who is perma 1821. Isabella. name and firm of Mr. John Gobel, nently to reside in this country," &c. (10.) An ac- The Amiable count of sales, dated Havana, November 16th, 1814, signed by J. Gobel, of the cargo of the English brig Portsea, received from Rio de Janeiro, on account of Messrs. Brown, Weston & Co. and of Rahlives, amounting to 20,313 dollars net proceeds, leaving to the credit of Rahlives, in Gobel's hands, half of that sum. (11.) A charter party, executed at Rio de Janeiro, May 11th, 1814, between Weston and Gobel, letting to him the Portsea, and consigning the cargo to the charterer. (12.) The following letter from Munos to Rahlives: "Havana, 10th Nov. 1814. Sir, I enclose you invoice and bill of lading shewing to have shipped in my ship called La Amable Isabel, Capt. Don Francisco Cacho, 1,104 boxes of sugar, and 40 half boxes of ditto, and 200 quintals of dye-wood, the principal amount of which and charges amounts to $60,642 3, which cargo consigned to you, you will please to take charge of on your arrival at Hamburg, or at any other port you may find convenient to go, proceeding to sell it on the most advantageous terms you can obtain, that with the proceeds you may make the returns according to the instructions I have verbally communicated to you. In like manner I recommend to you, and place under your care, my said vessel, in order that the adventure may have the most favourable termination, to which end I have given definitive orders to the Captain, Don Francisco Cacho, that he may observe the instructions you may communicate to him in my name. As I am so well satisfied with 1821. The Amiable Isabella. your care and diligence, and the friendship my house 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 Isabella. 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 operations 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. b 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 he 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. b The Charlotte, 5 Rob. 251. 1821. The Amiable |