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 1821. The Amiable March 15th, 1820. must be according to the regular Spanish form, because both this and the royal passport for the Clara, which was also found on board, have the same expression, viz. "his Spanish ship." This is precisely equivalent to a certificate that the ship belongs to Spanish subjects. A warranty in a policy of insurance that a ship is an American ship, is a warranty that she is the property of citizens of the United States. The form of passport which was intended to have been annexed having been omitted, good faith requires that it should be supplied by construction, since it must be concluded that the parties intended to waive it. A construction has been given to the stipulation by the usage of the two countries, which is sufficient for all practical purposes. What good purpose would be answered by inserting the name of the owner? The Court could not inquire even whether such a person existed, much less as to his national character or domicil. The conclusive effect attributed to the passport, would prevent any such extrinsic investigation, and therefore a fictitious name might be inserted which would satisfy all the requisites of the treaty. So that a general certificate of the national character of the property is as efficacious as would be a certificate that it was the property of some particular person. The cause was again argued, upon the application of the executive Government, to the Court, on the question of the construction of the Spanish treaty, and the form and effect of the passports. Mr. Pinkney, for the captors and respondents, stated four points for the consideration of the Court. 1st. That the passport produced in this case, was not within the terms of the treaty, because it was obtained by fraud. 2dly. That it was not within the treaty, because not issued by the Spanish sovereign, or his known authorized substitute. 3d. That it was not within the same, because the only article which professes to provide for it, is incomplete and inofficious, the form never having been annexed, according to the terms of the article. 4th. Because the passport issued for this ship, is not conformable either with the terms or the substance of the article; since it does not state that the ship is the property of a Spanish subject, nor name any Spanish subject as the owner. This treaty is, unquestionably, to be interpreted by a just regard to the public faith, but only so fạr as the public faith is actually pledged by it. The spirit which animated the parties to the armed neutrality is to be regarded; but it must be remembered, that the celebrated confederacy which has received that name, was intended to introduce new rules, to the disparagement and repeal of those which then existed, and in derogation of the ancient law of nations. The intention of the parties to the Spanish treaty, is also to be taken into view. But this intention is to be collected from the language they have used; if that be clear and plain, there is no room for interpretation; but, if ambiguous in itself, then the intention may be fairly collected from the 1821. The Amiable 1821. The Amiable object and circumstances of the stipulation in question. In a word, the treaty is to be executed as it Isabella. is, and no new treaty to be made by the labour of exposition. 1. The object of the stipulation is expressed in the article to be "the ships and vessels belonging to the subjects or people of the other party," &c. This, necessarily, excludes all other ships or vessels. Consequently, it cannot be applied to vessels which are not really those of Spanish subjects, but only fraudulently represented to be such. It is a principle, not only of the common law, but of universal jurisprudence, that fraud vitiates every act, whether public or private; contracts, deeds, and judgments, are all affected by it, even as to bona fide purchasers. No record, however solemn, estops an allegation of fraud. Judgments of Courts of competent jurisdiction import absolute verity, wherever they are brought in question; but if obtained by fraud, they are set aside, either in the same or any other tribunal; and a person affected by the fraud may show it and avoid the judgment, though not a party to the suit. Thus a stranger may avoid a recovery in a real action, if covenous or fraudulent, and he is prejudiced by it. These analogies of the municipal law are applicable to similar cases arising under the law of nations. The comity which is due to foreign States, does not require us to respect the acts of their administrative or judicial officers when they are contaminated with fraud, and still less where this fraud has deceived those very officers, and induced them to issue Spanish papers to a Bri tish ship. In such a case, even if a royal passport had been issued, we should have a right to say, in the language of the common law, "the King has been deceived in his grant." A repetition of such transactions as the present case discloses, would bring the entire treaty into jeopardy. The honour and interest of both nations equally require that they should be repressed. The only mode of preserving the amicable relations between the two powers, is by judicial interposition, preventing the effect of such violations of the spirit of the treaty before they grow too mighty to be controlled by diplomatic remonstrance. Make these frauds successful, and encourage them by your decisions, and such violations will be frequent. On the other hand, by arresting them in limine, the presumed and declared purposes of the contracting parties will be fulfilled, and dissentions and hostilities prevented. That there must be some implied exceptions to the conclusive effect attributed to the passport by the letter of the treaty, is manifest. Such would be the case of a royal passport, signed in blank, obtained by corruption of the officer in whose custody it was, and filled up fraudulently, and applied to a vessel not entitled to the privilege. Here is a passport de facto, with all the solemnities upon its face, yet certainly examinable in this particular; and if shown by extrinsic evidence to be thus fraudulently obtained and used, not only would the captors be excused from costs and damages for detaining the vessel, but she must be condemned under the ordinary rules of prize law. So that all the mischiefs of stopping vessels at sea may arise 1821. The Amiable |