392-396 404b 44 629 498 448-452 632 500 456-460 502 465-467| 392 United States v. Amedy 638 502 467-468 United States v. Ortega 671 521 469 503 522 Book & 517 499 452-456| 518 519 501 460-465| 520 521 489 426-428 487 419-421 United States v. Tappan 646 509 490 429-430 Chace v. Vasquez 491 66 430 492 431-433 Mills v. Bank of United REPORTS OF THE DECISIONS OF THE Supreme Court of the United States. FEBRUARY TERM, 1826. In admiralty proceedings, amendments are made in the Appellate Court, not only as to form, but as to matter of substance, as by the filing a new count to the libel: the parties being permitted, whenever public justice and the substantial merits require it, to introduce new allegations and new proofs; non allegata allegare, et non probata probare. If the amendment is made in the Circuit Court, the cause is heard and adjudicated by that court, and (upon appeal) by this court on the new allegation; but if the amendment is allowed by this court, the cause is remanded to the Circuit Court, with directions to permit the amendment to be made. An attack made upon a vessel of the United States, by an armed vessel, with the avowed intention of repelling the approach of the former, or of crippling or destroying her, upon a mistaken suposition that she was a piratical cruiser, and without a piratical or felonious intent, or for the purpose of wanton plunder, or malicious destrucHon of property, is not a piratical aggression un. der the act of the 3d of March, 1819, c. 75. Nor is an armed vessel, captured under such circumstances, liable to confiscation as for a hostile aggression, under the general law of nations. 2'] The act extends to foreign vessels committing a piratical aggression; and whatever responsibility the nation may incur towards foreign states, by executing its provisions, the tribunals of the United States are bound to carry them into effect. Pirates may be lawfully captured by the public or private ships of any nation, in peace or in war; for they are hostes humani generis. American ships offending against our own laws, may be seized upon the ocean, and foreign ships thus offending within our territorial jurisdiction, may be pursued and seized upon the ocean, and brought into our ports for adjudication. But, in such cases, the party seizes at his peril, and is liable to costs and damages if he fails to establish the forfeiture. Ships of war sailing under the authority of 1.-Which provides (sec. 1) that the president, of the United States be authorized and requested to employ so many of the public 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 their government, in time of peace, have a right to approach other vessels at sea for the purpose of ascertaining their real characters, so far as the same can be done without the exercise of the right of visitation and search, which does not exist in time of peace. No vessel is bound to await the approach of armed ships under such circumstances; but such essel cannot lawfully prevent their approach by Je use of force, upon the mere suspicion of danr Where an aggression was committed by a foreign armed merchant vessel, on a public armed ship of the United States, under these circumstances, and a combat ensued upon mutual misapprehension and mistake, the commander of the public ship was held exempt from costs and damages for subduing, seizing, and bringing into a port of this country for adjudication, the offendug vessel. APPEAL from the Circuit Court of Massa The original libel filed in the District Court against the Portuguese ship Marianna Flora, and cargo, was for an alleged piratical aggression attempted or committed by the ship on the United States armed schooner Alligator, Lieutenant Stockton, commander, against the act of Congress of the 3d of March, 1819, c. 75, entitled, "An act to protect the commerce of the United States, and punish the crime of piracy." 1 *Upon the hearing of the cause in the [*8 District Court, the judge pronounced an interlocutory sentence of restitution, and subsequently pronounced a further decree for damages, amounting to $19,675, for the act of sending in the ship for adjudication, and the consequent detention. An appeal was taken by the libelants 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 libelants, the ship and cargo were restored to the elaimants, and further proceedings re- [*4 specting the same were abandoned. The only 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, etc., 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. question, therefore, litigated in the Circuit | ed States, on account of this, which he deemed Court, was upon the point of damages, and, a piratical aggression. She was accordingly ultimately, a decree was there pronounced re- manned and sent, with her officers and crew, versing the decree for damages; and this con- under the orders of Lieutenant Abbot, into stituted the matter of the present appeal. Boston. Pending the proceedings in the Circuit Court, Mr. J. Knapp, for the appellants, argued (1) leave was granted to the libelants to file a new upon the facts, to show that the visitation of count or allegation, in which the aggression the Marianna Flora, and her detention for exwas stated to be hostile, and with intent to amination and search, were unlawful and unsink and destroy the Alligator, and in violation | justifiable. He insisted that the Portuguese of the law of nations. 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.1 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, recognizes such manœuvres as were used by the Marianna Flora, as coming within the legitimate acts of defensive resistance. He says, "defense 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 character of [*7 unblamable defense, and the time when forcible resistance may lawfully begin, and the extent to which it may be carried, particularly 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 situa tion 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 self-protection, 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 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 de scried by each other on the ocean, at the distance of about nine miles, the Alligator being on a cruise 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 5*] and *hove to, having at this time a vane or flag on her mast, somewhat below the head, which, together with her other manœuvres, induced Lieutenant Stockton to suppose she was in distress, or wished for information. Ac cordingly, 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 ap pearance and equipments of an armed vessel. Lieutenant Stockton in mediately hoisted the United States flag and pendant. The Mari-infested with pirates, to suffer another armed anna 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 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 6] other officers, was, that they did not know him to be an American ship of war, but took him to be a piratical cruiser. Under these circumstances. without much examination of the papers, or the voyage of the ship, Lieutenant Stockton determined to send her into the Unit 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 of the innocence of the Portu- [*8 guese ship, and her consequent immediate liberation. As, in this case, simple reparation only was sought, and not vindictive damages, it was considered sufficient to refer to the case of The Apollon, where it was laid down by this court, that, except in cases of captures jure belli, or on exemption expressly created 1 2 2, 1.-2 Azuni, 203; 2 Wheat. Rep. Appendix, 10; Code des Prises par Le Beau, 223. 2. Puffend. 1. 2, c. 3, sec. 8; 2 Rutherf. 493; Azuni, 207. 3.-6 East's Rep. 202. 4.-1 Rutherf. 372-377, 398, 180; Puffend. L c. 5, s. 6, 8. 5.-2 Azuni, 205; 1 Mason's Rep. 24: The George. by statute, even probable cause will not excuse | admits that Captain Stockton was not liable 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 adjudication 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 reason **] to doubt the true character of the Port uguese vessel, and the innocence of her conduct. But, at all events, the misconduct of the master, supposing 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 offense 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 10*] definition, it is not warranted by the law of nations, and cannot give jurisdiction to the tribunals of this country over 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 1.-9 Wheat. Rep. 374. 2-2 Cranch's Rep. 64, 170; 8 Cranch's Rep. 458. 3.-Wheat. on Capt. 312; App. Croke. Reply to Schlegal, 62; 2 Azuni, 212; 1 Dall. Rep. 183; 2 Wheat. Rep. 333, The Anna Maria. 4.-2 Bro. Civ. & Adm. Law, 210; 5 Rob. 40; The St. Juan Baptista, 4 Rob. 58: The Zee Star, 8 Dall. Rep. 333; 2 Wheat. Rep. App. 12. 5.-2 Woodes. 140; 2 Azun!, 351; Bynk. Q. J. Pub. Duponceau's transl. 127, note: 2 Bro. Civ. Adm. Law, 462: 1 Sir L. Jenkins' Life, etc. 91; 5 Wheat. Rep. 181; 8 Wheat. Rep. 641. 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 encounter, 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 [11 of hostility, or warrant the use of force to prevent it. As the ocean is the common property of all nations, every nation has a right to 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 cruise 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 weathergage for the purposes of annoyance; and, in either case, it was the duty *of Captain [*18 Stockton to change his course, and overhaul the Portuguese ship. But the circumstance of the hostile guns which were soon afterwards 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 recounter, 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 |