1821. The Amiable you, your care and diligence, and the friendship my house entertains for I shall omit any further advice, wishing you a prosperous voyage, and that you may duly advise me of your proceedings, and communicate such instructions as you may think fit. Yours, &c." (13.) A oill of lading signed by the master, Cacho, acknowledging the receipt of the cargo, and engaging to deliver it to Rahlives at Hamburg, or at the port where his register might be verified. (14.) A manifest, entitled "Manifest of the cargo of the Spanish ship La Amable Isabel, in its voyage from this port of Havana to that of London ;" and signed by the master; being stated in the margin that he had signed bills of lading therefor "to Don Alonzo Benigno Munos, which he has registered on his own account and risk, and to the consignment of Horace Solly of London.” Among the mutilated papers found on board were, (1.) various accounts between Rahlives and F. Thieson. (2.) An invoice of jerked beef and tallow, shipped from Rio de Janeiro to Havana. (3.) Another invoice of the same, "for account and risk of Mr. Alonzo Benigno Munos at Havana," per brig Isis, Capt. Brenmer, amounting to 22,371 dollars. (4.) Invoice of sugars, &c. shipped on board the Isis at Havana by order of Rahlives, signed by Gobel, and amounting to 50,671 dollars. (5.) Another invoice of the same, shipped on board the Isis, "for Falmouth and a market, to the orders of G. Van Harten, Esq. in London," signed by Rahlives, and various accounts between the different parties. A claim was given in for the ship and cargo, as the property of Don Alonzo Benigno Munos, by Rahlives, the supercargo, as agent for the alleged owner; and the captured persons were examined on the standing interrogatories. Upon the order for farther proof, the affidavits of the claimant and his clerks, to the proprietary interest of the ship and cargo, in him, were produced, and the proceedings before the tribunal of the Consulado, at the Havana, under which the ship, which had arrived at that port from New-Providence, was sold under the bottomry bond alleged to be given for repairs by one John Cook, to the claimant, and was naturalized as a Spanish vessel. A great mass of testimony was also produced, tending, (among other things,) to show that the claimant, who was father-in-law of Gobel, had not been actively engaged in trade for many years before this shipment was made; and that Gobel, not being a Spanish subject, all his foreign business, and his transactions with the custom house, had constantly been carried on in the name of Munos. Mr. Gaston, for the appellant and claimant, argued, 1. that the prize allegation, in this case, ought to be dismissed, because the libellants had shown no lawful authority to make the capture in question, and, therefore, condemnation could not be pronounced in favour of the captors; but, even if the proprietary interest were proved to be enemy's, it must be condemned as a droit of admiralty to the use of the government. It is a well established principle 1821. The Amiable Feb. 22, 1820. 1821. The Amiable of the law of prize, that the captors must show an authority to capture as prize, and exhibit their title deeds." Here the commission is issued to the vessel itself, without naming the commander who is to direct her operatious as a cruizer. The commander, by whom the seizure was actually made, had no commission or authority whatever, other than what was delegated to him by the owners of the vessel. The capture is, therefore, null, so far as respects the captors. On general principles; no persons can rightfully carry on war but those who have a particular authority from the sovereign power of the state. With regard to private armed vessels, unless they have a public commission, their acts are absolutely unlawful, and all on board may be treated as pirates. At all events, they can derive no title under captures thus made, unless they have a commission. In bello parta cedunt ræipublicæ; and all the rights of prize are derived from the grant of the sovereign power. Nor can the commission be issued to the inanimate machine. It must be to the organized association of human beings who are to control and direct its force. Without a head to control and govern them, such an association would be nothing but a band of pirates. The interests of mankind will not tolerate the existence of such a monster as a ship of war without a lawful commander. Even when thus governed, they require to be watched with vigilance, and controlled by the government, least they involve the nation with its al a The Melomasne, 5 Rob. 43. Vattel, Droit des Gens, l. 3. c. 15. s. 226. lies, or with neutrals. For this purpose it is necessary that the government should designate and commission their officers. So strict is the doctrine of the Court of Admiralty on this subject, that a capture made by a public commissioned ship, the commander not being on board at the time, is regarded as if made without a commission. So, also, by our own law, the act declaring war, June 18th, 1812, c. 425., authorises the President to issue commissions or letters of marque and reprisal, in such form as be shall think proper to dictate and in the form which he has actually prescribed, the names of the captain and lieutenant are required to be inserted. The Prize Act of June 26th, 1812, c. 430., imposes very strict duties upon the commander, which he is to perform personally, and cannot devolve upon another. He is, among other things, to give bond, and is made responsible for his own misconduct and that of the crew; is to receive and execute the President's instructions; is to keep a journal of the ship's transactions; and by his personal negligence or misconduct, may forfeit the commission, and the rights of prize derived under it. Most clearly the Government has a right to judge of the merits and qualifications of the person to be invested with a trust so high and important. But the Government has not delegated it to the captors, in the present case, and, therefore, they have no right to demand condemnation to their use. Nor has the Government itself a The Thomas Gibbons, 8 Cranch, 421. The Charlotte, 5 Rob. 251. 1821. The Amiable 1821. The Amiable Isabella. 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. For the provisions of this treaty, vide APPENDIX, Note No. I. |