"This recommendation, assuming, as it does, the legality of sea letters, and of consular certificates of ownership, may well be repeated and could be safely carried out. "Whether it is desirable to go further than this, and to define the authority to issue such letters and certificates, I beg leave with much submission to doubt. At present the whole matter is under the control of the Executive; and the best that legislation in this respect could do would be to confirm the practice now existing and constantly acted on by which consuls give certificates of ownership on due proof to citizens of the United States purchasing foreign built vessels in foreign ports. No legislation, also, is required to authorize the Department of State to issue sea letters in the form in which they were issued from the beginning of our government down to the present day. But one thing at least is clear. If we permit this prerogative of sov ereignty, given to the Executive not only by our statutes but by the law of nations, to fall into disuse, we not only expose American ships on the high seas to depredations which we will be unable to check or punish, but we surrender the opportunity of absorbing, in case of a European war, the carrying trade of the belligerents, and we would subject by doing so, the commerce of the world, so far as concerns such belligerents, to almost total stoppage. In a war, at least, in which England is concerned, we are almost the only nation that could take up such carrying trade; and if we should take it up adequately so as to retain it, this must be by foreign-built vessels owned and manned by ourselves." Sec. 340 of the Consular Regulations of 1881, above referred to, is the The treaties referred to by Dr. Wharton in his opinion are those of the "Although the act [of March 2, 1803] speaks of a sea letter and a passport, it is difficult to ascertain the difference between the two documents. In various treaties the words passport and sea letter are used as synonyms. "The word passport appears to have been adopted with reference to the requirement of such a document for vessels bound to the Mediterranean, under the treaties with the Barbary Powers, certify ing to the nationality of vessels owned by Americans. The Department of State, before the passage of this act, had adopted a certification of the American ownership of all American vessels, other than registered vessels, for the security of such vessels in the wars then pending in Europe, by reason of which the Americans, as neutrals, were enjoying a large part of the carrying trade. "On May 13, 1793, Mr. Hamilton enclosed to the collector of the port of New York forms of sea letters to be furnished for the identification and security of all ships and vessels belonging to citizens of the United States, and Mr. Jefferson, the Secretary of State, in a letter to Mr. Morris, our minister in France, under date of June 13 in the same year, enclosed copies, which he terms forms of passport, in which he says: 'It is determined that they shall be given in our own ports only, and to serve but for one voyage. It has also been determined that they shall be given to all vessels bona fide owned by American citizens wholly, whether built here or not.' "The vessels not registered furnished with such documents appear to have been called sea-letter vessels,' as distinguished from registered vessels of the United States. The ambiguity as to the meaning of the word passport arises from the statute of 1803 requiring passports to be issued to all vessels owned by American citizens sailing with a sea letter, and is not satisfactorily explained in the opinion in Sleght . Hartshorne (2 Johns. R. 531-543). Chief Justice Tilghman, of Pennsylvania, however, in his opinion delivered in`Griffith v. The Ins. Co. (5 Binn. 464), says that the sea letter issued under the authority of the President in 1793 was a passport within the meaning of our treaties with France, Spain, Holland, etc., and that the passport mentioned in the acts of 1796 and of 1803 was a document required by our treaty with the Dey of Algiers of the 5th of September, 1795, by the fourth article of which eighteen months were allowed for furnishing the ships of the United States with passports. The sea letters, which operated as passports among the European nations, he says, were printed in English, French, Spanish, and Dutch, while the Mediterranean passport was in the English language only, with an engraving, and indented at the top, so as to be easily distinguished by the eye by an examination of the indented part, of which a counterpart was furnished the Algerine cruisers. The chief justice accepted the view (as to the nature of these documents) of the Hon. A. J. Dallas, one of the counsel in the cause, who afterwards, as the Secretary of the Treasury, adopted this distinction between the sea-letter and the passport, in a circular to the collectors of the ports of the United States in 1815. The view that the word passport is to be confined to a Mediterranean pass under the treaties with the Barbary Powers is confirmed by Reeve's History of the Law of Shipping, 424, and the American document called a passport, of which the commencement is given in Baring v. Claggett (3 B. & P., 202), corresponds with that of the sea letter prepared during the administration of President Garfield. The sea letter would appear to be a certificate of nationality and distinct from the formal document called for by a treaty with that particular naval power. "Congress also, in 1803 (Rev. Stat., § 4191), passed an act imposing a penalty on any person who should make, utter, or publish any false sea letter, Mediterranean passport, or certificate of registry, or who should avail himself of the same. "This act recognizes the sea letter and Mediterranean passport as a certificate of national character similarly with the registry required by vessels of the United States, and later on, in 1825, an act was passed (Rev. Stat., § 5423) making it criminal to forge or alter as well such pass or passport and sea letter as a certificate of enrollment or registry. "These acts sufficiently indicate that Congress has recognized the national character of undocumented vessels owned by American citizens, and has provided for their identification as vessels of the nationality of the owners. "To what vessels sea letters should be issued, and the character of the document, was also defined by the subsequent act of 26th March, 1810. (Rev. Stat., § 4190.) "It provides, No sea letter or other document certifying or proving any vessel to be the property of a citizen of the United States shall be issued except to vessels duly registered or enrolled and licensed as vessels of the United States or to vessels which shall be wholly owned by citizens of the United States, and furnished with or entitled to sea letters or other custom-house documents."" Opinion of Morton P. Henry, esq. (of the Philadelphia bar, and author of a treatise on Admiralty Jurisdiction and Procedure), given to Dr. Francis Wharton, April, 1887, and printed in Wharton's Digest (2nd ed.) III. 994; also printed supra, p. 1026. "In accordance with the request contained in your letter of the 28th ultimo, I enclose to you herewith a special passport for the American schooner Sarah W. Hunt, which it is hoped will be of use to her in her sealing and trading voyage to the South Seas." Mr. Blaine, Sec. of State, to Mr. Irsch, April 22, 1889, 172 MS. Dom. The passport was as follows: UNITED STATES OF AMERICA, DEPARTMENT OF STATE. To all whom it may concern: Know ye that the American schooner "Sarah W. Hunt," whereof James W. Budington, a citizen of the United States, is master. is bound from Stonington, one of the seaports of this country, to the South Seas on a sealing and trading voyage; Whereof I request all whom it may concern not to give or to suffer to In testimony whereof, I, James G. Blaine, Secretary of State of the JAMES G. BLAINE. In the case of the sale to an American company of the Corean schooner Kyeng II., renamed Janice, the consular officer who acted in the matter was instructed that in giving in future the certificate (Form No. 35) referred to in § 343 of the Consular Regulations of 1896, he might, if for any reason he deemed it desirable, attach thereto a statement quoting §§ 341-347 of the Consular Regulations, as to the right to acquire property in foreign ships and to fly the United States flag on such vessels. Mr. Cridler, Third Assist. Sec. of State, to Mr. Allen, consul-general at The commander in chief of the United States naval force on the Asiatic "It is to be understood that every vessel of the United States, which is afloat, is bound to have with her from the officers of her home port, either a register or an enrolment. The former is used when she is engaged in a foreign voyage or trade, and the latter when she is engaged in domestic commerce, usually called the coasting trade. If found afloat, whether by steam or sail, without one or the other of these, and without the right one with reference to the trade she is engaged in, or the place where she is found, she is entitled to no protection under the laws of the United States, and is liable to seizure for such violation of the law, and in a foreign jurisdiction or on the high seas, can claim no rights as an American vessel.” Miller, J., Badger r. Gutierez, 111 U. S. 736, 737. See supra, p. 1033, note. In this case it is held that a collector who detains a ship's papers, when the ship is not under seizure, and when her papers are not deposited with him for the purposes of entry and clearance, subjects himself to an action for damages. 5. ARMING OF MERCHANT VESSELS. § 326. "In answer to your request for an expression of opinion in regard to Mr. Ogden's question whether a vessel which he is said to be fitting out for a trading voyage to the South Sea Islands, can carry two guns and other arms for protection and defense against the natives, I am not aware of any international prohibition or of any treaty provision which would prevent a vessel trading amid the groups of islands of the South Sea from carrying a couple of guns and arms for the proper and necessary protection of the vessel against violence on the part of lawless or partially civilized communities, or of the piratical crews which are represented to occasionally frequent those waters, providing always that the vessel carrying such guns and arms itself be on a lawful voyage and be engaged in none other than peaceful commerce, and that such guns and arms be intended and be used solely for the purpose of defense and of self-protection." Mr. Fish, Sec. of State, to Mr. Morrill, Feb. 8, 1877, 117 Dom. Let. 54. "A copy of your No. 23, of the 10th instant, in regard to the case of the American schooner Water Witch, which arrived in Haytian waters with two cannon and sixty pounds of powder on board, having been transmitted to the Secretary of the Treasury, that official has replied to your enquiry whether sailing vessels of the United States are allowed to carry any armament as ship's stores, or otherwise, that the laws do not forbid the carrying of articles of the character mentioned, provided there shall be no violation of Chapter LXVII. of the Revised Statutes.” Mr. Gresham, Sec. of State, to Mr. Smythe, min. to Hayti, Jan. 31, 1894, Chap. LXVII., R. S., embracing §§ 5281-5291, relates to neutrality. Sec. "SEC. 5289. The owners or consignees of every armed vessel sailing out of the ports of the United States, belonging wholly or in part to citizens thereof, shall, before clearing out the same, give bond to the United States, with sufficient sureties, in double the amount of the value of the vessel and cargo on board, including her armament, conditioned that the vessel shall not be employed by such owners to cruise or commit hostilities against the subjects, citizens, or property of any foreign prince or state, or of any colony, district, or people, with whom the United States are at peace." It should also be borne in mind that a merchant vessel using arms for acts of destruction on the high seas, unless duly commissioned for the purpose, may expose herself to a charge of piracy. The law does not prohibit armed vessels belonging to citizens of the United States from sailing out of our ports; it only requires the own |