Dallas, arguendo, as a general principle of maratime law, that probable cause will justify a marine seizure, is not denied by the opposite counsel, and is impliedly conceded by the Court in its judgment, the whole scope of which goes upon There was a decree of restitution, and the claimants appealed to the Lords for costs and damages; the appeal was rejected, and the claimants condemned to pay the costs of the appeal. In the Catharina Elizabeth, (Acton, 309.) costs and damages were given by the Lords for carrying the captured vessel to an inconvenient port. In the Louis, (2 Dods. 210.) damages were refused by Sir W. Scott, although he held the seizure clearly illegal, it being a case of the first impression. II. The rule on the subject of compelling the captors to proceed to adjudication, where the property is lost in their hands, is, that where the seizure is unjustifiable, the captor is answerable for every loss or damage. In cases of justifiable seizure, he is responsible for due diligence only, and is held to simple restitution in value. The Carolina, (4 Rob. 255.) was a neutral ship which had been employed in carrying French troops to Egypt, aud was taken coming away. Had she been taken in actual delicto, she would have been liable to condemnation. The captors were held exempt, not only from costs and damages, but from restitution in value, the ship having been lost while in their possession by stress of weather. In the William, (6 Rob. 316.) the original seizure was held justifiable, but restitution in value was decreed for a loss occasioned by not taking a pilot on board, but no damages were given. In the Der Mohr, (3 Rob. 129.) the original seizure was considered as justifiable, but the captors were held responsible to make restitution in value (not for costs and damages) on account of the loss of the vessel by the ignorance and wilfulness of the prize master. III. In general, the captors are allowed their expenses and costs on restitution, whenever there is probable cause of capture. The Imina, (3 Rob. 167.) The Principe, (Edw. 70.) The only exceptions to this rule are where there has been some negligence or misconduct on the part of the captors. There are a great number of cases on this head, which it was deemed unnecessary to cite. 1826. The Marian na Flora. The Marian 1826. an inference of fact from the evidence, that there was not probable cause of seizure, showing, that na Flora. if there had been, damages would not have been given. In Little v. Bareme, the Court did not deem it necessary to determine whether the probable cause afforded by the conduct of the captured vessel to suspect her of being an American, would exempt the captors from damages, because it was of opinion that had she been so, the seizure would still not have been warranted by the law. And the case of Maley v. Shattuck," was the application of the ordinary principle of the Prize Court, that if the seizure is without probable cause, the captors are liable to make restitution, with costs and damages, even if the property be lost without their fault; evidently implying, that if there had been probable cause for the original seizure, they would not have been so liable. Mr. Webster, on the same side, entered into a minute examination of the evidence, in order to show that the party, who was in fact the wrong doer, and the aggressor, now appeared before the Court in the character of a plaintiff, seeking redress for a supposed injury done to himself. It had been said, that the owners of the ship, and of the cargo, were not to be held responsible for the misconduct of the master. There were two answers to this objection; (1.) That it was not the captors who were seek a 2 Cranch's Rep. 169. b 3 Cranch's Rep. 458. 1826. The Marian ing to punish the owners, but the owners who were seeking compensation against the captors for the consequences of the misconduct of their na Flora. own agent. (2.) That the universal principle, applied by Courts administering the law of nations, was to consider the thing taken in delicto, as responsible, whether it was the property of the master, or of others. In cases of blockade, of contraband, of carrying enemy's property with false papers, of resistance to visitation and search, he is considered as the agent of the owner both of ship and cargo. So, also, the revenue laws, from the necessity of the case, regard him in that character, and subject the vessel and goods under his control to confiscation for his unlawful acts. In every case, until the innocent are separated from the guilty, until examination and regular adjudication can be had, the law is compelled to regard the ship, and every thing on board, as belonging to the master. It had also been contended, that though the original seizure might be justifiable, the captors were liable in costs and damages for not releasing the vessel after she was subdued and seized. But it was not pretended that Captain Stockton had authority to punish her himself; and, therefore, unless the Portuguese ship had, notwithstanding all that had happened, a clear right to go off with impunity, he had an unquestionable right to send her in for adjudication. If she had a right to pursue her voyage, she would have had the same right if the consequences of her aggression had been ever so calamitous; if she had VOL. XI. 4 1826. crippled the Alligator, and destroyed half her crew. The actual consequences being less sena Flora, rious, do not affect the right, though they may The Marian the exercise of discretion. But we have nothing to do here with the question of military discretion. The captured vessel had made war. She had committed what was, prima facie, a piratical restraint and depredation. If unexplained, it was piracy. Whether it could be satisfactorily explained, or excused, was a question to be decided by the civil tribunals. It was not too much to say, that the captors had here something of a belligerant right. The act of Congress was not a mere municipal law; it was a prize ordinance. The seizure was not a mere municipal seizure. War against pirates existed, and the act was intended to define who should be treated as pirates. And, even if the Court should now be of opinion, that the captured vessel ought not, under all the circumstances, to be sent in, still the question recurs, whether Captain Stockton might not, at that time, have thought otherwise. He was called on, suddenly, to decide and act on a question full of difficulties, and which has occasioned no little embarrassment to the civil tribunals, with all the advantages of a deliberate examination. Even with these advantages, the learned Judges of the Courts below have differed in their judgments upon it; and yet, it is now contended, that this naval commander was bound to be better instructed in the laws than those whose peculiar duty it is to study and expound them. Upon these grounds it was, that Sir W. Scott The Marian na Flora. determined, in the case of the Louis," that it 1826. being a case prima impressionis, the captors were exempt from costs and damages, although the Court was clearly of opinion, that the seizure itself was unjustifiable, a right of search not existing in time of peace. A doubt respecting the true construction of the law, is as reasonable a ground for seizure, as a doubt respecting the fact. But, here was doubt respecting both fact and law, and that doubt is not yet cleared up. The capture was made in repelling what appeared, at the time, to be an act of piratical aggression. It has turned out not to be so, after a judicial examination. But, the question is, what it appeared to be recenti facto. It cannot be maintained, that an habitual course of piratical depredation is necessary to constitute the offence of piracy A single act of piratical aggression, stimulated by revenge, or national prejudice, or wanton cruelty, would be sufficient. The act of Congress evidently supposes it, and is in conformity with the public law. It had also been argued, that this was a municipal seizure, and that the vessel having been restored without a certificate of probable cause, costs and damages followed as a matter of course. But, it was insisted, that municipal seizures are for offences within our own territorial jurisdiction, or by our own citizens elsewhere. Here, the proceedings are under the law of nations ; and, if found guilty, the property would be conb 5 Cranch's Rep. 311. a 2 Dods. Rep. 210. 264. |