1821. The Amiable protection is now claimed, was conceived in the spi- a For the provisions of this treaty, viae 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. Isabella. of a passport, and of a sea letter, which are after- 1821. wards spoken of as the same, or at least, as equi- The Amiable pollent 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. c 2 Azuni, Appendix, No. 31. 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 1821. The Amiable provided for in the treaty. This exposition is the only one consistent with the spirit of the treaty, and is in furtherance of its avowed object, which was that the flag should protect the property sailing under it, if used by authority of the neutral nation. This exposition is conformable to the English version of the treaty, but is absolutely required by the Spanish; and even if there were any difference of meaning, we are bound in honour and good faith to adopt the latter, since Spain has always acted upon it, and has seldom or never thought it necessary to document her ships according to the literal requisitions of the treaty. Unless this exposition is admitted, the whole of the clause in question is nugatory. By the universal law and usage of nations, every captured ves. sel is at liberty to account for the want of tormal documents. It would, therefore, have been superfluous to insert a provision in the treaty to this effect. Something more must have been intended by the use of terms, which are to be found in no other treaty. In the case now before the Court, the omission of the required document is fully accounted for by the actual state of the mother country at the time, and by the declaration of the colonial Governor when he granted the substituted document. This ought to be considered as equivalent proof, because it is next in dignity, and approaches very nearly to a level with the royal passport itself. It is issued by an officer who is only not King; who would have been charged with the delivery and control of royal passports; who expressly declares, that it was issued in a The Pizarro, 2 Wheat. Rep. 244. |