“ A mere license to a foreign ship, 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 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. ”

“ Where no coercive power exists for compelling the observance of contracts but the force of arms, honour 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. ”

“ It is a melancholy truth, that nations and their Courts are too often inclined to restrict or enlarge construction, under a temporizing policy suggested by the pressure or allurement of present circumstances. I will endeavour 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. ”

“ 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. ”

“ 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 criminal means, or fraudulently applied to a vessel, for which it was not issued: But if none of these circumstances 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. ”

“ Every such national stipulation must receive a fair and reasonable construction. One which subverts its object, which encourages fraud and perjury, and makes the stipulation destructive to the rights of both parties, and benefits their enemies only, cannot be just. So pernicious a construction destroys all the advantages of the treaty. Look at its consequences to our belligerent rights. The passport, however obtained, and attended with whatever concomitant proof of fraud and falsehood, is supposed to be incontrovertible. However clumsy and barefaced the imposition may be, still it must prevail ”

“ Most clearly the Government has a right to judge of the merits and qualifications of the person to be invested with a trust so high and important. But the Government has not delegated it to the captors, in the present case, and, therefore, they have no right to demand condemnation to their use. Nor has the Government itself interposed; nor, indeed, can it interpose, to require condemnation to its own use, until the preliminary question of prize or no prize is determined, and the Court is about to distribute the proceeds. ”

“ The truth is, and every one 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. ”

“ The spirit and intention of a treaty is always to be regarded in its interpretation. [62] Every object of such a treaty would be entirely defeated by permitting an enemy to avail himself of provisions contained in it, and intended for the exclusive benefit of a friend; and even if a Spanish subject, by perpetrating a fraud upon his own government, lends the protection of its flag to a foreigner, that Spaniard becomes himself an enemy, and cannot justly complain if he suffers the fate of an enemy. ”

“ In bello parta cedunt raeipublicae; and all the rights of prize are derived from the grant of the sovereign power. Nor can the commission be issued to the inanimate machine. It must be to the organized association of human beings who are to control and direct its force. Without a head to control and govern them, such an association would be nothing but a band of pirates. The interests of mankind will not tolerate the existence of such a monster as a ship of war without a lawful commander. ”

“ The words 'Spanish ship,' do not necessarily denote Spanish property. Spain may adopt, or naturalize foreign vessels, for temporary, or for permanent purposes, without making their owners her subjects. Even a Spanish passport given to a vessel, documented in other respects as a foreign vessel, may be held to communicate the Spanish national character. It depends on Spain to make any vessels Spanish vessels, and thus to give the protection of her flag and pass to the whole navigation of our enemy. The words here substituted, do not then necessarily import the same with the words of the treaty ”

“ Will any one 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. ”

“ 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 ”

“ 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 British ship. ”

“ On the other side, the evils flowing from the interpretation we insist upon amount to nothing. The passport is still protecting evidence to all reasonable and honest purposes. The captor who disregards it, does so at the peril of exemplary costs and damages, to be inflicted in the discretion of the Court, according to the peculiar circumstances of every case. ”

“ 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. ”

“ A passport, or sea letter, is a well known document in the usage of maritime commerce, and is defined to be a permission from a neutral State to the master of a ship to proceed on his proposed voyage, usually containing his name and residence, and the name, property, tonnage, and destination of the ship. ”

“ 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 labour 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. ”

“ The object of the treaty was to provide, that neutral vessels should protect goods to whomsoever belonging, with the exception of contraband only. The 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. ”

“ In a word, the treaty is to be executed as it 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 ”

“ The testimony furnished by the papers found on board the captured vessel, is such, as, according to the treaty between the United States and Spain of 1795, is conclusive on the question, and entitles the claimant to immediate restitution. This treaty forms a conventional law on the subject of neutral commerce, essentially different from the general law on the same subject. [7] By the 15th article it is stipulated, that the ships of either nation may sail from any port to those of a country which may be at war with either or both nations, and may go to neutral places, or to other enemy ports ”

“ Enlightened views of interest would induce the neutral State not to permit any but its own subjects to avail themselves of the concession; and though every possible abuse might not be prevented, yet cases of fraud would rarely occur, and the evils produced would be far outweighed by the immense importance of the general security of commerce, and the consequent mitigation of the evils of war. ”

“ 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. ”

“ The proofs of proprietary interest, upon the original evidence, are not such as to entitle the claimant to restitution, without farther proof. As to the ship, there is no doubt that if bona fide Spanish property, and documented according to the treaty, she must not only be restored, but the cargo also must be included in the restitution, even if proved to be enemy's property. ”

“ 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. ”