APPEAL from the Circuit Court of Maryland.
This was a libel filed in the District Court of Maryland, by the Consul of his Catholic Majesty for the port of Baltimore, in behalf of the Spanish owners of certain goods alleged to have been captured on the high seas, and taken out of the Spanish ship Santa Maria, by the privateer Patriota, illegally armed and equipped in the United States. The evidence in the cause established the fact that the capturing vessel was owned by citizens of this country, and that she was armed, equipped, and fitted out, in violation of the laws and treaties of the United States. But there was some contrariety in the testimony as to the identity of the property, which the claimant, Burke, insisted upon his title to hold as a bona fide purchaser under a condemnation and sale in some prize tribunal at Galveztown. There was also some evidence tending to show that Burke was a part-owner of the capturing vessel. The District Court dismissed the libel, and ordered the property to be restored to the claimant, but this decree was reversed by the Circuit Court, and the cause was brought by appeal to this Court.
Mr. Winder, for the appellant, argued upon the facts, in order to show that there was a defect of evidence of proprietary interest in the Spanish subjects, for whom the claim was given, and that there was no proof that the goods in question were taken out of the Santa Maria, or any other Spanish ship. He therefore insisted that even if there was no proof on the part of the claimant and appellant of a lawful condemnation of the goods as prize, he had a right to stand upon his title as an innocent purchaser, until some better title was shown in others.
Mr. D. Hoffman, for the respondent, argued, (1.) that the evidence in the cause sufficiently established that the privateer Patriota, which plundered the Santa Maria, was owned and equipped in Baltimore. All captures made under the taint of an illegal outfit, or American ownership, have invariably been declared by this Court to be illegal, and the property taken has been restored to the original owners.a
2. All the cases cited were captures jure belli, under the sanction of commissions granted by South American provinces acknowledged by our government to be engaged in a civil war with Spain. In these cases, the Court would have left the captors, and the Courts of their country, in full possession of the res capta, had there been no American ownership, or equipment of the vessel effecting the seizure.b But this will not be the case where there is no commission
The Alerta, 9 Cranch, 359. The Divina Pastora, 4 Wheat Rep. 52. Estrella, 4 Wheat. Rep. 293. Bello Corrunes, 6 Wheat. Rep. 152. La Conception, 6 Wheat. Rep. 235.
Nuestra Scnora, 4 Wheat. Rep. 495. to legalize the capture. In the absence of a commission, every court administering the jus gentium, will regard the taking as tortious at least, and, according to circumstance, piratical. Every violent dispossession on the high seas is prima facie tortious; and a taking as prize does not necessarily render it a capture jure belli.c It lies upon the claimant in this case to show the commission under which the taking is justified; if this be not shown, the Court, in the exercise of its general powers, will restore the property, unless the claimant can establish his right on some other ground. In this case, no commission is produced; but,
The Two Friends, 1 Rob. 283. Hallet v. Novion, 14 Johns. Rep. 90. bona piratorum; that if the purchase was bona fide, the claimant only succeeded to the right of the vendors; a sale, ex vi termini, importing nothing more than a succession of the vendee, in consideration of money, to the rights of the vendor; and, finally, that the title of the claimant cannot be broader or more extensive than that of the pirates themselves, or those to whom they may have sold the property. But all this inquiry is unnecessary, if the proofs in this cause establish that the claimant was the active and principal owner of the Patriota, which seized and plundered the Santa Maria. On this point the circumstantial evidence comes strongly in support of the positive testimony. But there is, in the answer itself, a singular inconsistency, which throws a dark shade of suspicion over the character of this claim. The claimant first denies all knoweldge of the capture of the Santa Maria, and of every fact stated by the Libellant in relation to the Patriota, but subsequently relies on a purchase of this property, by his agent Novion, in regular course of trade, after it had been duly condemned! It was no doubt his intention, at the time of filing his claim, to produce an authenticated record of condemnation, which was subsequently abandoned, no doubt from a knowledge that Aury's commission, (the only one he could venture to produce,) was a nullity, and that the tribunals of prize at Galveztown, were wholly incompetent to adjudicate,d even
The Nueva Anna, 6 Wheat. Rep. 193. if a condemnation of a competent court could avail in such case.
Burke claims to hold this property rightfully as a bona fide purchaser, wholly ignorant of the circumstances stated in the libel. If there were any truth in this defence, in point of fact, it might be well to inquire how far even a bona fide purchaser, in this case, could protect himself by such a purchase. It might be urged that the doctrine of market overt is unknown to the jus gentium; that it is of peculiar and local origin, known only in England, and never recognized in the Courts in this county; that the doctrine a piratis et latronibus capta dominium non mutant, is the received opinion of the most enlightened civilians and publicists; that as no right to the spoil vests in them, no right can be derived from them; that even if the doctrine of market overt were otherwise applicable, it could not obtain, inasmuch as a condemnation is essential, and this could not be of
After this conclusive testimony, establishing the falsity of the claim and answer filed by Burke, need it be asked whether he is a worthy claimant? He is a citizen of the United States, calling on this Court to confirm to him the possession of goods, taken by a vessel fitted out by him in contravention of our laws, neutrality, and solemn treaties: and this, too, not even under the colour of a commission from any power, acknowledged or unacknowledged.
Mr. Harper also argued, upon the same side, on the facts respecting the proprietary interest, and upon the question of law arising from the supposed condemnation at Galveztown. The substance of his argument upon the latter point will be found in the case of the Nereyda, where the same question arose more distinctly, but which was ordered to farther proof, and will be reported in the next volume.
Mr. Justice LIVINGSTON delivered the opinion of the Court, and after stating the case, proceeded as follows: