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Upon the hearing of the cause in the District 1826. Court, the Judge pronounced an interlocutory The Marian. sentence of restitution, and subsequently pro- na Flora. nounced a further decree for damages, amounting to 19,675 dollars, for the act of sending in the ship for adjudication, and the consequent detention. An appeal was taken by the libellants from both decrees to the Circuit Court; and, afterwards, before the hearing of the appeal, by request of the government of the United States, and with the consent of the libellants, the ship and cargo were restored to the claimants, and fur
armed vessels as in his judgment the service may require, with suitable instructions to the commanders thereof, in protecting the merchant vessels of the United States, and their crews, from piratical aggressions and depredations. (Sec. 2.) The President of the United States is authorized to instruct the commanders of the public armed vessels of the United States, to subdue, seize, take, and send into any port of the United States, any armed vessel or boat, or any vessel or boat, the crew whereof shall be armed, and which shall have attempted or committed any piratical aggression, search, restraint, depredation, or seizure, upon any vessel of the United States, or of the citizens thereof, or upon any other vessel; and also to retake any vessel of the United States, or its citizens, which may have been unlawfully captured upon the high seas. (Sec. 3.) Authorizes the merchant vessels of the United States to defend themselves against any piratical aggressions, &c. and to capture the assailant. (Sec. 4.) Whenever any vessel or boat, from which any piratical aggression, search, restraint, depredation, or seizure, shall have been first attempted or made, shall be captured and brought into any port of the United States, the same shall and may be adjudged and condemned to their use, and that of the captors, after due process and trial, in any Court having admiralty jurisdiction, and which shall be holden for the district into which such captured vessel shall be brought; and the same Court shall thereupon order a sale and distribution thereof accordingly, and at their discretion.
1826. ther proceedings respecting the same were aban
doned. The only question, therefore, litigated The Marianna Flora. in the Circuit Court, was upon the point of da
mages, and, ultimately, a decree was there pronounced reversing the decree for damages; and this constituted the matter of the present appeal.
Pending the proceedings in the Circuit Court, leave was granted to the libellants to file a new count or allegation, in which the aggression was stated to be hostile, and with intent to sink and destroy the Alligator, and in violation of the law of nations.
The facts which were given in evidence, and relied on to support the allegations in the libel, were substantially as follows: On the morning of the 5th of November, 1821, the Alligator and the Marianna Flora, were mutually descried by each other on the ocean, at the distance of about nine miles, the Alligator being on a cruize against pirates and slave traders, under the instructions of the President, and the Portuguese vessel being bound on a voyage from Bahia to Lisbon, with a valuable cargo on board. The two vessels were then steering on courses nearly at right angles with each other, the Marianna Flora being under the lee bow of the Alligator. A squall soon afterwards came on, which occasioned an obscuration for some time. Upon the clearing up of the weather, it appeared that the Marianna Flora had crossed the point of intersection of the courses of the two vessels, and was about four miles distant on the weather bow of the Alligator. Soon afterwards she shortened sail and
hove to, having at this time a vane or flag on her 1826.
hom mast, somewhat below the head, which, together The Mari with her other manœuvres, induced Lieutenant na Flora. Stockton to suppose she was in distress, or wished for information. Accordingly, he deemed it his duty, upon this apparent invitation, to approach her, and immediately changed his course towards her. When the Alligator was within long shot of the Portuguese ship, the latter fired a cannon shot ahead of the Alligator, and exhibited the appearance and equipments of an armed vessel. Lieutenant Stockton immediately hoisted the United States' flag and pendant. The Marianna Flora then fired two more guns, one loaded with grape, which fell short, the other loaded with round shot, which passed over and beyond the Alligator. This conduct induced Lieutenant Stockton to believe the ship to be a piratical or a slave vessel, and he directed his own guns to be fired in return; but as they were only carronades, they did not reach her. The Alligator continued to approach, and the Marianna Flora continued firing at her at times, until she came within musket shot, and then a broadside from the Alligator produced such intimidation that the Portuguese ship almost immediately ceased firing. At that time, and not before, the Portuguese ship hoisted her national flag. Lieutenant Stockton ordered the ship to surrender, and send her boat on board, which was accordingly done. He demanded an explanation ; and the statement made to him by the Portuguese master, and other officers, was, that they did not
1826. know him to be an American ship of war, but The Marian."
took him to be a piratical cruizer. Under these na Flora. circumstances, without much examination of the
papers, or the voyage of the ship, Lieutenant Stockton determined to send her into the United States, on account of this, which he deemed a piratical aggression. She was, accordingly, manned, and sent, with her officers and crew, under the orders of Lieutenant Abbot, into Boston.
Feb. 20th. Mr. J. Knapp, for the appellants, argued,
(1) upon the facts, to show that the visitation of the Marianna Flora, and her detention for examination and search, were unlawful and unjustifiable. He insisted, that the Portuguese master was deceived by the omission of the Alligator to affirm her flag with a gun, according to the law and usage of the nations on the European continent. He had a lawful right to resist the approach of the other vessel, until assured, beyond all reasonable doubt, of her true national character. A remark of Lord Ellenborough, in an analogous case, recognises such maneuvres as were used by the Marianna Flora, as coming within the legitimate acts of defensive resistance. He says, “ defence might happen in various ways, as by making a show of confidence in the face of an enemy, with a view to deter him from an attack." Upon the topics of the nature or
a 2 Azuni, 203. 2 Wheat. Rep. Appendix, 10. 1 Code des Prises, par Le Beau, 223.
6 Puffend. l. 2. c. 3. sec. 8. 2 Rutherf. 493. 2 Azuni, 207. c 6 East's Rep. 202.
character of unblameable defence, and the time 1826. when forcible resistance may lawfully begin, and, the extent to which it may be carried, particularly na Flora. between persons belonging to different civil societies, or between vessels of different nations, on the ocean, authorities were cited from various text writers, as applicable to the situation of the Portuguese master, and justifying his conduct.“ It was asked, if it be lawful for private ships to arm, in time of peace, for the purposes of selfprotection, whether that liberty did not comprehend the right to do with force whatever, under existing circumstances of apparent peril, human instinct and natural prudence would dictate ? Could the maxim that we must so use what belongs to us as not to infringe the rights of others, be inconsistent with this principle ? Could it be the duty of the master of a merchant vessel armed for such a purpose, when his nation was at peace with all the world, and when the seas were infested with pirates, to suffer another armed vessel to approach him without first being satisfied of her pacific intentions ? Still less was it his duty to submit to the exercise of the right of visitation and search, (a right which has no existence in time of peace,) in the unlawful manner in which it was attempted to be exercised.
2. It was insisted, that if the search and examination had been made in a lawful and deliberate manner, it must have resulted in a conviction
a i Ruther. 372–377. 398. 180. Puffend. I. 2. c. 5. $ 6. 8. 6 2 Azuni, 205. 1 Mason's Rep. 24. The George.