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1826. of the innocence of the Portuguese ship, and The Marian
her consequent immediate liberation. As, in na Flora. this case, simple reparation only was sought,
and not vindictive damages, it was considered sufficient to refer to the case of the Appollon, where it was laid down by this Court, that, except in cases of captures jure belli, or on exemption expressly created by statute, even probable cause will not excuse from simple reparation. But, there must, in every case, be probable cause to justify the seizure.
3. But, it was further contended, that the subsequent detention and sending in of the ship for
djudication, was wholly unjustifiable, and subjected the seizor to damages. Even the harsh and unbending rules of prize law render the captors liable to costs and damages whenever the evidence of the neutrality of the ship and cargo exists on board, unless it is afterwards shown to be enemy's property, or to have been guilty of some unneutral conduct, rendering it liable to confiscation. But yet there was a distinction between a right to seize and examine, and a right to capture. The right to detain and send in for adjudication, did not necessarily follow from a seizure and examination, which might have been warranted by the circumstances, but which had not resulted in showing that there was any rea
a 9 Wheat. Rep. 374.
c Wheat. Capt. 312. Appx. Croke. Reply to Schlegal, 62. 2 Azuni, 212. 1 Dall. Rep. 183. 2 Wheat. Rep. 333. The Anna Maria.
son to doubt the true character of the Portuguese 1826. vessel, and the innocence of her conduct. But,
Is The Marianat all events, the misconduct of the master, sup- na Flora. posing it to be ever so aggravated, could not affect the owners of the ship and cargo, whose agent he was, for ordinary civil purposes, but not so as to subject their property to loss or injury by his unlawful acts. And for the losses accruing by the detention of the ship and cargo in port, after it was satisfactorily ascertained that they could not be proceeded against by the seizors, there was still less reason to doubt the right of the claimants to recover damages.
4. The charge that the Portuguese ship had attempted, or committed, a piratical aggression or restraint, within the act of Congress, was considered as negatived by the restitution, with the consent of the captors, in the Court below. Whatever might be the nature or degree of the offence meant to be defined by the act, it must be piratical; and all the authorities define piracy to be a robbery, or forcible depredation on the high seas; and they all concur, that a bare assault, without taking or pillaging something, does not constitute this crime. If the act of Congress goes beyond this definition, it is not war
a 2 Bro. Civ. f Adm. Law, 210. 5 Rob. 40. The St. Juan Baptista. 4 Rob. 58. The Zee Star. 3 Dall. Rep. 333. 2 Wheat. Rep. Appr. 12.
6 2 Woodes. 140. 2 Azuni, 351. Bynk. Q. J. Pub. Duponceau's transl. 127. note. 2 Bro. Civ.& Adm. Law, 462. 1 Sir L. Jenkins' Life, &c. 91. 5 Wheat. Rep. 161. 3 Wheat. Rep. 641.
1826. ranted by the law of nations, and cannot give
jurisdiction to the tribunals of this country over The Marianna Flora. the persons and property of foreigners.
Mr. Blake, for the respondents, made three points :
(1.) The captors were justifiable, under all the circumstances of the case, in subduing and taking possession of the Portuguese ship.
(2.) They were justifiable in sending her in for adjudication.
(3.) There was probable cause of seizure and sending in for adjudication.
1. Even the sentence of the District Court admits that Captain Stockton was not liable to damages for the mere act of subduing and seizing the ship. She had committed a hostile and piratical aggression on a public vessel of the United States in time of peace. The learned counsel here entered into an able and elaborate argument upon the evidence, to show that the first aggression was committed by the Portuguese ship, and that it was not justified or excused by the conduct of the Alligator. It was a predetermined, deliberate, and wanton attack; not an accidental rencounter, nor the result of any mistake. It was an act of private war, and the onus probandi is on the claimant to show that it was authorized by the law of nations. Admitting even that the Alligator pursued the Portuguese vessel, she had an unquestionable right to approach her in time of peace; and an attempt to exercise the right could not be construed into
an act of hostility, or warrant the use of force to 1826. prevent it. As the ocean is the common property of all nations, every nation has a right to na Flora. its free use, and no one can claim the exclusive control of a larger portion than is sufficient for the purposes of its own movements. The regulations as to keeping out of cannon shot, and sending a boat on board, are applicable only to a state of war, and to the exercise of the belligerent right of search, which, it is admitted, does not exist in time of peace. Indeed, these regulations are the creatures of conventional law, and bind those nations only between whom they are established by special treaty. But the Alligator was a public armed ship, belonging to the navy of the United States, and sent out to cruize against pirates and slave traders, under the different acts of Congress passed for the suppression of these offenders. Captain Stockton was authorized by these laws, and his instructions under them, to seize and subdue all vessels and persons offending against them, wherever they might be found. If every vessel on the ocean has a right to draw around her a magic circle, and to prevent by force the approach of all others, it is obvious that the acts of Congress must remain a dead letter, since they could not be executed without approaching sufficiently near to ascertain the probable character of the vessel. The act of heaving to, on the part of the Marianna Flora, indicated either a desire to speak the Alligator, or to get the weather gage for the purposes of annoyance; and, in either case, it was the duty
1826. of Captain Stockton to change his course, and
overhaul the Portuguese ship. But the circumThe Marianna Flora. stance of the hostile guns which were soon af
terwards fired from the Marianna Flora, without hoisting any national flag, made it still more imperatively his duty to approach her; and had he avoided the rencounter, he could not have justified his conduct to his government and his country. He had a right, then, to pursue and capture, founded upon the act of Congress, and his instructions. He was justified in considering the ship as having not only attempted, but as. having actually committed, a piratical restraint and aggression, within the meaning of the act..
But, independent of the authority derived from this statute, he was justified in pursuing and subduing the aggressor, upon the more general grounds of natural and public law. The right of freely navigating the ocean, and of self-defence, of repelling force by force, was common to both vessels. The Alligator was not bound to decline the combat by flight. In the expressive words of Baron Puffendorf,“ in a state of nature, the aggressor hath no right, by which the other party is bound to decline his violence, rather than oppose it; and the reason why a man, under his natural condition, sometimes chooses rather to fly than fight, is not out of any favour to him who sets upon him, but because he thinks it more convenient for his own affairs to fly, like hares, whose armour is in their feet."a
a L. 2. c. 13. s. 14.