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Spain. It is one of a series of passports issued by
the Governor of the island of Cuba; is numbered
94, showing that many more of the same kind had
been issued; and the words "For want of royal
passports" are printed, which circumstance shows
that it was an established formula. The circum-
stances of the Spanish nation at that period, when
Ferdinand had been just restored to the throne, suf-
ficiently explain the cause of the defect of passports,
with the king's sign-manual. The very act of exer-
cising such an authority on the part of the colonial
Governor, is strong prima facie evidence of his pos-
sessing the power; and until rebutted by some con-
trary proof, must be considered as conclusive that
such is the usage of Spain. There is no substantial
difference between such a document and royal pass-
ports; since the latter must be issued in blank, and
sent to the different ports throughout the extent of
the Spanish dominions, and the distribution of them
entrusted to subordinate officers, so that the same
frauds may be perpetrated as are imagined in the
present instance.
What better security have we
that the royal passport itself will not be employed to
protect the trade of our enemy? It may be safely
admitted, that you may inquire so far as to ascertain
that the passport is not forged, or obtained by crimi-
nal means, or fraudulently applied to a vessel, for
which it was not issued: But if none of these cir-
cumstances occur, and the passport regularly issues,
from an authority which is competent to grant it
according to the local usages of the neutral country,
the treaty makes it conclusive, on the question of

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 pro-
perty as Spanish. Therefore, admitting that the
captors had a right to bring in this vessel for adjudi-
cation, 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 pass-
port 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 tri-
bunal 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 belong-
ing, with the exception of contraband only. The

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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

The Amiable
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ships should make free goods, without providing any 1821. 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.

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

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1821. the purpose of identifying the vessel to which the The Amiable 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 meant 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 protected 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, or 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