At 1821. The Amiable British Consul, were determined to be passports which would protect against British capture. Gibraltar, these documents are issued in the name of, Isabella, and signed by, the Commissioners of the Admiralty at that place. As to the usage of Spain, it appears, by a royal passport, found on board the Isabella, and issued for another ship called the Clara, to be usually issued at home by the Secretary of the Marine in the King's name; but it also appears by an indorsement on this very paper, that the Spanish commandants of foreign stations, or Apostaderos, may alter such passports, and grant liberty to change the course of the voyage. And they may also issue original passports, in their own name, where there is a deficiency of royal passports, and the vessel has not been previously documented. Such is the passport which was issued to the Isabella in the present case. The power to issue such documents of protection, is necessarily incident to the vast authorities conferred on the Spanish colonial governors; and the case of the British ship of war Eliza, which was compelled to enter the port of Havana in distress, in time of war, and to which the Captain General, after relieving her wants, gave a passport to protect her from capture, is an example of the exercise of the power in question highly honourable to the generosity of the Spanish character. The treaty under which a The Julia, 8 Cranch, 181. The Aurora, 8 Cranch, 203. The Hiram, 8 Cranch, 444. The Ariadne, 2 Wheat. Rep. 143. b Reeves' Law of Ship. Appx. No. 9, in fin. c Raynal Hist. tom. 7. p. 455. 1821. The Amiable protection is now claimed, was conceived in the spirit of that benevolent policy so long cherished by the United States, and which Spain has reciprocated. It has for its object to limit the range of warfare on the high seas, and to extend the immunities of the neutral flag. In this spirit it ought to be construed. A comparison of its provisions with those of other conventions for the same object, will show the correctness of the interpretation for which we contend. In the French treaty of 1778," which was the forerunner of the armed neutrality of 1780, a passport or sea letter in a certain form is provided to protect the ship. But there is nothing from which it can be inferred that this document is to issue from the supreme executive of the respective nations. To show how subordinate a consideration was that of form, it is deserving of remark, that the form actually annexed to the treaty, omits a circumstance which the text of the treaty expressly requires-" the place of residence of the master." So that a passport precisely corresponding with the form annexed, was adjudged by the Court of K. B. in England, who had not seen the annexed form, to be substantially defective in this respect, and thus to falsify the warranty of neutrality in a policy of insurance. So the treaty with Holland of 1782, contains analogous stipulations with those of the Spanish treaty. It gives the form a For the provisions of this treaty, vide APPENDIX, Note No. III. b Baring v. Christie, 5 East's Rep. 398. c For the provisions of this treaty, see APPENDIX, Note No. III. of a passport, and of a sea letter, which are afterwards spoken of as the same, or at least, as equipollent documents. The passport does not show by whom it is to be signed; but it shows, that it may be issued by individuals signing their own names, and affixing their own private seals, and that it was not thought necessary, that it should issue in the name of the chief magistrate; and the sea letter is unequivocally to be issued by an authority less than the supreme power of the State. The treaty of 1783, with Sweden," repeats the same stipulations of the unlimited liberty of commerce, and that free ships should make free goods; and to prevent disputes, a passport or sea letter is to be furnished, showing that the vessel belongs to a subject, which is to protect from all further inquiry, and is to be made out in "good form." Here the form is avowedly left to the exercise of an honest discretion on each side. In the treaty with Prussia, of 1785, the same conclusive effect is attributed to the sea letter or passport, the form of which was to be subsequently concerted by the contracting parties. From these the treaty with Spain was copied, whose Government gloried in being the first among the southern powers of Europe that acceded to the principles of the armed neutrality. One of the leading principles asserted by that confederacy, went to exclude a For the provisions of this treaty, see APPENDIX, Note No. III. b For its provisions, see APPENDIX, ib. e 2 Azuni, Appendix, No. 31. 1821. The Amiable Isabella. 1821. The Amiable from the jurisdiction of the belligerent Prize Courts whatever was done under the neutral flag, and to render it matter of negociation between State and State. A national contract made to carry into effect this principle, is to be construed according to its intention and spirit, which meant to rely upon the justice and honour of both nations, that neither would impart to enemy vessels the immunities which were intended to be confined to neutral property. 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. The authority of the Spanish Government, to issue a passport certifying the proprietary interest in the vessels of its own subjects is unquestionable, and the local law and usage must determine its form, and the authority by which it is to be issued. 3. But supposing the passport produced not to be precisely such as the treaty intended, yet it is insisted, that, with the other documents, it furnishes testimony" entirely equivalent," according to the expression used in the 17th article. It is important to fix the precise meaning of the last clause of that article. The preceding clauses stipulated, that the ship shall have a passport to show that she belongs to the neutral State, and a certificate to show that her cargo (to whomsoever belonging) is not contraband. By the 18th article, if she is furnished with these documents, she is to be exempt from all detention or molestation. If not furnished with them, she may be carried in for adjudication, and then must account for the omission, and furnish other testimony, which, considering all the circumstances, shall be of equal value with that omitted. Suppose the omission satisfactorily accounted for: what is the equivalent testimony required by the treaty? Most certainly it is, that which completely proves the same facts which the omitted documents would have proved. Even a passport, in due form, does not prove that the ship is, in fact, neutral. With whatever formal solemnities it may be cloathed, it must issue from the custom house of the power by whom it is granted. It may be issued improperly. The officers authorized to issue it, may be deceived by fraud and perjury. The possession of the document only proves the fact that the property of the ship has been decided to be neutral by the competent authorities, by those to whom the sovereign power of the State has entrusted the examination of the question. Their determinations are made conclusive by the treaty, and import absolute verity, in the same manner as the solemn judgments of the Courts of justice. If, then, this document cannot be had, but its absence is accounted for, and other papers are produced, which however inferior in formal solemnity, unequivocally prove such a decision by the competent authority of the neutral State, then this secondary evidence is completely equivalent to the passport and certificate 1821. The Amiable |