1821. The Amiable protection. It is insisted that nothing less than the solemnly pledged faith of the supreme power of the neutral state to the verity of the facts stated in the passport can possibly satisfy the belligerent. The terms used in the treaty are "sea letters or passports." One of the contracting parties might understand.it as intending a document in the nature of a permanent muniment of the title to the ship. Our laws recognize no other such document, than one signed by the President. The presumption, therefore, is, that our vessels were to be furnished with a se, letter thus signed, and the Spanish vessels with a royal passport signed by the king. The cases cited on the other side, to show that such a document of protection may be granted by an authority inferior to the supreme power of the state, are not in point. In he British license cases, although this Court condemned our vessels sailing under them, yet the British prize Courts denied the authority of their admirals and consuls to issue them, and condemned the vessels taken by British cruizers although sailing under these licenses." All the other cases cited are of passports issued by the Lord High Admirals of England or France, acting as the immediate delegates of the royal prerogative, and as the ministers of the crown. There is no doubt, that Admirals and Generals, commanding fleets or armies, have the power of issuing passports for the temporary protection of persons or property, within the limits of their command. But this arises from the necessity of the case, and is incidental to the performance of a The Hope, 1 Dodson's Rep. 226. Id. Appendix, (D.) their official duties. But it is not incidental to any official duty of the Governor and Captain General of the Island of Cuba, that he should have the power of naturalizing foreign ships, giving them all the privileges of Spanish built vessels, and grant passports to protect them against belligerent scrutiny: Non ei rei præponitur. It is highly improbable that the Government of this country would have agreed to a stipulation so improvident, under which the whole navigation of our enemy might be screened from capture by a mere fictitious adoption, fraudulently or corruptly obtained for this purpose. The form of this important document being omitted, either from accident or design, there is the more necessity of looking to the substance of the contract; since, if the form had been annexed, there is no doubt that it would have required the highest authority of the State to grant a document so conclusive. The passport or sea letter provided by this treaty, is not a mere ordinary license or safe conduct given by a General or Admiral, for a temporary purpose, and within the limits of his command. It is the supreme power of the neutral State solemnly pledging itself to the belligerent, that the property of the ship is truly and bona fide neutral. The doctrine contended for on the part of the claimant, would go length of entirely abolishing maritime captures: since the passport may be issued by any authority, however inferior and however remote his functions may be from such a duty. The treaty provides, that the certificates which are required relative to the cargo, shall be issued by the officer of the place the 1821. The Amiable 1821. The Amiable whence the vessel sails, and the same proviso would have been made as to the passport, had it been intended to entrust the local magistrates with the power of granting it. Neither does an examination of the forms of similar documents annexed to other treaties, containing the same stipulation, that free ships shall make free goods, justify the inference, -that they may be issued by any authority less than the highest. So, also, the celebrated convention of 1801, between Great Britain and Russia, though it does not contain such a stipulation, but, on the contrary, subjects enemy's property in neutral vessels to capture, yet it provides for similar documents of protection, and in the formula annexed, it is stated, that they are" to be delivered in the respective Admiralties of the two high contracting parties." But the question has already been determined in this Court, in the case of the Pizarro. In that case, the Court say, "It is certainly true, that the vessel was not furnished with such a sea scribed in the 17th article." But she had on board the proceedings under which she was naturalized in East Florida, and a certificate from the Spanish Consul at Liverpool, certifying, that "Captain Don Antonio Martinez, commanding the Spanish ship called the Pizarro, of the burthen of 273 tons, registered at the port of St. Augustine de la Florida, which came to this port from the Island of Amelia, with a cargo, now sails for the port of Corunna, in letter, &c., as are de a For the provisions of this treaty, vide APPENDIX, Note No. IV. b 2 Wheat. Rep. 244. Spain." Here, then, was a certificate, stating the name, burthen, and property of the ship, and the name of the master, and issued by an authority as competent as the Governor of Cuba. Yet the Court held it not to be a compliance with the terms of the treaty, and required farther proof of the proprietary interest. 5. Supposing, however, this vessel and cargo to be documented as the treaty requires., it is insisted that they are liable to condemnation for sailing under the protection of 'enemy's convoy. It is true, that the Isabella parted company with the convoying ship before the capture; but it was a mere temporary separation, the latter having gone in pursuit of one of our privateers. Although the Court has determined, in the cases of the Nereide" and the Atalanta," that a neutral may lawfully put his goods on board an armed enemy's vessel, yet it has not determined that he may put his vessel and goods under convoy of the enemy's fleet. The distinction between the two classes of cases is stated by one of the learned Judges of this Court, in delivering his opinion in the Atalanta and the Lords of Appeal in England have held the offence of sailing under the protection of enemy's convoy to be a conclusive cause of condemnation. So, also, where certain merchant ships belonging to the Hanse towns had put themselves under a 9 Cranch, 388. b3 Wheat. Rep. 409. c Per Mr. Justice JOHNSON, 3 Wheat. Rep. 423. d The Sampson, Barney, cited by Mr. Justice STORY, in a note to the Nereide, 9 Cranch, 442. 1821. The Amiable 1821. The Amiable the protection of Swedish convoy, the latter having assumed a hostile character for the purpose of resisting the right of search, they were equally held liable to confiscation." Such, also, is the law of Denmark, à state that has always professed to maintain the mildest principles of prize law. In his correspondence with the Danish government, Mr. Erving, our minister, admits the extreme difficulty of upholding the contrary doctrine; and only seeks to escape from it by contending that the rule could not extend to vessels forced into the convoy, or accidentally involved in the enemy's fleet: and this may readily be admitted without at all weakening the force of the general rule. 6. This is an aggravated case of spoliation and concealment of papers. Were this Spaniard to be tried by his own law, he would be instantly condemned. By the law of the whole world, except that of the United States and Great-Britain, spoliation of papers is per se a cause of confiscation: and by our law it is all but damnatory. If the spoliation is unexplained, or the explanation is unsatisfactory; if the cause labours under heavy suspicions or gross prevarications, farther proof is denied, and condemnation inevitably follows. And it is a relaxation of the rules of the Prize Court to allow farther proof even where there has been a mere concealment of a The Elsebe, 5 Rob. 173 b 4 Hull's Law Journ. 467. Ordonn. of 1810. c The Pizarro, 2 Wheat. Rep. 241. The Rising Sun, 2 Rob. 106. The Hunter, 1 Dodson's Rep. 486. |