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.
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62, 63
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.
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
b 1 Rob. 104. The Welvaart.
c 1 Rob. 139. The Vrouw.
d 1 Rob. 208.
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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.
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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.
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awarded to the captors, it being a fraudulent case, and the
property delivered to the appellant upon bail.
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.
Feb. 20th.
LIVINGSTON, J., delivered the opinion of the court.
It has been contended, that this vessel and cargo were bona fide
the property of the appellant, a subject of Sweden, who had a right
to trade with the enemy of the United States; and that having done
nothing to forfeit his neutral character, both the sentences below
were erroneous, and ought to be reversed. To entitle himself to
such reversal, the claimant has undertaken to show, and insists
that he has shown, that at the time of, and previous to, the
departure of the Rugen from the United States, she, as well as the
cargo on board, was his property, and that he was then, and still
is, a subject of the king of Sweden, with whom the United States
were at peace.
The court will now proceed to inquire how far Mr.
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Buhring has succeeded in establishing the facts on which he
relies for a restitution of this property. In pursuing this
inquiry, it may become unnecessary to decide whether the papers
which were on board were sufficient to entitle the Rugen to the
privileges or national character of a Swedish vessel; because,
whatever may be their regularity and effect, yet, if the court
shall be of opinion that they were only colourable, and that an
American citizen, and not the claimant, was owner of the vessel and
cargo, it will not be pretended that belligerant rights can be
eluded in this way; or that the subject of a state at war can,
under cover of neutral muniments, however regularly procured, or
formal they may be, violate, with impunity, his duty and allegiance
to his own country. So far from such documents, when intended only
as a cover, affording any protection to the property, they render
the party resorting to them doubly criminal, by the scene of fraud
and perjury which must be waded through in order to obtain them;
and then, in case of disaster, to make a court believe that such
papers disclose nothing but the real truth of the case. The whole
controversy will then be resolved into the single question,
whether, in point of fact, Mr. Buhring, or Messrs. Samuel and
Charles Howard, who are citizens of the United States, were owners
of the Rugen and her cargo at the time of her sailing from
Savannah, and on her return to the United States. It must ever be a
painful task to investigate testimony where a result unfavourable
to the claimant can only proceed from a conviction that the
principal agents in the transaction
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have acted either fraudulently, or contrary to their known duty
as good citizens. Such is the duty now imposed on the court.
The claimant is said to be a Swede. If this be admitted, and it
seems not to be denied, we are compelled, by the very suspicious
circumstances of this case, to look beyond his national character,
and to inquire very particularly into his situation at the time he
embarked, or became connected with this adventure. Had he ever been
a merchant in his own country, or elsewhere? Had he ever resided in
any of our seaports, or carried on business of any kind there, or
in any other place? Had he, at any time, means to purchase this
vessel and cargo; or was he sufficiently known to have acquired a
credit to that extent? These questions were all asked by the
advocate of the captors, to which no satisfactory answer was given
on the argument; and it is in vain that the proceedings are
searched for a solution of either of them at all favourable to the
present claim. On the contrary, easily as every difficulty on these
points might have been dispelled, if this were a fair proceeding,
no attempt of the kind has been made, or if it has, it has
terminated in establishing that Mr. Buhring's situation and
circumstances were such as preclude all reasonable doubt of his
being any other than the ostensible owner of the vessel and cargo.
He was a young man, only twenty-one years old, residing, as well as
his brother William, in South Carolina, with Mr. Scarborough, Vice
Commercial Agent of the king of Sweden, for the state of Georgia.
From this retirement he is drawn, and, for the
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first time, introduced to the notice of the mercantile world by
the Messrs. Howards, who appear to be merchants of considerable
property and credit, residing at Savannah, in the State of Georgia.
Between these gentlemen and Mr. Buhring there could have been but
very little previous acquaintance; for the latter arrived at
Savannah from Europe only two or three months before we find him
engaged in the concerns of the Rugen; and after remaining not more
than three or four days in that city he went to reside in the
country of South Carolina, whence he did not return to Savannah
until he came back with Mr. C. Howard, a very few days before the
Rugen sailed. It is not, then, harsh to presume, that the strongest
and only recommendation of Mr. Buhring was his national character.
The Messrs. Howards appear, at the time, to have been in search of
a Swede, and were not long in meeting with one whose youth and
inexperience well fitted him for the purposes for which, there is
so much reason to believe, he was wanted. A feeble attempt,
however, has been made to show that Mr. Buhring was not without
credit as well as funds. To the former point one witness has been
examined, and to establish that he was not entirely destitute of
property, it has been shown that he actually gave two notes,
amounting, together, to about 4,300 dollars, for the Rugen and her
cargo, in the month of May, 1813, payable in four months after
date; that these notes, as they became due, were taken up by him
with great punctuality at one of the banks in Savannah. Whether
these notes were really made at the time when they bear date,
may
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well be doubted; but it admits of no doubt that they were
discharged with the proper moneys of the Messrs. Howards, which had
almost the moment before been drawn, by one of them, out of the
bank, and put into the hands of Mr. Buhring for that purpose. With
the funds, then, of Mr. Howard, and not with those of Mr. Buhring,
were these notes taken up; and a contrivance, which was intended to
make Mr. Buhring appear as a man of property, has not only
altogether failed, but has added very considerable weight to the
suggestion of the captors, that he was a young man totally
destitute of the means of purchasing and paying for the property
which, it is now alleged, belonged to him. But we now find Mr.
Buhring at Savannah; and what is done with him? or what does he do
with himself, on his arrival there? Does he go about to purchase a
vessel? Does he, when he is told that the Rugen belongs to him,
take any measures to fit her out? Does he provide a crew? Does he
agree for their wages? Does he purchase a cargo? Does he see to its
being put on board? Does he effect insurance? or is he found doing
any one act which might naturally be expected from an owner? All
this trouble had already been most kindly taken off his hands by
his new friend and acquaintance, Mr. Howard. This gentleman had
already (if we are to believe the history of this transaction as it
is narrated by the claimant) provided him with a vessel and cargo,
although it does not appear that he had instructions or funds of
Mr. Buhring for the purpose. It is true, that with a caution that
was very excusable, considering
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the circumstances of Mr. Buhring, the bill of sale which had
been executed by the marshal, with a blank for the name of the
vendee, was not put into the possession of Mr. Buhring, but
carefully retained by the Messrs. Howards, they executing to him
one in their own names, although they now say they never were the
owners of the vessel. And even this bill of sale, it is very
probable, remained in the custody of Mr. Samuel Howard during the
whole of the voyage to Jamaica and back to the United States. Every
thing being now in readiness for their departure from Savannah, Mr.
Buhring appears on board, and is introduced to the mate and crew,
not merely as owner of vessel and cargo, but as master for the
voyage. Whether any surprise were excited on board by the new
character in which the claimant appeared, or whether they expressed
and reluctance at placing themselves under his command, we know
not; not is it a fact very necessary to ascertain, because they
must soon have discovered that Mr. Samuel Howard, whose friendship
for Mr. Buhring seems to have had no limit, and in whose seamanship
they may have had full confidence, intended to go with the vessel,
and relieve Mr. Buhring from the troublesome task, if he were equal
to it, of navigating the Rugen. For this conduct, on the part of
Mr. Howard, no other reasonable motive can be assigned than an
interest in the vessel and cargo. The allegation of his going after
certain funds in Carthagena is not at all made out. The Rugen
leaves Savannah on the 5th or 6th of May, bound, as is alleged, for
Carthagena, but arrives at Kingston, in
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the island of Jamaica. The court is not at all satisfied with
the excuses which have been made for her going there. It does not
appear that a vis major or any kind existed. She was neither forced
in by adverse winds, nor was she under any restraint from capture.
When within only four leagues of the island she was boarded by a
British brig of war called La Decouverte, whose commander ordered
her into Kingston. He put no prize-master on board; nor did he
endorse any of her papers; nor did he keep company with her: and
yet we find her doing exactly what she was verbally directed to do.
It is faintly pretended, that if she had attempted, after that, to
go to Carthagena, she could not have escaped the British cruisers
which swarmed about the island. But what greater danger, if the
property were neutral, would ensue on a capture by any other
British vessel than by her going to a British port as prize to the
Decouverte, or by her orders? It is believed, then, that her going
to Jamaica was voluntary, and formed part of the original plan;
which opinion derives considerable support from the fact of
insurance having been made, not only for Carthagena, but also for a
port in the West Indies; from the nature of the outward cargo; from
the readiness with which they consented to dispose of it at that
place, and procured another for this country promising a much
greater profit than any which at that time could have been imported
from Carthagena. There is yet a still stronger circumstance to
prove that the destination of the Rugen to Carthagena was
fictitious; and that is, her meeting at Kingston a ship called the
Wanschop,
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which had sailed from Savannah but a little before the Rugen. On
board of that vessel we find Mr. William Buhring, a brother of the
claimant, and we have every reason to believe that she belonged,
with her cargo, to the same concern. The Wanschop, it is also said,
was destined for Porto Bello, on the Spanish Main; but by a strange
coincidence of events, which can scarcely have been the effect of
chance alone, she also gets out of her course, falls in with the
same British vessel of war which afterwards boarded the Rugen;
receives the like order to proceed to Kingston, which she also very
promptly, and without any apparent reluctance, complied with. The
business of these two vessels is managed by the same house in
Kingston, and the proceeds of both of their cargoes are invested in
molasses, rum, & c., which composed the return cargo of the
Rugen. If the property claimed were bona fide Swedish, it would be
superfluous to inquire whether the Rugen's going to Jamaica were
voluntary, or by coercion, a subject of Sweden having, for aught
that appears, as good right to trade there as at Carthagena. But if
it belonged to the American gentlemen, who have had an agency so
conspicuous in the whole of this business, (and that it did is our
unanimous opinion,) it will not be pretended that they could go to
Kingston unless by compulsion, or that they had any right during
the late war to purchase and bring a cargo from any British port to
this or any other country.
The court having already expressed its opinion, that this vessel
and cargo did not belong to the
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claimant, but to citizens of the United States, the latter
having been purchased at Kingston, as is believed, with their
funds; it becomes quite unnecessary to inquire what was the real
destination of the Rugen on her leaving Kingston; whether she were
bound, in fact, to Amelia Island, or to the United States; although
it might not be very difficult to come to a satisfactory conclusion
that Hardwicke, in Georgia, was her real port of destination. But
this examination is unnecessary; for the owners, being American
citizens, are equally guilty of trading with the enemy, whether
that trade were carried on between a British port and the United
States, or between such port and any foreign nation; and in the
present case, if the court be correct in the view which it has
taken of the evidence, the offence of trading with the enemy was
complete the moment the Rugen sailed from Savannah with an
intention to carry her cargo to Kingston, in Jamaica. Upon the
whole, without taking notice of many of the arguments urged by the
advocates of the captors in favour of condemnation, and which are
entitled to great consideration, the court is unanimously of
opinion, that the decree of the circuit court, rejecting the claim
of Mr. Buhring, was correct, and must, in all things, be
affirmed.
Sentence affirmed with costs.