. property. In 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, given for repairs to the ship. The sentences of 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 before the Court; and the decision of the Spanish tribunal not only warranted the Governor of Cuba in granting the passport, but even if he had not issued it, would bind this Court to consider the property as Spanish. Therefore, admitting that the captors had a right to bring in this vessel for adjudication, because she had not the passport required by the treaty, or because it was not exhibited to them at the time of the capture, still the equivalent proof is more than sufficient to supply the want of a passport in any form that can be conceived; because, it shows, that the ship was entitled to every document which could prove her to be a Spanish ship, the tribunal of the Consulado having adjudged her to be Spanish property. The captors may possibly be exempt from costs and damages; but it does not, therefore, follow, that the case is taken entirely out of the special provisions of the treaty, and left at large to be determined under the law of nations. The object of the treaty was to provide, that neutral vessels should protect goods to whomsoever belonging, with the exception of contraband only. The . 1821. The Amiable 1821. The Amiable Labella. passport was to be conclusive of the neutrality of the ship, and the certificate was to show, that the cargo was not contraband. If these documents are wanting, then the property of the ship is to be established by equivalent testimony; and that being shown to be neutral, will protect the cargo, even if enemy's property, unless, indeed, it consist of contraband articles. The "equivalent testimony" required, must mean, that other documents shall be produced which will prove precisely the same facts that were intended to be proved by the passport and certificate; and not that sort of evidence which the technical rules of the Prize Court demand in a case requiring farther proof. Doubtless the intention of the contracting parties is to be regarded in construing treaties, as it is in the interpretation of all other instruments; but that intention is to be gathered from the words they use. Although there are many treaties consecrating the maxim, that free ships shall make free goods, there is no other example of a treaty stipulating what should be conclusive evidence of the freedom of the ship. The parties to this treaty intended to exclude the jurisdiction of the Prize Courts of the belligerent as far as possible, 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 recognising the principle, 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. 1821. The Amiable The Court directed the cause to be reargued, up- March 4th, on the point as to the form and effect of the passport. The Attorney-General, for the captors and respondents, insisted, that the form of passport to which an effect so important was attributed, not having been annexed to the original treaty, by the contracting parties, could not now be supplied by the judicial tribunals of either. Such an attempt would be an encroachment on the treaty-making power, which, in our government, is exclusively confided to the President and Senate. The office of this Court is to construe, not to make or amend treaties. The treaty (art. 17.) provides, that "the ships and vessels belonging to the subjects or people of the other party, must be furnished with sea letters or passports, expressing the name, property, and bulk of the ship, as also the name and place of habitation of the master 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 passport shall be made out and granted according to the form annexed to this treaty.” These particulars were required to be inserted for 1820. 1821. The Amiable Isabella. the purpose of identifying the vessel to which the passport was intended to apply, and to satisfy the other contracting party that she is really entitled to the immunities stipulated in the treaty. The passport in the present case was either intended to certify that the ship was Captain Cacho's, or not. The words are, "Captain Cacho, with his Spanish ship called," &c. If Cacho was ineant to be certified to be the owner, the claim does not conform to it. He expressly swears that it is not his, but that it belongs exclusively to Munos, who claims. Nobody else can have restitution but the actual claimant, and he is not certified in the passport to be the owner. But the term "his Spanish ship," is evidently a mere figurative expression, and means nothing more than the ship of which he is master. What then is the import of the term "Spanish ship?" A certificate that a ship of a certain name, and bulk, and master, is a Spanish ship, is not a certificate that it is Spanish property, or in other words, the property of Spanish subjects, which is alone intended to be protectcd by the express terms of the article. A vessel may be a Spanish ship by adoption, by having a license to trade with the Indies, without ceasing to be the property of foreigners, c. becoming the property of Spanish subjects. It is not sufficient to certify the national character of the ship merely. There must be a certificate that it is the individual property of particular subjects of Spain, for to such alone does the protection of the treaty extend. The treaty being left imperfect in omitting to annex the form of passport, it is very questionable whether the stipulation as to its effect as evidence, is not wholly void. But admitting that the Court can supply the form, how is it to be done? Two modes may be selected. First, to take the literal words of the treaty; and then the passport should have stated the ship to be the property of Munos, the claimant: or, secondly, the form may be supplied by referring to other treaties similar in their nature. In the form of passport annexed to the French treaties of 1778 and 1801, the master is required to swear that "the ship belongs to one or more of the subjects of The act whereof shall be put at the end of these presents,' &c. No form of the oath which is to be thus appended is given: but the Dutch treaty of 1782, 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 ownership, to be expressed in the passport. There can be no doubtt hat this passport 1821. The Amiable |