1821. The Amiable documented as a foreign ship, conferring on her the privileges of Spanish trade, by a fictitious adoption similar to that which gave rise to the British rule of Isabella. 1756, relative to the colonial trade, would not make her a Spanish ship. And even if Spain should abuse the immunity conferred by the treaty, it is no reason why this Court should dispense with its obligations. It is for the legislative authority to determine when political considerations will justify this country in suspending any of the provisions of a foreign treaty. The Court must take the law from the treaty-making power, or from the higher legislative power dispensing with the obligations of a treaty. The cause was continued to the next term for advisement. At the present term the opinion of the Court was February 293,. delivered by Mr. Justice STORY. This cause was heard upon the whole evidence, introduced by both parties, at the last term; and as it embraced several 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 Government 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 VOL. VI. 1821. 1821. The Amiable conuned for advisement. The Court has now come to a result, which I am directed to pronounce. A preliminary question was raised at the original zure be droit argument, that the libel ought to be dismissed, beof Admiralty, cause the capture was made without public authori Whether a sei is a question entirely be tween the Go- ty, and by a non-commissioned vessel. Whether vernment and the captors, this be so or not, we do not think it material now to with which the claimant has inquire. It is a question between the Government nothing to do. 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 in-. terlocutory 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 recognised 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 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 bona fide Spanish; and endeavour, 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 farther 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 the royal Go 1821. The Amiable 1821. The Amiable vernment, but issued by a mere colonial Governor; 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 nternational 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 farther than the sound principles of interpretation and international justice required us to look. The point to which the Court will first direct its attention, is that last made, viz. 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 passport to the treaty. This is a very delicate and interesting question. 1821. The Amiable Isabella. The 17th article of the Spanish treaty of 1795, so far as it re passports, is inoperative in conse quence of the omission to treaty. The 17th article provides, "that in case either port 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 sea letters or passports, (patentes de mar o pasaportes,) expressing the name, property, (propiedad,) and bulk of the ship; as, also, the name 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 |