The Gran Para/Opinion of the Court

4. With respect to there being no proof as to the seizure of the Gran Para, from which the money libelled is alleged to have been taken, it is presumed that this is altogether immaterial. The libel states the fact of the seizure of the Gran Para, and other Portuguese vessels; the answer expressly admits the taking of the money in controversy, and other money, from Portuguese vessels, and the inquiry is, whether it be the Protuguese property, and if so, whether it were rightfully taken.

Mr. Winder, in reply, insisted that the Court would confine its interference to such cases of illegal eapture, as would make the United States responsible to the injured foreign country, by the law of nations, or to such acts as are in violation of our statutes of neutrality; restraining their operation to such provisions as are required and justified by the public law. He compared this case to the analogous one of carrying contraband. The neutral nation was not responsible. The building of ships for sale was a lawful branch of commerce, and even if they were armed and equipped for war, they could only be considered as contraband; and though they might be subject to the penalty of confiscation, if taken in their transit to a belligerent, yet, if once incorporated into the mass of his military marine, they could be considered by neutrals in no other light than the rest of his naval force. But even supposing the original

Mr. Chief Justice MARSHALL delivered the opinion of the Court, and after stating the facts, proceeded as follows:

The principle is now firmly settled, that prizes, made by vessels which have violated the acts of Congress, that have been enacted for the preservation of the neutrality of the United States, if brought within their territory, shall be restored. The only question therefore is, does this case come within the principle.

That the Irresistible was purchased, and that she sailed out of the port of Baltimore, armed and manned as a vesser of war, for the purpose of being employed as a cruizer against a nation with whom the United States were at peace, is too clear for controversy. That the arms and ammunition were cleared out as cargo cannot vary the case. Nor is it thought to be material that the men were enlisted in form as for a common mercantile voyage. There is nothing resembling a commercial adventure in any part of the transaction. The vessel was constructed for war, and not for commerce. There was no cargo on board but what was adapted to the purposes of war. The crew was too numerous for a merchantman, and was sufficient for a privateer. These circumstances demonstrate the intent with which the Irresistible sailed out of the port of Baltimore.

But she was not commissioned as a privateer, nor did she attempt to act as one, until she reached the river La Plata, when a commission was obtained, and the crew re-enlisted. This Court has never decided, that the offence adheres to the vessel whatever changes may have taken place, and cannot be deposited at the termination of the cruize in preparing for which it was committed; and as the Irresistible made no prize on her passage from Baltimore to the River La Plata, it is contended that her offence was deposited there, and that the Court cannot connect her subsequent cruize with the transactions of Baltimore.

If this were to be admitted in such a case as this, the laws for the preservation of our neutrality would be completely eluded, so far as this enforcement depends on the restitution of prizes made in violation of them. Vessels completely fitted in our ports for military operations, need only sail to a belligerent port, and there, after obtaining a commission, go through the ceremony of discharging and re-enlisting their crew, to become perfectly legitimate cruizers, purified from every taint contracted at the place where all their real force and capacity for annoyance was acquired. This would, indeed, be a fraudulent neutrality, disgraceful to our own government, and of which no nation would be the dupe. It is impossible for a moment to disguise the facts, that the arms and ammunition taken on board the Irresistible at Baltimore, were taken for the purpose of being used on a cruize, and that the men there enlisted, though engaged, in form, as for a commercial voyage, were not so engaged in fact. There was no commercial voyage, and no individual of the crew could believe that there was one. Although there might be no express stipulation to serve on board to Irresistible, after her reaching the La Plata, and obtaining a commission, it must be completely understood that such was to be the fact. For what other purpose could they have undertaken this voyage. Every thing they saw, every thing that was done, spoke a language too plain to be misunderstood.

The act of June, 1794, c. 296. declares, that 'if any person shall, within the territory or jurisdiction of the United States,' 'hire or retain another person to go beyond the limits or jurisdiction of the United States, with intent to be enlisted or entered in the service of any foreign prince or state as a soldier, or as a mariner, or seaman, on board of any vessel of war, letter of marque, or privateer, every person so offending, shall be guilty of a high misdemeanor,' & c.

Now if the crew of the Irresistible were not enlisted in the port of Baltimore, to cruize under the commission afterwards obtained, it cannot, we think, be doubted, but that they were 'hired or retained to go beyond the limits or jurisdiction of the United States, with intent to be enlisted or entered' into that service. For what other purpose were they hired in the port of Baltimore for the voyage to La Plata?

The third section makes it penal for any person, within any of the waters of the United States, to be 'knowingly concerned in the furnishing, fitting out, or arming of any ship or vessel, with intent that such ship or vessel shall be employed in the service of any foreign prince or state, to cruize,' &c.

It is too clear for controversy, that the Irresistible comes within this section of the law also.

The act of 1817, c. 58. adapts the previous laws to the actual situation of the world, by adding to the words, 'of any loreign prince or state,' the words, 'or of any colony, district, or people,' &c. The act of April, 1818, c. 83. re-enacts the acts of 1794, 1797, and 1817, with some additional provisions.

It is, therefore, very clear, that the Irresistible was armed and manned in Baltimore, in violation of the laws and of the neutral obligations of the United States. We do not think that any-circumstances took place in the river La Plata, by force of which this taint was removed. To the objection that there is no proof that any part of the money was taken out of a vessel called the 'Gran Para,' it need only be answered, that the allegation of the libel is, that she was called the 'Gran Para, or by some other name.'

Decree affirmed with costs.