APPEAL from the circuit court for the district of Georgia. The Schooner Rugen and cargo were libelled in the district court for that district, as prize of war, either as belonging to the enemies of the United States, or as the property of citizens who had been trading with the enemy. A claim was interposed by Mr. Buhring, a subject of the king of Sweden, on the ground that both vessel and cargo belonged to him, and were, bona fide, neutral property. This claim was rejected by the district court; which sentence was affirmed by the circuit court, and thereupon the claimant appealed to this court.
Charlton, for the appellant and claimant, stated, that the ship was formerly British, had been captured, condemned as prize of war in the district court, and sold by the marshal to one Bixby, who sold to Buhring, the present claimant. 1. He cited the case of the Sistersa as to the proprietary interest, and argued, that the regularity of the papers is prima facie evidence of neutrality, and conclusive, unless rebutted by contradictory proof. The primitive
a 5 Rob. 141. national character of the ship was changed by condemnation, and the sale to a neutral was legal.b Testimony was irregularly admitted, which was neither taken in preparatorio, nor found on board, nor invoked from any other captured vessel. 2. The voyage was strictly within the range of neutral rights. If the neutral character of the ship and cargo was established, the destination was immaterial, whether to an enemy or neutral port. But the ship was, in fact, destined to a neutral port, and diverted from her course by the enemy's vessel La Decouverte. False papers may be used, if not to cover enemy's property, or evade belligerant rights;c and this court is not bound to take notice of, or enforce, the revenue laws of other countries. 3. The property ought to be restored with costs and damages, because the documentary evidence proclaimed the neutral character of the ship and cargo.
b 1 Rob. 104. The Welvaart.
c 1 Rob. 139. The Vrouw.
d 1 Rob. 208. case, confiscation was decreed. The conduct and resources of the claimant were the same as those of Krefting, the Dane. According to the doctrine of Sir William Scott, exercising ownership by the same master is conclusive;e but here the former owner continued to exercise dominion over the thing pretended to be transferred in his own proper person. The ship also continued in her originally intended employment, which was another badge of fraud.f The cases cited were of a transfer by the enemy to a neutral, and the former master continued: but here the citizen wishing to trade with the enemy takes a foreign garb to deceive, not a foreign, but his own government. This case is to be arranged under that branch of public law which depends upon the municipal law of allegiance; and the presumption is more irresistible than in the other, where the property is taken and proceeded against as enemy's property. The vis major, by which it is alleged the ship was compelled to enter an enemy's port on the outward voyage, is not such as would be admitted as an excuse for deviation, even in a fiscal case, or in an action on a policy of insurance. The endorsement of the ship's papers by the enemy's vessel might have produced a certain effect; but in the view of the law of nations, a parol order could have no effect, tending to confiscation in a prize court, or even detention for trial. The falsification and spoliation of papers, in this case would alone be sufficient to justify condemnation.g
e 1 Rob. 217. The Odin.
f 6 Rob. 71. The Omnibus. 4 Rob. 26. The Jenny.
g 1 Rob. 111, 131. The Two Brothers. Spoliation of papers may be explained by the preparatory examinations so as to affect the question of costs only; but here, taken in connexion with the simulated papers, the false destination, and the other circumstances of mala fides, it is conclusive. Much of the evidence in the case, according to the strict regularity of prize practice, is inadmissible; but the proceedings may be considered as equivalent to an order for farther proof. The case of the Sisters was before the court of admiralty as an Instance Court; an equitable title, conflicting with a legal, and there being no constat of property, the court, according to the notions which prevail in England, could not interfere. 2. Supposing the property to be in the claimant, it cannot be restored; he was a resident in the United States, and carried on a trade with the enemy, contrary to the obligations of his temporary allegiance.h And supposing the ship to have been compelled to enter the enemy's port by vis major, the purchase of a return cargo would import confiscation, being a voluntary act of trading with the enemy. Costs and damages ought to be
h A neutral subject domiciled in the belligerant state, is considered as a merchant of that country, so as to render his property taken in trade with the enemy liable to capture and confiscation, in the same manner as that of persons owing permanent allegiance to the state. 3 Rob. 26. The Indian Chief. The converse of the rule is also applied to subjects or citizens of the belligerant state resident in a neutral country, whose trade with the enemy is considered as lawful; except in contraband of war, which is deemed inconsistent with their permanent allegiance, and, it may be added, is equally prohibited to them in their character of neutral merchants. Vide 6 Rob. 408. The Neptunus. awarded to the captors, it being a fraudulent case, and the property delivered to the appellant upon bail.
The Attorney General and Pinkney, for the respondents and captors, stated, that this was one of the plainest cases for condemnation that ever came into a court of prize, upon two grounds:
1st. That the real property was not in the claimant, but in a citizen of the United States.
2d. That it was taken trading with the enemy.
1. In the Odin,d where the papers were complete, and the res gesta similar to the transactions in this
Charleton, for the appellant and claimant, in reply. A national character is impressed by the flag and pass. If the property is neutral, the master had a right to clear out with a false destination, according to the authority of the Neptunus, since it is not usual to clear out from one hostile port to another. The simulated papers were not intended for the purpose, and could not have the effect, of defrauding this country of its rights as a power at war. The destruction of papers was accidental, and the circumstances of the case are not like those of the Odin.
LIVINGSTON, J., delivered the opinion of the court.