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." No final decree of condemnation can, therefore, now be pronounced.

2. 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. 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; and that every article on board, except contraband, to whomsoever belonging, shall be free. In order to carry into effect this stipulation for the unlimited liberty of commerce, and that free ships shall make free goods, it is provided by the 17th article, that the vessel shall be furnished with a passport expressing her national character, and with certificates to show, that the cargo is not contraband. To this passport a conclusive effect is attributed. It establishes the national character of the ship; and that being pro

a The Thomas Gibbons, 8 Cranch, 421.

b For the provisions of this treaty, vide APPENDIX, Note No. 1.

ved, renders it immaterial to inquire respecting the cargo, except so far as to ascertain by the certificate, that it is not contraband. The 18th article requires the cruisers of either party, meeting the merchant vessels of the other upon the high seas, to remain out of cannon shot, and only authorises them to send on board two or three men, and if the passport be exhibited, the vessel is not to be molested; and by the 17th article, if the prescribed documents are not exhibited, she may be sent in for adjudication, and condemned as prize, unless testimony entirely equivalent shall be produced. The ship now in question, was furnished with such a passport and certificate as the treaty prescribes. It is true, that the form of passport, intended to have been annexed to the treaty, never was, in fact, annexed by the negociators, owing to accident or negligence, or some other cause which we cannot now explain. We are not, however, without the means of ascertaining what will satisfy the requisitions of the treaty. 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." Although it evidences the permission of the State to navigate the seas, yet it does not, therefore, follow, that it must issue directly from the supreme power

a Marshall on Ins. 406.

1821.

The Amiable
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1821.

The Amiable

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of the State; and some authority ought to be shown to support such a position. This erroneous notion, probably, arises from the practice of our own country, which is different from that of all other nations. Previous to the year 1793, no other documents were furnished to the merchant vessels of the United States but the certificate of registry and clearance; but the depredations upon our commerce having commenced with the European war which broke out in that year, a form of sea letter was devised, and to give it greater effect, was signed by the President. On the 28th of November, 1795, a treaty was made with Algiers, by which a passport was to protect our vessels from capture by Algerine cruisers. By the act of the 1st of June, 1796, c. 339. Congress authorised the Secretary of State to prepare a form, which, when approved by the President, should be the form of the passport. Neither the treaty nor the law required the President's signature, but the form prepared was signed by the President, as the sea letter had been. But this, our peculiar practice, forms no rule of conduct obligatory on others; and will not authorize us to give a more restricted meaning to the term used in a treaty than the general usage of nations will warrant. The word passport," thus used, is taken from the same word, signifying a permission given to individuals to remove from one

a "Passaporte. Passeport. Lettre ou brevet d'un prince ou d'un commandant pour donner la liberté de voyager, d'entrer et de sortir librement de ses terres. Fides publica." Sobrino, Nouv. Dict. Espagnol, Français, et Latin.

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place to another, and the documents are analogous. 1821. Vattel states, that, " like every other act of supreme The Amiable cognizance, all safe-conducts or passports flow from the sovereign authority; but the Prince may delegate to his officers the power of furnishing them, and with this they are invested, either by express commission, or in consequence of the nature of their functions. A General of an army,,from the nature of his post, can grant them; and as they are derived, though mediately, from the same Prince, all his generals are bound to respect them." So, also, Blackstone speaks of the offence of violating passports, or safe-conducts, granted by the King or his Ambassadors." It is then incidental to the commission of an Admiral or General, or public Minister, to issue these documents of protection for persons or property. By the usage of all commercial countries, they are issued by the superior officers superintending the marine affairs of the kingdom, province, city, or colony, where granted, and as representing the Sovereign in those places. In France, they have always been issued by the Admiral of France, except during the revolution, when they were issued by the Minister of Marine."

a Vattel, Droit des Gens, l. 3. c. 17. s. 265. et seq.

b 4 Bl. Comm. 68.

c Wheat. Capt. 59.

d" PASSEPORT. C'est une permission de l'Amiral pour voyager en sureté et être reconnue par tout. C'est sur ce passeport que les bâtimens de commerce naviguent." Encyclop. Meth. art. Marine.

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1821. In the King of Prussia's ordinance of neutrality, The Amiable passports and sea-letters are spoken of as issuing from Admiralties, Maritime Colleges, or magistrates of cities. And in the celebrated answer to the Prussian Exposition des Motifs, it is said, that until the year 1746, the usual document was a certificate from the Admiralty that the ship was Prussian. Afterwards a pass under the royal seal of the regency of Pomerania at Stettin was used. In our treaty with Holland, the form of a sea letter is given, which is in the name of the burgomasters and regents of the city, acting under an ordinance of the States General. In England, such documents are issued by the Lords Commissioners of the Admiralty, as is shown by the papers in the case of the Nereide in this Court: and on foreign stations, they may be issued by the Admirals commanding those stations. In the famous Black Book of the Admiralty, we find it laid down, that all intercourse with the enemy is prohibited, unless under a special license from the King or his Admiral. In the case of the ships taken at Genoa, Sir W. Scott declares, that Lord Keith, as Admiral commanding the expedition, had a right to grant passports to protect the ships sailing under them. And in this Court, the licenses issued by Admiral Sawyer, and countersigned by a

a 2 Azuni, Appx. No. 9. p. 401. Johnson's Transl.

b Wheat. Capt. Appx. No. I. p. 334. Report of Sir George Lee, &c. Vide APPENDIX, Note No. II.

c 9 Cranch, 388.

d Wheat. Capt. 159.

e 4 Rob. 317.