1822.

Blunt's Lessee

V.

Smith,

sential, it is said, to specialty, and a call for Sumner's line is not good, unless Sumner's survey was notorious.

If this proposition be correct, if notoriety as well as identity be essential to the validity of an entry in Tennessee as it is in Kentucky, then Gee's entry cannot be sustained. But the law of Tennessee is, in this respect, entirely different from that of Kentucky. The act of Virginia, which is the land law of Kentucky, requires, that entries shall be so special and certain that any subsequent locater may know how to appropriate the adjacent residuum. The land law of North Carolina, which is the law of Tennessee, contains no such provision. The lawyers of Kentucky have made some attempts to transplant into Tennessee the principles which had grown in Kentucky; but their attempts were unsuccessful. The books are full of cases in which it is expressly decided that notoriety is not essential to the validity of an entry. In the case of Philip's Lessee v. Robertson, (2 Tenn. Rep. 399.) the whole subject is reviewed. Judge Overton takes a very comprehensive view of the doctrines growing out of the land laws of North Carolina, and shows conclusively that they do not require, and had never been understood in Tennessee to require notoriety, as essential to the validity of an entry. His opinion in this case has, we are informed, been confirmed by the other judges of their Supreme Court.

up

If notoriety be not necessary to Gee's entry, it is special according to the laws of Tennessee, and ought to hold the land it covers against any subsequent sur

vey made of an entry which had been previously surveyed. The judge was correct in saying that such subsequent survey must be considered as if made on a removed warrant.

Judgment affirmed with costs.

1822.

The Santissima

Trinidad.

r

(PRIZE.)

The SANTISSIMA TRINIDAD, and the ST. AN DE

The commission of a public ship of a foreign state, signed by the proper
authorities, is conclusive evidence of her national character.
During the existence of the civil war between Spain and her Colonies,
and previous to the acknowledgment of the independence of the lat-
ter by the United States, the colonies were deemed by us bellige
rent nations, and entitled, so far as concerns us, to all the so-
vereign rights of war, against their enemy.
How far, and under what circumstances, the evidence of witnesses, who
concur in proof of a material fact, but whose testimony is in other
respects contradictory, ought to be credited in respect to that fact.
The sending of armed vessels, or of munitions of war, from a neutral
country to a belligerent port, for sale as articles of commerce, is un-
lawful only as it subjects the property to confiscation on capture by
the other belligerent.

No neutral state is bound to prohibit the exportation of contraband
articles, and the United States have not prohibited it.

In the case of an illegal augmentation of the force of a belligerent cruizer in our ports by enlisting men, the onus probandi is thrown on him to show, that the persons enlisted were subjects of the belligerent state, or belonging to its service, and then transiently within the U.S.

The 6th article of the Spanish treaty of 1795, applies exclusively to the protection and defence of Spanish ships within our territorial ju

1822.

The Santissima Trinidad.

risdiction, and provides only for their restitution, when captured within the same.

The 4th article of the same treaty, which proibits the citizens or subjects of the respective contracting parties from taking commissions, &c. to cruize against the other under the penalty of being considered as pirates, is confined to private armed vessels, and does not extend to public ships.

Quere, Whether a citizen of the United States, independently of any le-
gislative acton the subject, can throw off his allegiance to his native
country?

However this may be, it can never be done without a bona fide change
of domicil, nor for fraudulent purposes, nor to justify the commission
of a crime against the country, or any violation of its laws.
An augmentation of force, or illegal outfit, does not affect any capture
made after the original cruize, for which such augmentation or out-
fit was made, is terminated.

But as to captures made during the same cruize, the uniform doctrine of
this Court has been, that they are infected with the character of torts,
and that the original owner is entitled to restitution, when the proper-
ty is brought into our jurisdiction.

This doctrine extends to captures by public, as well as private armed
ships.

Case of the Cassius, 3 Dall. Rep. 121. commented on, and confirmed.
Case of the Exchange, 7 Cranch, 116. distinguished from the present

case.

The exemption of foreign public ships, coming into our waters, under an express or implied license, from the local jurisdiction, does not extend to their prize ships or goods, captured in violation of our neutrality.

APPEAL from the Circuit Court of Virginia.

This was a libel filed by the consul of Spain, in the District Court of Virginia, in April, 1817, against eighty nine bales of cochineal, two bales of jalap, and one box of vanilla, originally constituting part of the cargoes of the Spanish ships Santissima Trinidad and St. Ander, and alleged, to be unlawfully and piratically taken out of those vessels on the high seas by a squadron consisting of two armed vessels called

1822.

The

Trinidad.

the Independencia del Sud and the Altravida, and manned and commanded by persons assuming themselves to be citizens of the United Provinces of the Santissima Rio de la Plata. The libel was filed, in behalf of the original Spanish owners, by Don Pablo Chacon, consul of his Catholic Majesty for the port of Norfolk ; and as amended, it insisted upon restitution principally for three reasons: (1.) That the commanders of the capturing vessels, the Independencia and the Altravida, were native citizens of the United States, and were prohibited by our treaty with Spain of 1795, from taking commissions to cruize against that power. (2.) That the said capturing vessels were owned in the United States, and were originally equipped, fitted cut, armed and manned in the United States, contrary to law. (3.) That their force and armament had been illegally augmented within the United States.

A claim and answer was given in by James Chaytor, styling himself Don Diego Chaytor, in which he asserted that he was commander of the Independencia, that she was a public armed vessel belonging to the government of the United Provinces of Rio de la Plata, and that he was duly commissioned as her commander; that open war existed between those Provinces and Spain; that the property in question was captured by him, as prize of war, on the high seas, and taken out of the Spanish ships the Santissima Trinidad and the St. Ander, and put on board of the Independencia; and that he, afterwards, in March, 1817, came into the port of Norfolk with his capturing ship, where she was received

1922.

The

Trinidad.

and acknowledged as a public ship of war, and the captured property, with the approbation and consent Santissima of the government of the United States, was there landed for safe keeping in the custom house store. The claimant admitted that he was a native citizen of the United States, and that his wife and family have constantly resided at Baltimore; but alleged, that in May, 1816, at the city of Buenos Ayres, he accepted a commission under the government of the United Provinces, and then and there expatriated himself by the only means in his power, viz. a formal notification of the fact to the United States consul at that place. He denied that the capturing vessel, the Independencia, was owned in the United States, or that she was fitted out, equipped, or armed, or her force augmented, in the ports of the United States, contrary to law. He denied, also, that the Altrávida was owned in the United States, or that she was armed, equipped, or fitted out in the United States, contrary to law; or that she aided in the capture of the property in question. He further asserted, that the captured property had been libelled and duly condemned as prize in the tribunal of prizes of the United Provinces, at Buenos Ayres, on the 6th of February, 1818. He denied the illegal enlistment of his crew in the United States; but admitted that several persons there entered themselves on board as seamen in December, 1816, representing themselves to be, and being, as he supposed, citizens of the United Provinces, or in their service, and then transiently in the United States; and that he refused to receive citizens of this country, and