APPEAL from the Circuit Court of South Carolina.
This was an allegation filed in the District Court of South Carolina by the Vice Consul of his Catholic Majesty, claiming restitution of the ship La Conception and cargo, as the property of Spanish subjects to him unknown, which had been illegally captured by the armed ship La Union, sailing under the flag of Buenos Ayres, and pretending to have a commission or letter of marque from that government, but actually built, equipped, armed, and manned in the United States. A claim was interposed by one Brown, claiming the property as having been taken by him, as commander of La Union, on the high seas, under a commission from the government of Buenos Ayres, authorizing him to capture the property of the subjects of Spain. The District and Circuit Courts decreed restitution of the property to the captors, no sufficient evidence being produced of the capturing vessel having been equipped, or having augmented her force in the ports of the United States. On appeal to this Court, farther proof was taken, showing conclusively, that the capturing vessel was originally built, owned, and equipped in this country, and after proceeding to Buenos Ayres, and sailing from that port on a cruize, had touched at the port of New-Orleans, and there illegally augmented her force, since which, the capture in question was made. This evidence was attempted to be repelled on the part of the captors, by testimony tending to show a transfer of the capturing vessel at Buenos Ayres to domiciled subjects of that country, and that the subsequent augmentation of her force at New-Orleans, if any, was very trifling, and only amounted to a replacement of her former equipment.
The Attorney-General, and Mr. Hopkinson, for the appellant and claimant, the Spanish Consul, argued, that the original owners were entitled to restitution, according to the uniform series of decisions in this Court, upon the ground that the capturing ship was built and equipped in the United States, with the intention of cruizing against the subjects of Spain, in violation of our neutrality, and actually belonged to citizens of the United States, when the present capture was made; or had illegally augmented her force in our ports, previous to the capture.a That the pretended transfer at Buenos Ayres was evidently colourable, and was not proved by the production of the bill of sale, or any of the other documentary evidence usually expected by maritime Courts, to establish a change of this species of property. That the enlistment of additional seamen to the crew at New-Orleans, being proved, the onus was thrown back upon the captors, to show that the persons so enlisted were subjects of Buenos Ayres, transiently within the United States.b
Mr. Winder, contra, insisted, that it must be a clear case of the violation of our neutral rights, or the Court would not interfere to restore a capture made under a commission from a sovereign state, and that the onus probandi for this purpose was on the Spanish claimant.c We have an unquestionable right to build ships for sale, and to export any kind of contraband subject to the risk of capture: And even if a ship be expressly built for war, it may be sold to a belligerent, and afterwards equipped in his own ports to cruise against his enemy.d Here the purchaser was actually domiciled at Buenos Ayres, and there is nothing to impeach the bona fides of the transaction. He then sailed again from Buenos Ayres on a cruize, and the alleged augmentation of the crew at New-Orleans was, in effect, nothing but a replacement of the original force, the vessel having lost by desertion nearly the same number of men which she acquired by enlistment. Such a replacement, this Court has already determined not to afford a ground for restitution.e It is true, that the case cited was under the French treaty of 1778. But the 19th article of that treaty provides nothing more than a right of asylum and hospitality, the same as is enjoyed by the South American cruizers in our ports, under the President's instructions.
The counsel on both sides also argued on the same grounds which are stated in the case of the Bello Corrunes, ante, p. 155. and which it is not thought necessary to repeat.
Mr. Justice STORY delivered the opinion of the Court.