Whether the capture is made by a duly commissioned captor or not
is a question between the government and the captor with which the
claimant has nothing to do. If the capture be made by a
noncommissioned captor, the government may contest the right of the
captor after a decree of condemnation and before a distribution of
the prize proceeds, and the condemnation must be to the
government.
The seventeenth article of the Spanish treaty of 1795, so far as
it purports to give any effect to passports, is imperfect and
inoperative in consequence of the omission to annex the form of
passport to the treaty.
Quaere whether, if the form had been annexed and the
passport were obtained by fraud and upon false suggestions, it
would have the conclusive effect attributed to it by the
treaty?
Quaere whether sailing under enemy's convoy be a
substantive cause of condemnation?
By the Spanish treaty of 1795,
free hips make free
goods, but the form of the passport, by which the freedom of
the ship was to have been conclusively established, never having
been duly annexed to the treaty, the proprietary interest of the
ship is to be proved according to the ordinary rules of
the prize court, and if thus shown to be Spanish, will protect the
cargo on board, to whomsoever the latter may belong.
By the rules of the prize court, the
onus probandi of a
neutral interest rests on the claimant.
The evidence to acquit or condemn must come in the first
instance from the ship's papers and the examination of the captured
persons.
Where these are not satisfactory, further proof may be admitted
if the claimant has not forfeited his right to it by a breach of
good faith. On the production of further proof, if the neutrality
of the property is not established beyond reasonable doubt,
condemnation follows.
The assertion of a false claim in whole or in part by an agent
or in connivance with the real owner is a substantive cause of
condemnation.
Page 19 U. S. 2
This was the case of a ship and cargo sailing under Spanish
colors and captured by the privateer
Roger, Quarles,
master, on an ostensible voyage
Page 19 U. S. 3
from Havana to Hamburg, but really destined for London or with
an alternative destination and orders to touch in England for
information as to markets and further instructions. The ship sailed
from the Havana on 24 November, 1814, under
Page 19 U. S. 4
convoy of the British frigate
Ister, with which she
parted company on 1 December, the frigate having gone in chase of
an American privateer, and on 3 December was captured by the
privateer
Roger and carried into Wilmington, North
Carolina, for adjudication. The ship and cargo were condemned as
prize of war in the District Court of North Carolina, and the
sentence was, after the admission of further proof in the circuit
court, affirmed by that court. An appeal was then allowed to this
Court, with permission to introduce new proof here if this Court
should choose to receive it.
The original evidence consisted of the papers found on board the
captured vessel and delivered up to the captors by the master at
the time of the capture, and of certain other documents afterwards
found concealed on board or in the possession of Rahlives, the
supercargo, or of one Masuco, alias Burr, a passenger on board the
Isabella. Some of the ship's papers were mutilated and
attempted to be destroyed, and others were thrown overboard and
spoliated.
The paper of which the following is a translation, was the only
one delivered up by the master at the time of the capture:
"Don Jose Sedano, Administrator General of the Royal Revenues of
this port of Havana in the Island of Cuba &c., certify that by
authority and knowledge of the General Administrator of the
Revenues under my charge, permission has been given to ship in the
Spanish ship called the
Isabel, Captain Don Francisco
Cacho, with destination for Hamburg,
viz.,: "
Page 19 U. S. 5
"Don Alonzo Benigno Munos, registered on the day of this date,
six hundred and seventy-six boxes brown sugar, two hundred and
twenty-eight boxes white ditto, and two hundred quintals dyewood,
which he has shipped on his own account and risk, consigned to Don
Juan Carlos Rahlives, and paid 6,290, and that it may so appear, I
sign the present."
"SEDANO"
"Dated Havana, 10 Nov., 1814"
Among the papers found on board, and brought into the Registry,
with an explanation of the circumstances under which they were
discovered, were
1. A passport or license granted by the governor and Captain
General of the Island of Cuba, of which the following is a
translation:
"Number 94. PROVINCE OF THE HAVANA. Don Juan Ruiz de Apodaca y
Eliza, President, Governor, Captain General of the place of Havana
and Island of Cuba, Commandant General of the Naval Forces of the
Apostedero, &c."
"For want of royal passports, I dispatch this document in favor
of Captain Don Francisco Cacho, inhabitant of the City of Havana,
that with his Spanish
Page 19 U. S. 6
merchant ship called
Amable Isabel, of the burden of
208 1/2 tons, he may sail from this port, with cargo and register
of free trade, and proceed to that of Hamburg, there to trade and
return to his port of departure, with the express condition of
performing his voyage outward and inward, directly to the fixed
places of his destination, without deviating or touching at any
port, national or foreign, in the islands or continent of the
Indies unless compelled by inevitable accident. APODACA. Gratis.
Sebastian de la Cadena. "
Page 19 U. S. 7
2. A clearance granted by Don Pedro Acevido, Captain of the Port
of Havana, permitting the said Cacho "to proceed with the Spanish
ship
La Amable Isabel from this port to England," with a
muster roll of the officers and crew annexed.
3. A letter of instructions from Munos, the claimant, to Cacho,
of which the following is a translation:
"Havana, 10 Nov., 1814. Don Francisco Cacho. SIR: Entrusted as
you are with my ship
La Amable Isabel, which sails bound
for Hamburg or some other port of that continent or for those of
England, I hope that you will perform your duty with the exactness
you have always used, and which was my motive for making choice of
you. Consequently I will omit all further advice, particularly as
there goes in the vessel the supercargo, Don Juan Rahlives, with my
full power and instructions. You will observe all his directions as
if they were dictated by myself. Wishing you a prosperous voyage,
&c. MUNOS."
4. Articles of agreement between Munos and the master and crew
of the ship.
5. A general procuration from Munos to one Von Harten of London,
dated at Havana, May 29, 1812, with a substitution by the latter to
Rahlives the supercargo, executed at London.
6. A letter from one Tieson, dated London, November 4, 1813, to
his brother F. Tieson at Rio Janiero, introducing Rahlives
Page 19 U. S. 8
as the conductor of certain commercial operations which he had
concerted with several friends, referring his correspondent to
Rahlives himself for the details.
7. A letter from one Rhodes, dated London, to Messrs. Glover
& Co. at Rio Janeiro, introducing Rahlives, who the writer
states "goes as supercargo in the ship
Isis and acts for
Mr. John Goble of Havana and Mr. Von Harten of London," &c.
8. A letter from Hawkes & Malloret, dated Liverpool, October
28, 1803, to Brown & Co. at Rio Janiero, introducing Rahlives
as
"particularly connected with our intimate and respectable friend
Mr. George Von Harten of London, and John Gobel of Havanna, on
whose behalf he will probably visit you very shortly. It is
probable Mr. Rahlives may entrust to your management some
transactions for account of said friends and others, and we beg to
assure you we feel convinced every satisfaction will result from
such business as he may have to conduct."
9. The following circular:
"Havana, 1 May, 1812. On 15 May, we took the liberty of
addressing our friends from London, requesting their countenance to
an establishment we intended to form in this city under the firm of
Von Harten, Gobel & Co. We now have the satisfaction to inform
you of our complete success in organizing and consolidating the
same, and that we are in every respect enabled to procure to our
correspondents all those advantages which may result from
intelligence, activity, and the most respectable connections in
this island. Political considerations, however, induce us to carry
on our affairs for the future under the sole
Page 19 U. S. 9
name and firm of Mr. John Gobel, who is permanently to reside in
this country,"
&c.
10. An account of sales, dated Havana, November 16, 1814, signed
by J. Gobel, of the cargo of the English brig
Portsea,
received from Rio de Janeiro on account of Messrs. Brown, Weston
& Co. and of Rahlives, amounting to $20,313 net proceeds,
leaving to the credit of Rahlives, in Gobel's hands, half of that
sum.
11. A charter party executed at Rio de Janeiro, May 11, 1814,
between Weston and Gobel, letting to him the Portsea, and
consigning the cargo to the charterer.
12. The following letter from Munos to Rahlives:
"Havana, 10 Nov., 1814. Sir, I enclose you invoice and bill of
lading showing to have shipped in my ship called
La Amable
Isabel, Capt. Don Francisco Cacho, 1,104 boxes of sugar, and
40 half boxes of ditto, and 200 quintals of dye-wood, the principal
amount of which and charges amounts to $60,642.03, which cargo
consigned to you, you will please to take charge of on your arrival
at Hamburg, or at any other port you may find convenient to go,
proceeding to sell it on the most advantageous terms you can
obtain, that with the proceeds you may make the returns according
to the instructions I have verbally communicated to you. In like
manner I recommend to you and place under your care my said vessel
in order that the adventure may have the most favorable
termination, to which end I have given definitive orders to the
Captain, Don Francisco Cacho, that he may observe the instructions
you may communicate to him in my name. As I am so well satisfied
with
Page 19 U. S. 10
your care and diligence, and the friendship my house entertains
for you, I shall omit any further advice, wishing you a prosperous
voyage and that you may duly advise me of your proceedings and
communicate such instructions as you may think fit. Yours,
&c."
13. A bill of lading signed by the master, Cacho, acknowledging
the receipt of the cargo and engaging to deliver it to Rahlives at
Hamburg or at the port where his register might be verified.
14. A manifest entitled "Manifest of the cargo of the Spanish
ship
La Amable Isabel in its voyage from this port of
Havana to that of London," and signed by the master, being stated
in the margin that he had signed bills of lading therefor "to Don
Alonzo Benigno Munos, which he has registered on his own account
and risk, and to the consignment of Horace Solly of London."
Among the mutilated papers found on board were (1) various
accounts between Rahlives and F. Thieson. (2) An invoice of jerked
beef and tallow, shipped from Rio de Janeiro to Havana. (3) Another
invoice of the same, "for account and risk of Mr. Alonzo Benigno
Munos at Havana," per brig
Isis, Capt. Brenmer, amounting
to $22,371. (4) Invoice of sugars, &c., shipped on board the
Isis at Havana by order of Rahlives, signed by Gobel, and
amounting to $50,671. (5) Another invoice of the same, shipped on
board the
Isis, "for Falmouth and a market, to the orders
of G. Van Harten, Esq. in London," signed by Rahlives, and various
accounts between the different parties.
Page 19 U. S. 11
A claim was given in for the ship and cargo, as the property of
Don Alonzo Benigno Munos, by Rahlives, the supercargo, as agent for
the alleged owner, and the captured persons were examined on the
standing interrogatories.
Upon the order for further proof, the affidavits of the claimant
and his clerks, to the proprietary interest of the ship and cargo
in him were produced, and the proceedings before the tribunal of
the Consulado at the Havana under which the ship, which had arrived
at that port from New Providence, was sold under the bottomry bond
alleged to be given for repairs by one John Cook to the claimant
and was naturalized as a Spanish vessel. A great mass of testimony
was also produced tending (among other things) to show that the
claimant, who was father-in-law of Gobel, had not been actively
engaged in trade for many years before this shipment was made, and
that Gobel, not being a Spanish subject, all his foreign business,
and his transactions with the custom house, had constantly been
carried on in the name of Munos.
Page 19 U. S. 65
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
Page 19 U. S. 66
continued for advisement. The Court has now come to 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 noncommissioned 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;
Page 19 U. S. 67
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 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 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 the royal government,
Page 19 U. S. 68
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 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 is
that last made,
viz., whether the 17th
Page 19 U. S. 69
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.
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 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 anyone 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
Page 19 U. S. 70
by the competent 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
prima 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 form to the treaty? Can it
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
stipulations and decide for itself what the parties regarded as
substance, and what as mere form?
Page 19 U. S. 71
Can it say that the stipulations in the text would have been
agreed to without the auxiliary from 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 treatymaking
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; it requires it to be the joint act of both, and that
act
Page 19 U. S. 72
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 anything 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 treatymaking 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
stipulations 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 modal
Page 19 U. S. 73
parts of the treaty equally give the rule to judicial tribunals.
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
Page 19 U. S. 74
to this treaty. The 25th article of the Dutch treaty of 1782 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
conjecture, but in this conjecture we may err, and to assert what
it would be,
in literis would be to exercise a sovereign
control over the compact itself.
Nor are the circumstances already stated mere form or diplomatic
ceremony. They might well have entered into the very substance of
the stipulation. The counsel for the claimant alleges that the
passport intended by the treaty was to import perfect unimpeachable
verity; that it was to have a sanctity beyond that which is granted
to any other solemn instrument. Fraud would not vitiate it, nor the
most direct unequivocal breach of good faith or abuse of the
passport bring its protecting virtue into question. Assuming for
the purpose of argument that this is true, the form of the
passport, and the solemnities accompanying it were of the deepest
interest and importance to both nations. It was vital to the treaty
-- vital to the acknowledged rights derived under the law of
nations. The immunity intended by the treaty, in this view of it,
was a derogation from the general belligerent rights of both
parties. They might be willing to confide the issuing
Page 19 U. S. 75
of such passports to the Spanish high officers of state with the
royal approbation and signature, or with the corresponding
signatures of our own Secretary of State and President. They might
have full faith and confidence that under such guards, the danger
of abuses would be very much diminished, if not entirely checked.
But they might not be willing to trust to the integrity,
discretion, and watchfulness of subordinate agents; to officers of
the customs; to colonial governors, or commanders in distant
Provinces. In point of fact, our own passports have issued under
the authority and signatures of our highest executive officers.
What reason has this Court to presume that our government would
accept of a verification by inferior officers of Spain? What reason
has this Court to presume that our government would have been
satisfied with a passport signed by a colonial governor for want of
royal passports? It has not been so stipulated in the treaty. It
has not in terms dispensed with the annexation of the form of the
passport to the treaty. Even if one government had been willing to
dispense with it, it remains to be shown that the other was also
willing. And if both were willing, it would still remain to be
shown that the act of dispensation was consummated by a solemn
renunciation, for the obligations of the treaty could not be
changed or varied but by the same formalities with which they were
introduced, or at least by some act of as high an import and of as
unequivocal an authority. All that can be said in the present case
is that the subject of the annexation of the passport was taken
ad
Page 19 U. S. 76
referendam by the parties. They had competent authority
so to do, and this Court is bound to presume that they had good
reasons for their conduct. It is far more consistent with every
fair interpretation of the acts of the government to suppose that
the form of the passport was postponed with a view to the
suspension of the article until the subject was more deliberately
considered or could be more conveniently attended to than to
suppose that words of reference were used without meaning, and
forms carrying with them such important and interesting
solemnities, and such obligatory force and dignity, were hastily
abandoned at the very moment they were studiously sealed to the
text. Unless this Court is prepared to say that all forms and
solemnities were useless and immaterial, that neither government
had a right to insist upon a form after having assented to the
terms of the article, that a judicial tribunal may dispense with
what its own notions of equity may deem unimportant in a treaty,
though the parties have chosen to require it, it cannot consider
the 17th article of this treaty as complete or operative until the
form of the passport is incorporated into it by the joint act of
both governments.
Upon the whole it is the opinion of the Court, in which opinion
six judges agree, that the form of the passport not having been
annexed to the 17th article of the treaty, the immunity, whatever
it was, intended by that article, never took effect, and therefore,
in examining and deciding on the case before us, we must be
governed by the general law of prize.
Page 19 U. S. 77
This view of the case renders it unnecessary to consider the
other points made by the counsel for the captors as to the effect
of the treaty, and we therefore give no opinion upon them.
It remains then to consider whether the ship and cargo, now in
judgment, are in fact neutral or hostile property. The facts are
extremely complicated, and the evidence in many instances clashes
so as to forbid all hopes of reconciling it. It cannot be
disguised, too, that the claim is involved in much perplexity and
is shaded by some circumstances that have not been entirely cleared
away. If it were not a task from which we could derive no general
instruction, the whole evidence might be minutely examined as to
the questions of false destination, suppression of papers, and use
of false papers. But the labor would be very great, and after all
would conduce to no important purpose. We shall content ourselves,
therefore, with a brief statement of the result of our opinion.
It is to be recollected that by the settled rule of prize
courts, the
onus probandi of a neutral interest rests on
the claimant. This rule is tempered by another, whose liberality
will not be denied, that the evidence to acquit or condemn shall in
the first instance come from the ship's papers and persons on
board, and where these are not satisfactory, if the claimant has
not violated good faith, he shall be admitted to maintain his claim
by further proof. But if, in the event, after full time and
opportunity to adduce proofs, the claim is still left in
uncertainty and the neutrality of the property is not
established
Page 19 U. S. 78
beyond reasonable doubt, it is the invariable rule of prize
courts to reject the claim, and to decree condemnation of the
property. There is another rule too, founded in the most salutary
and benign principles of justice, that the assertion of a false
claim, in whole or in part by an agent of, or in connivance with
the real owners, is a substantive cause of forfeiture, leading to
condemnation of the property. These principles are not alluded to
in this case for the purpose of founding our present judgment upon
them, for we do not rely upon it as a case merely of reasonable
doubt, but to show that a case less strong might justly have
supported the decree we feel ourselves bound to pronounce -- of
condemnation.
We cannot resist the conclusion, looking to the whole evidence,
that this is a case where the whole mercantile adventure had its
origin in the house of trade of Messrs. Von Harten & Gobel, a
house domiciled in London. The ship was beyond all question a
foreign ship, but of what nation and in whose ownership at the time
when she acquired her ostensible Spanish character is studiously
concealed. She came just before her naturalization from New
Providence, and that naturalization was procured, as we feel
ourselves constrained to believe, by an imposition practiced upon
the Spanish judicial authorities by means of a pretended lien under
a bottomry bond supposed to be given for repairs. The holder of the
bond procured a judicial sale of the vessel, became himself the
purchaser, and afterwards obtained the Spanish character by a
negotiation with the Spanish Colonial government,
Page 19 U. S. 79
making awkward apologies for his asserted ignorance of the
former ownership and endeavoring to allay the well founded distrust
of that government. To this very hour, the claimant has observed a
profound silence on this point, a source of just and pregnant
suspicion, although he has loaded the cause with documentary proofs
and affidavits on other points. He has not chosen to give any
information as to the origin of the bottomry bond or former
ownership of the vessel, or of the circumstances under which the
supposed lien was acquired. Yet these facts would seem to have lain
immediately within his reach. On board, too, of the vessel at the
time of the capture was the special and confidential agent of
Messrs. Von Harten & Gobel, and also the brother-in-law of Mr.
Von Harten. Some papers were thrown over board, others were
concealed, and others spoliated. The testimony of the witnesses
upon the standing interrogatories was far from satisfactory, and it
is extremely difficult to exempt the agents on board the vessel
from the imputation of designed suppression of facts and
prevarication. The claimant, Mr. Munos, is the father-in-law of Mr.
Gobel and claims this very valuable shipment as his own property,
asserting himself to be a merchant now engaged in business. And yet
it is proved by a weight of testimony that seems difficult to
resist that Mr. Munos has not been known to be engaged in
commercial business on his own account for at least fifteen years
before the time of this shipment. And it is established in the most
satisfactory manner, and is indeed admitted by the claimant
himself,
Page 19 U. S. 80
that on account of the foreign character of Mr. Gobel, the
son-in-law of Mr. Munos, all the foreign business of Mr. Gobel has
been constantly carried on for several years under the cover of Mr.
Munos. These are a few of the extraordinary facts of this case, and
combining them with the indications of the papers found on board
and the suppressed documents which have reached the light, the
vehement presumption and almost written proof that Mr. Gobel, the
admitted partner of the English house of Von Harten & Gobel,
was the stationed agent of that house at the Havana, and the fact
that the destination was alternative, or double, to London or
Hamburg, or both, the conclusion is difficult to overcome that the
cargo was the property of Messrs. Von Harten & Gobel or some
other unknown enemy proprietor, and covered by the Spanish
character of Mr. Munos. And the Court is constrained to consider
the proceeding at the Havana as mere machinery to naturalize an
enemy's ship, and that the ship either previously belonged to
Messrs. Von Harten & Gobel or some other enemy proprietor or
was purchased at New Providence on his or their account. It is
perfectly immaterial whether Mr. Munos had any subordinate interest
in the ship and cargo or not. If his claim be substantially false
in the manner in which it is framed, having been adopted by him, he
has justly incurred a forfeiture of any such interest, by
attempting an imposition upon the prize court.
It is the judgment of the Court that the decree of the
circuit court condemning the ship and cargo
Page 19 U. S. 81
be affirmed with costs. From so much of this opinion as
respects the question of proprietary interest of vessel and cargo,
three judges dissent.
MR. JUSTICE JOHNSON.
This is an appeal from the sentence of the Circuit Court of
North Carolina, condemning this vessel and cargo as prize of war to
the
Roger privateer.
The condemnation below appears to have proceeded on evidence of
an hostile interest existing in the ship. For as to the cargo it is
not denied that the proprietary interest is immaterial, since, if
the ship be Spanish, the existence of an enemy interest in the
cargo does not affect it. Yet much of the evidence and argument
have been introduced to prove the existence of an hostile interest
in the cargo; but it has been with a view to maintain two
positions: 1st, that it is a strong circumstance to prove the
vessel to be British property, and 2d, that though it be not enemy
owned, yet, as both vessel and cargo are claimed by the neutral, if
it be proved that he has attempted a fraud, the penal consequence
is the forfeiture of his own interest.
It cannot be denied that there are many circumstances in the
case going strongly to prove too intimate a connection between this
adventure and the mercantile transactions of the house of Gobel,
consisting of Gobel and Von Harten, a British merchant. Nor is it
entirely clear that Rahlives, who appears in the machinery as
supercargo, is not himself a participator in interest. If I felt
myself now called upon to decide this case on the ordinary
principles
Page 19 U. S. 82
which govern the decisions of prize courts on neutral claims, it
must be acknowledged that there is a good deal of evidence which
must be rejected in order to clear it from the tissue of
difficulties in which the circumstances involve it. Yet there is
one important consideration which rides over all the unaccountable
combinations of interest which present themselves to the view of
the Court. Why should British property on board a Spanish vessel
have been distinguished as Spanish? There are obvious reasons why
Spanish property should have been disguised as British, for it
would have afforded protection against the only enemy a Spaniard
had to fear -- the patriot privateer. But as England was at peace
with all the world except America and enemy property secure from
American capture in a Spanish vessel, it is difficult to conceive a
reason why this disguise should have been thrown over a British
cargo. The course, however, which I will pursue in coming to a
conclusion precludes the necessity of disentangling the web in
which the interests of the claimant are wound up by the various
circumstances of the destruction, mutilation, and concealment of
papers and the questionable shape in which several of the actors in
the drama present themselves to the view of this Court.
The claimant founds his right to restitution on his Spanish
character and the sufficiency of his Spanish documents under the
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
Page 19 U. S. 83
the production of substitutes, a plenary inquiry is 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
Page 19 U. S. 84
will adopt. At present, I feel no inclination to go so much
beyond those decisions as has been here contended for.
One 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 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 to
the enlarged views and
Page 19 U. S. 85
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?
Page 19 U. S. 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 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 operates
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,
Page 19 U. S. 87
if the relinquishment 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 practiced, 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
Page 19 U. S. 88
competence by the slow progress of useful labor. It will not
perhaps be too much to say that this country is, at this time,
experiencing something of the baneful effects which flow to the
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 restrict or enlarge construction
Page 19 U. S. 89
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 powers 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 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
Page 19 U. S. 90
been removed without a careful 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 anything 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 it
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
Page 19 U. S. 91
pressed 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 everyone 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 permit 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
Page 19 U. S. 92
to war, 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,
viz., 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
nations that such questions
Page 19 U. S. 93
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 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
Page 19 U. S. 94
proceeded from accident between the negotiators in Europe, 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 anyone 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
Page 19 U. S. 95
form and shape and size like the ignorant Arab where the treaty
is substantially complied 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 to leave the neutrality
of
Page 19 U. S. 96
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 engraft 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
engraft 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 liberty
Page 19 U. S. 97
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 the case.
Sentence affirmed.
Page 19 U. S. 99
MR. JUSTICE STORY.
Without giving any opinion upon the sufficiency of the evidence
to establish the
Page 19 U. S. 100
probability that the forms of passport now offered to the
inspection of the court were ever authoritatively
Page 19 U. S. 101
annexed to the original treaty in 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 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.