(PRIZE.)

#### *The Rugen.*— Buhring, *Claimant.*

A question of proprietary interest, and of trading witli the enemy.

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. Buhfing, 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 Sisters a as to the proprietary interest, and argued, that the regularity of the pápérs • is *prima facie*evidence of neutrality,, and conclusive, unless rebutted by contradictory proof. The primi*63tire 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 yessel 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

*64case, 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 an’eutral., and the former master continued: but here the ejtizen 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 ail 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 cáse would alone be sufficient to justify condemnation. *65Spoliation 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 jides,*it iá conclusive. Much of the evidence in the pase, according to the, striqt 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 befpré the court of admiralty as an Instance Court; an. equitable title, conflicting with a legal, and there' being no *constat*of property, the court, accsrding to the notions which prevail m 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. 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 *66awarded to the captors, it being a fraudulent casé, and the property delivered to the appellant upon bail.

*Charleton,*for the appellant and claimant, jn 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 Neptunris, 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.

**5 *Rob.*141.

**1 *Rob.*104. The Wclvaart.

**1 *Rob.*139. The Vrouw. 3 *Rob.*147. The Flora and Commercium. 4 *Rob.*16S. The Convenientia. *Ib.*87. The Caroline.

**1 *Rob.*208.

1 *Rob.*217.. The Odin.

**6*Rob. 71.*The Omnibus’. 4 *Rob.*26. The Jenny.

Livingston, J.,.

delivered the opinión of the court.

It has been contended, that this vessel and, cargo were *bom 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 sen- ' tences below were erroneous, and ought to be reversed. To entitle himself to such reversal, the claimant has undertaken to show, arid insists that he has shown, that at the time of, arid 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 ife, a subject of the king of Sweden, with whom the United States were at peace.

The court will now proceed to inquire how %■ Mr. *67Buhring has succeeded in establishing the facts on which he relies for a restitution of this property, fn pursuing this inquiry, it may become unnecessary to decide whether the papers which wére on. board were sufficient to entitle the Rugen to'fhe 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 nob be pretended that belligerent' rights can be eluded in this way; or that the subject of a state at war can, urder 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 then! 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. Sámuel 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 transac*68tion have acted either fraudulently, or contrary to their known duty as good citizens; Such is the düty now imposed on the eourt.

't’he 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 couhtiy* dr 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 á fáir proceeding, no attempt of: the kind has been made, or if it has, it has terminated in establishing that Mi, 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 *69first time, introduced to the notice of the mercantile world by the Messrs. Howards, who appear hr be merchants oí considerable property and credit, résiding.at Sávannah, 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 wé find him engaged m tb com cetns 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. Q. 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 ftmds. 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 fie actually gave two notes, amounting, together, to about 4,3.00. dollars, for the Rugen and her cargo,, in the month óf May, 1813, payable in four'months after date; that these notes, ás 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 *70well be doubted; but it admits of no doubt, that they were discharged with the proper moneys of the Messrs. Howards, wh’di, had almost the moment before been drawn, by one of them, out of the bank, and put into the hands of Mi1. 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 hé 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 hot appear that he had instructions or funds of Mr. Buhring for the purpose. It is true, that with a caution-that was very excusable, consider-*71i'ng ihe 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 mto the possession of Mr. Buhring, but carefully retained by the Messrs. Howards, they executing to him one in their own names, although they no*w 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, blit 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 any reluctance at placing themselves under his command, we know not; nor 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 *72the island of Jamaica. The court is not at all satis» fied with the excuses which have been made for her going there. It does not appear that a *vis major*of any kind existed. She was neither forced in by adverse . winds, nor was shé under any restraint from capture. - When within only four leagues of the island she whs 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 hé endorse any of her papers; nor,did he keep, company with her: and yet we find her. doing exactly vhat 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 áhy 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 *Wan*
      *73
      *schopi*which had sailed from Savannah but a little before the Rügen." On board qf that vessel we find Mr. *William*Buhring, a brother qf the claimant, and ■we have every reason tq' 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 .affect of chance alone, she' also gets out’of her course, falls in with the same British vessel of war which afterwards board-., éd 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 twoVessels is managed by the same house in Kingston, and tl)e 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 j it would be superfluous to inquire . whether the Rugen’s going to Jamaica were voluntary, or by coercion, a subject, of Sweden ha.ving,; for aught that appears', as good right to trade there as at Carthagéna. 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 oür dnaniiñous 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 haying already expressed" its opinion, that this, vessel and cargo did not belong to'the *74claimant, but to citizens of the United States,, the latter having been purchased at Kingston, as is beliéyed, 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 unnecessaryfor 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 JCJnited 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.

*1 Rob.*111. 1.31. The Two Brothers.

**A neutral subject domiciled in the belligerant state, is considered as a merchant of that country, go 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.