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?oyage was illegal, or that a capture made after the 1822. sale was, for that cause alone, invalid. Tbe
The more material consideration is as to the aug- ^tis?^a mentation of her force in the United States, at a sub- Augmenution sequent period. It appears from the evidence, and, 5,e eiiukpeiiindeed, is admitted by Captain Chaytor, that after ports. the sale in May, 1816, the Independencia sailed for Buenos Ayres under his command, on a cruise against Spain; and after visiting the coast of Spain, she put into Baltimore early in the month of October of the same year, having then on board the greater part of her original crew, among whom were many Americans. On her arrival at Baltimore, she was received as a public ship, and there underwent considerable repairs. Her bottom was new coppered, some parts of her hull were recaulked, part of the water-ways were replaced, a new head was put on, some new sails and rigging to a small amount, and a new mainyard was obtained, some bolts were driven into the hull, and the mainmast, which had been shivered by lightning, was taken out, reduced in length, and replaced in its former station. In order to make these repairs, her guns, ammunition and cargo were discharged under the inspection of an officer of the customs, and when the repairs were made, the armament was replaced, and a report made by the proper officer to the collector, that there was no addition to her armament. The Independencia left Baltimore in the latter part of December, 1816, having then on board a crew of 112 men; and about the 8th of January following, she sailed from the Capes of the Chesapeake on the cruise on which
1822. the property in question was captured, being accom<^C^y panied by the Altravida, as a tender, or despatch vesSantissima sel. It will be necessary, hereafter, to make more particular mention of the Altravida; but, for the present, the observations of the Court will be confined to the Independencia. It is admitted by the claimant, that during her stay at Baltimore, several persons were enlisted on board the Independencia, and his own witnesses prove that the number was about thirty.
The first observation that occurs on this part of the case is, that here is a clear augmentation of force within our jurisdiction. The excuse offered is, that the persons so enlisted, represented themselves, or were supposed to be, persons in the service of Buenos Ayres. Of this, however, there is not the slightest proof. The enlistment of men being proved, it is w'the c'uim- incUQibent on the claimant to show that they were
ant, to snow •*
meitali^ "of persons who might lawfully be enlisted; and as the TMn* waTiiw.' burden of proof rests on him, the presumption necessarily arising from the absence of such proof is that they were not of that character. It is not a little remarkable that not a single officer of the Independencia has been examined on this occasion. They are the persons who, from their situation, must have been acquainted with the facts; and the total omission to bring their testimony into the cause can scarcely be accounted for but upon a supposition extremely unfavourable to the innocence of the transaction.
Another observation which is drawn from the predicament of this case is, that if, as the claimant as
1822. any common bond of attachment, or that they had *^y^~' so far lost the common character of seamen as not
Bantissima to be easily led into some other employment or enterprise, which should yield immediate profit. What proof, indeed, is there that the same crew which came to Baltimore sailed again in the lndependencia on her new cruise? It is stated only as hearsay by one or two of the claimant's witnesses, who had no means, and do not pretend to any means of accurate knowledge of the fact. If true, it might have been proved by the officers of the ship, by the muster roll of the crew, and by the shipping articles; and these are wholly withdrawn from the cause, without even an apology for their absence. It would certainly be an unreasonable credulity for the Court, under such circumstances, to believe that the actual augmentation of force was not far greater than what is admitted by the party, and that there was either an innocence of intention or act in the enlistments. The Court is, therefore, driven to the conclusion, that there was an illegal augmentation of the force of the lndependencia in our ports, by a substantial increase of her crew ; and this renders it wholly unnecessary to enter into an investigation of the question, whether there was not also an illegal increase of her armament. , "legal outfit If any doubt could be be entertained as to the Independencia, none can be as to the predicament of the Altravida. This vessel was formerly a privateer, called the Romp, and was condemned for illegal conduct by the District Court of Virginia; and under the decree of the Court, was sold, together with the ar
mament and munitions of war then on board. She 1822. was purchased ostensibly for a Mr. Thomas Taylor, ^^^ but was immediately transferred to Captain Chaytor. Santissima
_, . , _, , . , , Trinidad.
She soon alter wards went toBaltimore,uiid was attach ed as a tender to the Independencia, having no separate commission, but acting under the authority of Captain Chaytor. Part of her armament was mounted, and a crew of about twenty-five men were put on board at Baltimore. She dropped down to the Patuxent a few days before the sailing of the Independencia, and was there joined by the latter, and accompanied her on a cruise in the manner already meutioned. Here, then, is complete evidence from the testimony introduced by the claimant himself of an illegal outfit of the Altravida, and an enlistment of her crew within our waters for the purposes of war. There is no pretence that the crew was transferred to her from the Independencia, for the claimants own witnesses admit that a few only were of this description. The Altravida must be considered as attached to, and constituting a part of the force of the Independencia, and so far as the warlike means of the latter were increased by the purchase, her military force must be deemed to be augmented. Not the slightest evidence is offered of the place or circumstances under which the enlistment of the crew took place. It consisted, according to the strong, language of the testimony, of persons of all nations; and it deserves consideration, that throughout this voluminous record, not a scintilla of evidence exists to show that any person on board of either vessel was a
Vol. VII. 44