The Marian This doctrine has reference to the condition of 1826. man in a state of nature; and such was the condition of the parties now before the Court, when na Flora. upon the ocean, and waging war with each other. The vindices injuriarum were not there, and each party became of necessity his own avenger and judge. As to the Alligator not firing a gun in affirmance of her flag, it cannot surely be pretended that such an idle ceremony could give any additional assurance that she was what she pretended to be, or that the general law of maritime states requires any such ceremony. It may be the particular usage of Spain and Portugal, and it may have been adopted between some other nations as a part of the conventional law; but it has reference exclusively to a state of war, and is a mere regulation of the exercise of the belligerant right of visitation and search. Still less can it be maintained that the Portuguese had reasonable grounds to suspect that the Alligator was a pirate, and had hostile designs upon his ship, and, therefore, he had a right to attack and destroy her. The analogies of the municipal law may assist to illustrate this branch of the inquiry. What degree, or what grounds of fear of bodily harm, will justify an act that may result in the destruction of human life, is, in some cases, a question of great delicacy and difficulty. By the rules of the common law, the rights of the party assailed are confined within very narrow limits. The danger must be manifest, impending, and almost unavoidable. But the writers on natural law may, perhaps, on this The Marian 1826. occasion, be more properly cited; and the following passage from Puffendorf affords the fullna Flora. est illustration of the principles applicable to this subject. "Sometimes," says he, "a doubt has arisen whether, if one assault me, by mistake, without any evil design, but with intent to employ his force against another, I may kill him, in my own defence. Grotius makes this clear in the affirmative. (De J. B. ac P. lib. 11. c. 1. s. 2.) Inasmuch as nature obliges us to maintain peace with others, it may, and ought to be presumed, that every one will fulfil this obligation, unless he give manifest evidence of contrary designs." "But now, (speaking of timely preparations for self-defence,) though my providing thus far for my security can be injurious to none, yet, before I can actually assault another under colour of my own defence, I must have tokens and arguments amounting to a moral certainty that he entertains a grudge against me, and has a full design of doing me a mischief, so that, unless I prevent him, I shall immediately feel his stroke. Among these tokens and signs giving me a right to make a violent assault upon another man, I must by no means reckon his bare superiority to me in strength and power. 'Tis a very gross way of philosophizing which some men have got, when they tell us, by way of advice, He that is able to hurt you, undoubtedly is willing, and, therefore, without further warning, down with him.' This kind of doctrine is manifestly destructive of all social commerce among men, and the authors commonly cited in defence of it, either are such whose character 1826. prevents their authority, or else, in the passages The Marianalleged from them, they speak only of precau- na Flora. tion in our dealing with those who have given us sufficient tokens of their resolution to hurt us.' The application of these principles to the case now in judgment, is too plain to require illustration, and seems to leave no doubt that the respondents are fully justified as to the act of subduing and capturing the appellant's ship. The counsel also commented upon a passage from Albericus Gentilis, which had been relied on by the learned Judge of the District Court as supporting his decree, but which, it was contended, had been misunderstood; and, at all events, was but the opinion of a private individual against the solemn judgment of a Court of justice in a case analogous to that now in discussion." a Puffend. 1. 2. c. 5. s. 6. b Albericus Gentilis, Hispanica Advocationis, c. 27. Albericus Gentilis is justly regarded as one of the founders of the modern law of nations. He was born in the March of Ancona, in the year 1550, and left Italy with his father, an eminent physician, who was obliged to fly from that country on account of his religious opinions. The son afterwards established himself in England, where he obtained a chair of professor of the civil law at Oxford, in 1582, and died at London in 1608. His works are, De Jure Belli, in three books; De Crimina Lesæ Majestatis ; De Nuptiis; Comment. ad. L. 3. Cod. de Professoribus et Medicis; and the work above referred to, Hipanica Advocationis, which is a collection of opinions given by him as the counsel of Spanish claimants in the English Courts of prize, and may be considered as the earliest reports of adjudged cases of maritime law. (Moreri, Dict.) "Albericus Gentilis," says Sir James Mackintosh, แ was certainly the forerunner of Grotius. The opinion enter 1826. The Marianna Flora. 2. The captors were equally justifiable in sending her in for adjudication. It was the exercise tained, at the time, of the difference between them, will be seen in the following words of Zouch, the pupil and successor of Gentilis at Oxford. He chiefly followed Albericus Gentilis, and, Hugo Grotius, of whom the former justifies all his positions by authorities of law, the latter tried his doctrines by the test of reason."" Edinb. Rev. vol. 27. No. 53. art. 9. Nearly all the writers. himself is hardly known Singular mutability of human opinions! cited by Gentilis are now forgotten; he except by name; even Grotius is little read, and, however extensive the effects of his great work on his own age, it is now considered as resting more on the authority of the innumerable writers of every age and nation cited by him, than on original principles, or the deductions of reason. The editor has supposed, that the following translation of the passage from Gentilis, above referred to, would not be unacceptable to the reader. "Concerning an English vessel which fought with a Tuscan, and was taken. "An English ship was captured by a Tuscan, after an engagement, and confiscated. The Florentine Judges state, as the ground of this decree, that the English ship was the aggressor, and that the Florentine acted only in necessary defence. With submission, your honours, I will reply, that your premises are void of probability, your conclusion of truth. For instance; he is presumed the aggressor, who supposed himself injured; in such a case, where it is a question of intention, opinion is sufficient. The Tuscan may have supposed himself injured by the commerce of the English with the Turks. [Therefore, the Tuscan, not the Englishman, was the aggressor.] Again; he is presumed the aggressor who lies in wait, in arms. Such was the case of the Tuscan, who (as appears from what he had done to other vessels of ours) was cruizing for our merchantmen in that trade, Again; he is presumed the aggressor, who is superior in strength. And who does not see the Tuscan vessel of war was stronger than our merchantman? Again; he is presumed the aggressor, who, being armed, is accustomed to conflicts. Does this character also suit the merchantman, or, rather, the cruizer? Finally; he is pre both of a right and a duty. Taking it for grant- 1826. ed, that there was a right to subdue, and to cap- The Marian sumed the aggressor, who, under the circumstances already stated, conquers. And which is he? Why do we ask; the decree of condemnation declares that the Tuscan first fired twice on the Englishman. "Again; did not the Tuscan begin the battle? He is considered as beginning who has provoked to the battle, to hostility; and he is considered principal in the crime, with whom the malice began, and to him, as the aggressor, are justly imputed the consequences. And will those Judges tell me, that it is a practice and sign of amity to fire once and again? It is the custom of a ship of war hailing another vessel, and assuming this authority. The Tuscan vessels practised this at that time, and in other cases. Then, the defence of the English was against a claim of authority, against threats. The object of the Tuscans was to search our ship, as appears from their transactions with others; they came, therefore, to interrupt our navigation, to intercept our commerce, as appears from what they did with others. Deeds declare the intention. The deed of the Tuscans was unlawful, if a huntsman cannot lawfully enter another man's farm without the owner's permission; if it is unlawful to injure an enemy, in a neutral territory, and if territory in this respect differ not from jurisdiction. Neither shall the custom above alluded to (if ever any where so received) be now obtruded upon me as a law of the sea relative to the power of ships of war; for, although the custom may be admitted on the shores of the prince to whom the vessel belongs, it cannot in other seas. Nor let us regard the opinion of those customary jurists, but adhere to those who proceed on general principles. [They teach that] The defence of the English was just, fearing an attack. And the bare preparation of another against one giving me a right to assault and slay him. In fact, I am not obliged to wait till I am assailed. I have a right to commence. This is the opinion more favourable to humanity, and proved from facts on trial, and is also confirmed by all the writers. • We must go to meet the assault, [say they,] not only that which actually exists, but that which may take place.' na Flora. |