the proprietary interest of ship and cargo is bonâ fide Spanish; and endeavor, with great ingenuity and force, to explain away the difficulties with which it is admitted, on all sides, this part of the cause is surrounded. If this ground should be thought not to be entirely and satisfactorily made out, the counsel for the claimant The Amiable Isabella. 6 W. further contend that the ship was duly documented as a Spanish ship, according to the stipulations of the Spanish treaty of 1795; and that the effect of those stipulations is to preclude all inquiry into the proprietary interest of ship and cargo. Of the former, because the passport is conclusive evidence of the national character and ownership of the ship, which all persons are estopped to deny; of the latter, because, by the treaty, free ships make free goods, and the national character of the cargo becomes wholly immaterial.

To this point, which, if settled one way, is decisive of the cause, the counsel for the captors have given several answers. 1. That the passport of this ship was obtained by fraud, and this is always inquirable into, and vitiates all, even the most sacred instruments and records. 2. That the passport is not conformable to the treaty, not

having been issued by royal authority or authenticated by [ * 68 ] the royal * government, but issued by a mere colonial gov

ernor; and that, such as it is, it does not state the ship to be owned by Spanish subjects, which is indispensable under the treaty. 3. That the substituted proof required by the 17th article of the treaty, where the passport is not regular, must be such as is subject to the thorough examination of the prize court. 4. That the form of the passport, referred to in the 17th article of the treaty, never having been annexed to it by the contracting parties, that article, so far as it purports to give any effect to passports, is inoperative and imperfect, and the imperfection cannot be supplied by any judicial tribunal.

Such are the leading propositions pressed with great ability and earnestness into the discussion of this cause by the respective parties. They embrace principles of international law of vast importance; they embrace private interests of no inconsiderable magnitude; and they embrace the interpretation of a treaty which we are bound to observe with the most scrupulous good faith, and which our government could not violate without disgrace, and which this court could not disregard without betraying its duty. It need not be said, therefore, that we feel the responsibility of our stations on this occasion, and that, in delivering our opinion to the world, we have pondered on it with great solicitude and deliberation, and have looked to consequences no further than the sound principles of interpretation and international justice required us to look.

The point to which the court will first direct its attention, [ * 69 ) is that last made, namely, whether the 17th * article of the

treaty of 1795, so far as it respects passports, is inoperative and imperfect in consequence of the omission to annex the form of

The Amiable Isabella. 6 W.

the passport to the treaty. This is a very delicate and interesting question.

The 17th article provides, “ that in case either of the parties hereto shall be engaged in a war, the ships and vessels belonging to the subjects or people of the other party, must be furnished with sealetters or passports, (patentes de mar o pasaportes,) expressing the name, property, (propiedad,) and bulk of the ship; as, also, the nanie and place of habitation of the master or commander of the said ship, that it may appear thereby that the ship really and truly belongs to the subjects of one of the parties, which passports (dichos pasaportes) shall be made out and granted according to the form annexed to this treaty.” The article proceeds to declare, “ that such ships, being laden, are to be provided not only with passports, as above mentioned, but also with certificates containing the several particulars of the cargo, the place whence the ship sailed, that so it may be known whether any forbidden or contraband goods be on board the same; which certificates shall be made out by the officers of the place whence the ship sailed, in the accustomed form; and if any one shall think it fit or advisable to express, in the said certificate, the person to whom the goods on board belong, he may freely do so; without which requisites they may be sent to one of the ports of the other contracting party, and adjudged * by the competent [ * 70 ] tribunal, according to what is above set forth, that all the circumstances of the above omission, having been well examined, they shall be adjudged to be legal prizes, unless they shall give legal satisfaction of their property by testimony entirely equivalent." In point of fact, no form of a passport was made out and annexed to the treaty. The case, then, now before us, is not within the letter of the treaty, for as no form is prescribed, the documents found on board cannot be compared with any form; and until that comparison is made, it is impossible to say whether the stipulations originally intended by the treaty have been exactly and literally complied with or not. There is no room here left for interpretation, on account of ambiguous language of the parties. They have expressed themselves in the clearest manner, and it is to the passport, whose form is to be annexed to the treaty, and to none other, that the effect intended by the treaty, whatever that may be, either as conclusive or primâ facie evidence of proprietary interest, is attributed. Into the reasons why this form was omitted to be annexed to the treaty, we are not permitted judicially to inquire. It may have been by accident or by design, from difference of opinion as to what should be the solemnities accompanying it, or from a willingness to leave it to future negotiation. Can this court annex a forin to the treaty? Can it The Amiable Isabella. 6 W.

supply the deficiency of the treaty, and give effect to it in the same manner as if no form were referred to ? Can it look to the stipula

tions, and decide for itself what the parties regarded as [ * 71 ) substance, and what as mere form ? * Can it say that the

stipulations in the text would have been agreed to without the auxiliary form of the passport? Can it decide judicially that under no circumstances the form of the passport could be of the essence of the stipulations? These are grave questions, and are not to be lightly answered. They deserve and require deliberate consideration. We have given it; and our opinion will now be delivered.

In the first place, this court does not possess any treaty-making power. That power belongs, by the constitution, to another department of the government; and to alter, amend, or add to any treaty, by inserting any clause, whether small or great, important or trivial, would be on our part an usurpation of power, and not an exercise of judicial functions. It would be to make and not to construe a treaty. Neither can this court supply a casus omissus in a treaty, any more than in a law. We are to find out the intention of the parties by just rules of interpretation applied to the subject-matter; and having found that, our duty is to follow it as far as it goes, and to stop where that stops, whatever may be the imperfections or difficulties which it leaves behind. The parties who formed this treaty, and they alone, have a right to annex the form of the passport. It is a high act of sovereignty, as high as the formation of any other stipulation of the treaty. It is a matter of negotiation between the governments. The treaty does not leave it to the

discretion of either party to annex the form of the passport; [ * 72 ] it requires it to be the joint act of both; and that act * is to

be expressed by both parties in the only manner known between independent nations; by a solemn compact through agents specially delegated, and by a formal ratification.

Nor is there any thing strange or singular in leaving matters of this sort to be settled by future negotiations. In our treaty with Prussia, of 1785, the 14th article contains a provision as to passports, in substance like that of the 17th article of our treaty with Spain, except that it declares that these “ passports shall be made out in good and due form, to be settled by conventions between the parties, whenever occasion shall require.” This stipulation manifestly contemplates that the form of the passport is to be a solemn act of the treaty-making power of both governments, and that neither government has authority in its discretion to use a form which shall be binding, without its consent, upon the other contracting party.

In the next place, this court is bound to give effect to the stipula

The Amiable Isabella. 6 W. tions of the treaty in the manner and to the extent which the parties have declared, and not otherwise. We are not at liberty to dispense with any of the conditions or requirements of the treaty, or to take away any qualification or integral part of any stipulation, upon any notion of equity or general convenience, or substantial justice. The terms which the parties have chosen to fix, the forms which they have prescribed, and the circumstances under which they are to have operation, rest in the exclusive discretion of the contracting parties, and whether they belong to the essence or the model parts

of the treaty, equally give the rule to judicial tribunals. [ *73 ] The same powers which have contracted, are alone competent to change or dispense with any formality. The doctrine of a performance cy pres, so just and appropriate in the civil concerns of private persons, belongs not to the solemn compacts of nations, so far as judicial tribunals are called upon to interpret or enforce them We can as little dispense with forms as with substance.

In the next place, we cannot admit that the annexation of the form of the passport was, in itself, (supposing we had a right to inquire into it,) a matter of small moment or importance, so that the omission could be dispensed with, as not belonging to the substance of the treaty. It was competent to the parties, by the particularity of the form, to have qualified the general expressions of the article, and to have made that determinate, which, upon the face of the article, stands indeterminate. It is, for instance, indeterminate upon the face of the article, whether there is to be a specification of the names of the owners of the ship, or only a general declaration that the owners are Americans or Spaniards. It has also been contended here, and is certainly susceptible of doubt, whether the passport was to express the individual ownership, or the national character of the ship. So the solemnities to be observed in granting the passport, the oaths to be made by the parties, the persons by whom they were to be verified, are all left indeterminate by the treaty. These might have been, and looking to the requisitions of other treaties, must have been explained and settled by the form annexed to * this treaty. The 25th article of the Dutch' treaty, of 1782, [ *741 is substantially the same as the 17th article of the Spanish treaty; and the form of the passport, certificate, and sea-letter annexed to that treaty, reduce to a perfect certainty every circumstance which has been already mentioned. Other qualifications and limitations might have been added, in the pleasure of the parties. It is impossible, therefore, for this court, judicially, to say what such passport might or would have contained. We may indeed con. jecture, but in this conjecture we may err; and to assert what it

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