Sixth.

The Portuguese courts of probate, or orphans' courts,
have no authority whatever, in the distribution of the
effects of British subjects deceased, in Portugal, but
the same is referred to the judge conservator, under
whose superintendence administrators are appointed
by a majority of the British merchants resident in
the place. Fifth. British subjects in Portugal, have
the privilege of being paid their debts due to them by
Portuguese subjects, whose property may be seized
by the inquisition, or the king's exchequer.
They are exempted from the operation of the funda-
mental law of the Portuguese monarchy, which has
immemorially excluded every other religion from
Portugal, except the Roman Catholic; and they are
permitted to enjoy their own religious principles and
worship as Protestants. Seventh. This favoured na-
tion are also exempted from all the monopolies, and
other exclusive privileges, with which the internal
and external commerce of Portugal and her colonies
are cramped and restrained, and to which Portu-
guese subjects are exposed. The only exception to
this immunity is the crown farm, for the exclusive
sale of certain precious productions. The treaty of
1810, now subsisting, confirms and renews all the
privileges and immunities granted by former treaties,
or municipal regulations, except only the stipulation
that free ships should make free goods. These pri-
vileges and immunities segregate British residents in

a 2 Chalmers, 271. Ib. 281.
c Chalmers, 265.

b 2 Chalmers, 260.

d Treaty of 1810, art. 3.

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Portugal from the general society, and from the commercial, political, and ecclesiastical regulations of the country. They distinguish those residents from the other inhabitants, as much as the merchants of Christendom are distinguished from the natives in the oriental countries. The privileged character of Chris- . tians, established in those countries, depends as much upon the conventional law, as does that of British subjects settled in Portugal. The treaties and capitulations between the powers of Christendom and the Porte secure to the subjects of the former, privileges not more extensive than those which are now enjoyed, and have been enjoyed from time immemorial, by the British in Portugal. It is true, that by the treaty of 1810, art. 26. his Britannic majesty renounces the right of establishing factories or corporations of merchants in the Portuguese dominions, but there is a proviso, that this concession "shall not deprive the subjects of his Britannic majesty, residing within the dominions of Portugal, of the full enjoyment, as individuals engaged in commerce, of any of those rights and privileges which they did or might possess, as members of incorporated commercial bodies; and, also, that the trade and commerce carried on by British subjects shall not be restricted, annoyed, or otherwise affected, by any favours within the dominions of Portugal;" and in the case of Mr. Fremeaux, the lords of appeal in England decided, that the claimant was to be considered as a Dutchman, because he carried on trade at Smyrna, under

a Valin, Sur l'Ordon. 234, 235. 2 Chalmers, 436.

the protection of the Dutch consul, although it was proved in that gentleman's case, that there was no Dutch factory at Smyrna, and that the Dutch merchants there are not incorporated."

Mr. Gaston, for the respondents and claimants. 1. On the first point the claimants have to encounter a difficulty purely technical, which cannot pretend to a foundation in justice, and which, indeed, aims to prevent a decision upon the merits of the controversy. If this difficulty can neither be surmounted nor escaped without a violation of the established principles and rules of jurisprudence, the claimants must submit without repining. But it will be impossible for the friends to the repose of nations, and to the impartial administration of justice in the courts of belligerents, not to regret, that the highest tribunal in our land should find itself so fettered with forms, as to be unable to do what shall appear to them to be right; as to be compelled to condemn as prize of war what the inferior tribunals shall have restored, (in their opinion justly,) as neutral property. The captors' objection is founded on a literal exposition of the decree of August, 1814, inconsistent with its obvious meaning. However desirable it may be that precision should be used in drawing up the decrees of judicial tribunals, yet the infirmity of human nature, and the imperfection of human language, alike demand that these decisions should not be perverted by verbal criticism from their substantial import. No one can doubt the

a Cited in the Indian Chief, 3 Reb. 32. Ib. App. Note No. I. 295.

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meaning of the sentence of August, 1814. No one can hesitate to say, that it designed not to condemn such parts of the cargo as were evidenced by bills of lading addressed to consignees, specially named in them. This design appears as distinctly as though it had been expressed in the most formal terms. The court exempts from condemnation, and reserves for farther proof, all the cases of bills of lading deliverable to shipper or order, which are specially endorsed to consignees. A fortiori, it could not but exempt from condemnation, those where the bills of lading are addressed to consignees specially named in the bills of lading. It is the order of the English shipper for the delivery of the goods to the Portuguese consignee, that raises the doubt where resides the proprietary interest; whether in the shipper or in the consignee. And unquestionably the probability that such interest in the consignee is, at least, as strong where the consignment is original, and on the face of the bill of lading, as where it is made by an endorsement of the bill. The sentence of August, 1814, which is insisted on as condemning the property in question, could not have that effect until it was completed. A blank was purposely left for the insertion of the parts of the cargo intended to be condemned. Until this blank was filled up, or something done by the court equally definitive and precise, the sentence was necessarily imperfect, both in substance and in form. This imperfection continued as to the district court until August term, 1816, and then the property in question was not only not condemned, but ordered to be restored. The affirmance of the sentence of August, 1814, by

the circuit court was in general terms. It cannot,
therefore, have any other effect than if the sentence
affirmed had been repeated in totidem verbis. The
sentence of condemnation, therefore, of the circuit
court of May, 1815, was incomplete; and remained
so until November term, 1816, when in direct terms
it was declared that it should not apply to the present
claims. Whatever informalities or errors of pro-
ceeding may have been had below, yet as the pro-
perty to which the claims apply is still in the custody
of the law, and the whole case in relation to it is now
before this court, all these errors and irregularities
will be so corrected, as to make the final decision of
the controversy, and disposition of the
and disposition of the property, con-
form to the rights of the parties litigant. Whether the
district court, in August, 1814, did or did not condemn
this part of the cargo; whether it did or did not de-
cree that farther proof should be heard in relation to
it; yet if it ought not to have been condemned-if
farther proof ought to have been received in relation
to it-this court will receive such farther proof.
2. But, it is contended, that whatever might have
been the meaning of the sentence of the district court
of August, 1814, affirmed in the circuit court in May,
1815, it ought to have condemned the goods in ques-
tion, and not to have let in the claimants to farther
proof. And this position is founded on the assertion
that the bills of lading, No. 108, 109, 141, 122, and
118, furnish no evidence whatever of proprietary in-
terest in the consignees, and on the apprehension
that the admission of farther proof in cases so cir-
cumstanced might destroy all security for belligerent
VOL. III.
6

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