A question of probable cause of seizure under the Piracy Acts of
3 March, 1819, c. 75, and 15 May, 1820, c. 112.
General rule as to libels
in rem.
How far the strict rules of the common law as to pleading in
criminal cases are applicable to informations
in rem.
How far a previous prosecution
in personam is necessary
to found the proceeding
in rem.
In such a case, although the crew may be protected by a
commission
bona fide received and acted under from the
consequences attaching to the offense of piracy by the general law
of nations, although such commission was irregularly issued, yet if
the defects in the commission be such as, connected with the
insubordination and predatory spirit of the crew, to excite a
justly founded suspicion, it is sufficient under the act of
Congress to justify the captors for bringing in the vessel for
adjudication and to exempt them from costs and damages.
Probable cause of seizure a bar to the claim for damages.
Although probable cause of seizure will not exempt from costs
and damages, in seizures under mere municipal statutes, unless
expressly made a ground of justification by the law itself, this
principle does not extend to captures
jure belli, nor to
marine torts generally, nor to acts of Congress authorizing the
exercise of belligerent rights to a limited extent, such as the
Piracy Acts of 3 March, 1819, c. 75, and 15 May, 1820, c. 112.
An objection to the competency of a witness on the ground of
interest cannot betaken in the Supreme Court on a hearing on the
appeal where the witness had been admitted without objection in the
district and circuit court.
This was a libel of information under the Act of Congress of 3
March, 1819, c. 75, entitled, "An act to protect the commerce of
the United States and punish the crime of piracy," continued in
force by the Act of 15 May, 1820, c. 112. The libel was filed by
the district attorney, as well in behalf of the United States as of
the captors, and alleged that the brig
Palmyra, alias the
Panchita, was a vessel from which a piratical aggression,
search, depredation, restraint, and seizure had been attempted and
made upon the high seas in and upon the schooner
Coquette,
a vessel of the United States, and of the citizens thereof, and in
and upon the master, officers, and crew of the said schooner
Coquette, citizens of the United States, and in and upon
the
Jeune Eugenie, a vessel of the United States and of
the citizens thereof and in and upon Edward L. Coffin, the master,
and the officers and crew of the said vessel, being citizens of the
United States, and also in and upon other vessels of the United
States, their officers and crews, citizens of the United States,
and in and upon other vessels of various nations, states, and
kingdoms, their officers and crews, citizens and subjects of the
said states and kingdoms. The vessel in question was an armed
vessel, ostensibly cruising as a privateer under a commission from
the King of Spain, and was captured on the high seas on 15 August,
1822, by the United States vessel of war the
Grampus,
commanded by Lieutenant Gregory, after a short resistance, and
receiving a fire from the
Grampus by which one man was
killed and six men were wounded. The captured vessel was sent into
the port of Charleston, South Carolina, for adjudication. A libel
was filed and a claim interposed, and upon the proceedings in the
district court a decree was pronounced restoring the brig to the
claimants without damages for the capture, injury, or detention.
From this sentence an appeal was interposed by both parties to the
circuit court, and upon the hearing in that court a decree was
pronounced affirming so much of the decree as acquitted the brig
and reversing so much of
Page 25 U. S. 3
it as denied damages; and the circuit court proceeded finally to
award damages to the amount of $10,288.58. From this decree an
appeal was interposed in behalf of the United States and the
captors to the Supreme Court. The cause coming on to be heard in
this Court at February term, 1825, it not appearing that there had
been any final decree in the circuit court ascertaining the amount
of damages, the cause was dismissed.
*
But at the last term, it being discovered that in point of fact
there had been a final award of damages, which was omitted by
mistake in the transcript of the record certified by the Clerk of
the court below, this Court, on motion of the appellants, ordered
the cause to be reinstated.
At the hearing in the court below, it appeared that the
commission of the Palmyra was numbered 38, and entitled in the
margin, "Real Passaporte de Corso para los Mares de Indias;" that
is, "A royal cruising passport for the Indian seas." The great seal
of Spain was affixed to it, and it was signed with the royal sign
manual with the usual formula: "Yo el Reg." It was afterwards
countersigned by the Secretary of State and Marine Affairs, and
dated at Madrid, the 10th of February, 1816. The blanks in the
passport or commission, were filled up to Don Pablo Llanger, an
inhabitant of Cadiz, to arm for war his Spanish schooner (Goleta)
called the Palmyra, of ninety-three tons, one twelve pound cannon,
and eight carronades, ten pounders, with a crew of one hundred men.
A printed note on the back of the commission, signed by Juan Dios
Robiou, lieutenant in the national navy, and captain of the port of
Porto Rico, dated on the 5th of February, 1822, renewed the
commission in favor of Llanger, as captain of the Palmyra, for a
new cruise of three months, it having been originally granted for
the term of three months, which had expired. The vessel, on board
of which the commission was found, was in fact a brig of one
hundred and sixty tons, commanded by Captain Escura. Various
testimony was taken as to the
Page 25 U. S. 4
acts of piracy committed by the
Palmyra upon the
Coquette and the
Jeune Eugenie, as to the
insubordination and predatory spirit of the crew of the
Palmyra, and as to the nature and circumstances attending
the encounter between the
Palmyra and the
Grampus, which gave rise to a question of fact in respect
to the justifiableness of the cause of capture. But it has not been
thought necessary to analyze the testimony, as the most material
facts are stated in the opinion of the Court.
Page 25 U. S. 7
MR. JUSTICE STORY delivered the opinion of the Court.
This is the case of a proceeding
in rem by a libel of
information founded on the Act of Congress of
Page 25 U. S. 8
March, 1819, ch. 75, as continued in force by the Act of
Congress of 15 May, 1820, ch. 112. The second section of the former
act authorizes the President
"to instruct the commanders of public armed vessels of the
United States to seize, subdue, 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."
The fourth section declares
"That 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."
The brig
Palmyra is an armed vessel, asserting herself
to be a privateer and acting under a commission of the King of
Spain, issued by his authorized officer at the Island of Porto
Rico. She was captured on the high seas on 15 August, A.D. 1822, by
the United States vessel of war
Grampus, commanded by
Lieutenant Gregory, after a short resistance, and receiving a fire
from the
Grampus, by which one man was killed and six men
were wounded. She was sent into Charleston, South Carolina, for
adjudication. A libel was duly filed and a claim interposed, and
upon the proceedings in the district court of that district a
decree was pronounced by the court that the brig be acquitted,
without any damages for the capture, injury, or detention. From
this decree an appeal was made by both parties to the circuit
court, and upon the hearing in that court, where, for the first
time, the officers of the privateer were examined as witnesses, the
circuit court pronounced a decree affirming
Page 25 U. S. 9
so much of the decree of the district court as acquitted the
brig and reversing so much of it as denied damages, and proceeded
finally to award damages to the claimants to the amount of
$10,288.58. From this decree there was an appeal interposed on
behalf the United States and the captors to the Supreme Court. The
cause came on to be heard upon this appeal at February term, 1825,
and upon inspection of the record it did not then appear that there
had been any final decree ascertaining the amount of damages. The
Court was of opinion that if there had been no such decree, the
case was not properly before the court upon the appeal, there not
being any final decree within the meaning of the act of Congress.
The court considered that the damages were but an incident to the
principal decree, that the cause was but a single one, and that the
cause could not at the same time be in the circuit court for the
purpose of assessing damages and in this Court upon appeal for the
purpose of an acquittal or condemnation of the vessel. The
questions, indeed, were different, but the cause was the same. Upon
this ground the appeal was dismissed. But at the last term of the
Court, it appearing that in point of fact there had been a final
award of damages and that the error was a mere misprision of the
clerk of the circuit court in transmitting an imperfect record, the
Court, upon motion of the appellants at the last term, ordered the
cause to be reinstated.
It is now contended that this Court had no authority to
reinstate the cause after such a dismissal 1. because it may
operate to the prejudice of the stipulators or sureties, to whom
the privateer was delivered upon stipulation in the court below;
and 2. because the cause was capable of being heard in this Court
upon the appeal in respect to the decree of acquittal, that being
the only decree in which the United States had any interest as a
party, and that as to the damages the captors were the only persons
responsible for damages, and they alone had a right of appeal
respecting the same, so that by operation of law the cause had
become
Page 25 U. S. 10
divided into two separate and distinct causes, in which each
party was an actor.
This Court cannot concur in either objection. Whenever a
stipulation is taken in an admiralty suit for the property
subjected to legal process and condemnation, the stipulation is
deemed a mere substitute for the thing itself, and the stipulators
liable to the exercise of all those authorities on the part of the
court which it could properly exercise if the thing itself were
still in its custody. This is the known course of the admiralty. It
is quite a different question whether the court will, in particular
cases, exercise its authority where sureties on the stipulation may
be affected injuriously. That is a subject addressed to its sound
discretion. In the present case there was no ground for surprise or
injury to the stipulators, or indeed to any party in interest. If
there had been no final award of damages, the cause would not have
been properly before this Court, and the appeal itself, being a
nullity, would have left the cause still in the circuit court. But
as such an award was made, the appeal was rightfully made, and the
dismissal, being solely for a defect of jurisdiction apparent on
the record and founded on a mistake, constituted no bar to a new
appeal, even if a general dismissal might. The appeal then might,
at any time within five years, have been lawfully made and have
bound the parties to the stipulation, to all its consequences. The
difference between a new appeal and a reinstatement of the old
appeal after a dismissal from a misprision of the clerk is not
admitted by this Court justly to involve any difference of right as
to the stipulators. Every court must be presumed to exercise those
powers belonging to it which are necessary for the promotion of
public justice, and we do not doubt that this Court possesses the
power to reinstate any cause dismissed by mistake. The
reinstatement of the cause was founded, in the opinion of this
Court, upon the plain principles of justice, and is according to
the known practice of other judicial tribunals in like cases.
The other objection has not, in our opinion, a more solid
Page 25 U. S. 11
foundation. The libel was filed by district Attorney as well in
behalf of the United States as of the captors, and prayed, as
usual, a condemnation of the vessel and distribution of the
proceeds. This fact is noticed for the purpose of answering the
observation made at the bar as to the parties to the libel. It has
been supposed that the United States and the captors are to be
deemed severally libellants having distinct rights both of
prosecution and appeal. But this proceeds upon a mistake. In every
case of a proceeding for condemnation upon captures made by the
public ships of war of the United States, whether the same be cases
of prize, strictly
jure belli, or upon public acts in the
nature of captures
jure belli, the proceedings are in the
name and authority of the United States, who prosecutes for itself
as well as for the captors. The captors cannot, without the
authority of the government, proceed to enforce condemnation. The
suit is in form and substance a proceeding by and in the name of
the United States for the benefit of all concerned. And whether the
question respect the point of condemnation or of damages, the
United States has a right of appeal coextensive with the whole
matter in litigation, and may interpose its protection to guard its
agents and officers against injury and damages. These agents and
officers are indeed, in a certain sense, parties to the suit, as
the seizing officer is in cases of mere municipal seizures, and
when the claimant makes himself, by a demand of damages, an actor
in the suit, no doubt exists that the court may proceed to decree
damages against them, and thus entitle them to a separate right of
appeal if the government should feel that it had no further
interest to pursue the suit. But still the right to damages must
always be dependant upon the question of condemnation or acquittal,
for it can never be successfully contended that if a condemnation
is finally adjudged, a decree for damages can be maintained. And on
the other hand, in a case of acquittal, the whole circumstances of
the case must be taken into consideration in order to ascertain
that the case is one which justifies an award of damages.
Page 25 U. S. 12
In the present case there was an appeal entered by the district
attorney for the United States, and also for the captors, from the
decree of the circuit court. If this decree was final, such an
appeal brought up the whole cause as to all he parties, and would,
in point of law, have produced the same effect if in form the
appeal had only been in the name of the United States. If the
decree was not final (as upon the original record it appeared to
this Court not to be), then it was void as to all parties. Either
way, then, there never was any separation of the parties libellants
so as to give rise to the point of separate independent causes. We
are, then, of opinion that the whole cause is now rightfully before
us.
It is contended on behalf of the appellees that the present suit
cannot be maintained, because the libel itself is fatally defective
in its averments. It is said to be too loose, inartificial, and
general in its structure to give a just foundation for any judgment
of condemnation. If this were admitted to be true, the only effect
would be, supposing the merits on the evidence appeared to be in
favor of the libellants, that the court would, according to its
known course of practice, remand the cause the circuit court with
directions to allow an amendment of the libel and ulterior
proceedings consequent thereon. But there is asserted to be another
fatal defect in the averments of the libel, which is incapable of
being cured because it cannot be established in point of fact, and
that is that the offenders are not alleged to have been convicted
upon any prosecution
in personam of the offense charged in
the libel. The argument is that there must be a due conviction upon
a prosecution and indictment for the offense
in personam
averred and proved in order to maintain the libel
in
rem.
In respect to the first objection it must be admitted that the
libel is drawn in an inartificial, inaccurate, and loose manner.
The strict rules of the common law as to criminal prosecutions have
never been supposed by this Court to be required in informations of
seizure in the admiralty for forfeitures, which are deemed to be
civil proceedings
in
Page 25 U. S. 13
rem. Even on indictments at the common law, it is often
sufficient to state the offense in the very terms of the
prohibitory statute, and the cases cited by the Attorney General
are directly in point. In informations in the Exchequer for
seizures, general allegations bringing the case within the words of
the statute have been often held sufficient. And in this Court it
has been repeatedly held that in libels
in rem, less
certainty than what belongs to proceedings at the common law will
sustain a decree of condemnation if the words of the statute are
pursued and the allegations point out the facts, so as to give
reasonable notice to the party to enable him to shape his defense.
There is indeed in admiralty proceedings little ground to insist
upon much strictness of averment, because in however general terms
the offense may be articulated, it is always in the power of the
court to prevent surprise by compelling more particular charges as
to the matters intended to be brought forward by the proofs. In
general it may be said that it is sufficient in libels
in
rem for forfeitures to allege the offense in the terms of the
statute creating the forfeitures. There may be exceptions to this
rule where the terms of the statute are so general as naturally to
call for more distinct specifications. Without pretending to
enumerate such exceptions, let us look at the allegations in the
amended libel in the present case. It charges
"that the said brig, called the
Palmyra, &c., was
and is a vessel from which a piratical aggression, search,
depredation, restraint, and seizure has been first attempted and
made, to-wit, upon the high seas in and upon the schooner
Coquette, a vessel of the United States and of the
citizens thereof and in and upon the master, officers, and crew of
the said schooner
Coquette, citizens of the United States,
and also in and upon the
Jeune Eugenie, a vessel of the
United States and of the citizens thereof, and in and upon Edward
L. Coffin, the master, and the officers and crew of the said
vessel, being citizens of the United States, and also in and upon
other vessels of the United States, their officers and crews,
citizens of the United States, and in and upon other vessels of
various nations, states, and
Page 25 U. S. 14
kingdoms, their officers and crews, citizens and subjects of
said states and kingdoms."
Now whatever may be said as to the looseness and generality and
consequent insufficiency of the latter clauses of this allegation,
the former specifying the
Coquette and
Jeune
Eugenie (upon which alone the proofs mainly rely for
condemnation) have, in our opinion, reasonable and sufficient
certainty. It was not necessary to state in detail the particular
acts constituting the piratical aggression, search, depredation,
restraint, or seizure. The general words of the statute are
sufficiently descriptive of the nature of the offense, and the
particular acts are matters proper in the proofs. We may, then,
dismiss this part of the objection.
The other point of objection is of a far more important and
difficult nature. It is well known that at the common law, in many
cases of felonies, the party forfeited his goods and chattels to
the Crown. The forfeiture did not, strictly speaking, attach
in
rem, but it was a part, or at least a consequence, of the
judgment of conviction. It is plain from this statement that no
right to the goods and chattels of the felon could be acquired by
the Crown by the mere commission of the offense, but the right
attached only by the conviction of the offender. The necessary
result was that in every case where the Crown sought to recover
such goods and chattels, it was indispensable to establish its
right by producing the record of the judgment of conviction. In the
contemplation of the common law, the offender's right was not
devested until the conviction. But this doctrine never was applied
to seizures and forfeitures created by statute,
in rem,
cognizable on the revenue side of the Exchequer. The thing is here
primarily considered as the offender, or rather the offense is
attached primarily to the thing, and this whether the offense be
malum prohibitum or
malum in se. The same
principle applies to proceedings
in rem on seizures in the
admiralty. Many cases exist where the forfeiture for acts done
attaches solely
in rem and there is no accompanying
penalty
in personam. Many cases exist where there is both
a forfeiture
in rem and a personal penalty.
Page 25 U. S. 15
But in neither class of cases has it ever been decided that the
prosecutions were dependent upon each other. But the practice has
been, and so this Court understand the law to be, that the
proceeding
in rem stands independent of and wholly
unaffected by any criminal proceeding
in personam. This
doctrine is deduced from a fair interpretation of the legislative
intention apparent upon its enactments. Both in England and
America, the jurisdiction over proceedings
in rem is
usually vested in different courts from those exercising criminal
jurisdiction. If the argument at the bar were well founded, there
could never be a judgment of condemnation pronounced against any
vessel coming within the prohibitions of the acts on which the
present libel is founded, for there is no act of Congress which
provides for the personal punishment of offender, who commit "any
piratical aggression, search, restraint, depredation or seizure"
within the meaning of those acts. Such a construction of the
enactments, which goes wholly to defeat their operation and
violates their plain import, is utterly inadmissible. In the
judgment of this Court, no personal conviction of the offender is
necessary to enforce a forfeiture
in rem in cases of this
nature.
Having disposed of these questions which are preliminary in
their nature, we may now advance to the consideration of those
which turn upon the merits of the cause. These questions are 1.
whether the present be, upon the facts, a case for condemnation,
and if not 2. whether it be a case for remunerative damages, for
vindictive damages are and must be disclaimed.
Upon the first point it is unnecessary to go into any
examination at large of the various facts preceding and
accompanying the capture, because the judges are divided in
opinion, and consequently, according to the known practice of the
Court, the decree of the circuit court, so far as it pronounced a
decree of acquittal, must be affirmed.
In respect to the second point, we are all of opinion that the
case is clearly not a case for damages. The whole circumstances
present such well founded grounds for suspicion
Page 25 U. S. 16
of the piratical character and conduct of the privateer as
required Lieutenant Gregory, in the just exercise of his
instructions from the President, under the acts of Congress, to
subdue and send her in for adjudication. That her crew were guilty
of plunder from the
Coquette and the
Jeune
Eugenie is established by proofs entirely competent and
satisfactory. Her exercise of the right of search on these vessels
was irregular and unjustifiable, and indicated on the part of the
boarding officers no disinclination to petty thefts if they avoided
forcible robbery. Her commission is itself liable to much suspicion
and criticism. It varies essentially in the description of the rig,
the size, and the denomination of the vessel from that on board of
which it is found. It purports to be for a schooner of 93 tons,
under the command of Don Pablo Llanger; it is found on board of a
brig of 160 tons, commanded by Captain Escurra. It was originally
granted for a three months' cruise, which had expired, and it
purports to be renewed by the Port Captain of Porto Rico, a
subordinate agent of the King of Spain, for a new cruise, by an
endorsement on it without any known authority.
We do not advert to these circumstances to establish the
position that the commission was utterly void or rendered the
exercise of belligerent rights piratical. Whatever may be the
irregularities in the granting of such commissions or the validity
of them so far as respects the King of Spain, to found an interest
of prize in the captors, if the
Palmyra bona fide
received it, and her crew acted
bona fide under it, it
ought at all events, in the courts of neutral nations, to be held a
complete protection against the imputation of general piracy. But
the defects of the commission, connected with the almost total want
of order and command on board of the privateer and the manifest
insubordination and predatory spirit of the crew, could not but
inflame to a high degree every other just suspicion. In short,
taking the circumstances together, the court thinks that they
presented
prima facie a case of piratical aggression,
search, restraint, and depredation within the acts of Congress,
open to explanation, indeed, but if unexplained,
Page 25 U. S. 17
pressing heavily on the vessel for the purpose of forfeiture.
Lieutenant Gregory, then, was justifiable in sending her in for
adjudication, and has been guilty of no wrong calling for
compensation.
It has been argued at the bar that probable cause of seizure in
this case constitutes no ground of defense against the claim of
damages. It has been truly stated as the settled doctrine of this
Court that in cases of seizures under mere municipal laws, probable
cause, unless so made by statute, constitutes no ground for denying
damages or justifying the seizure. But it is supposed that probable
cause is not an excuse or justification of any seizure or capture
except in cases
jure belli, and the case of
The Apollon,
in this Court, 9 Wheat. 362, is relied on to establish this
position. That case contains no doctrine leading justly to any such
conclusion. It was a case of seizure under our revenue laws, and in
the opinion of the Court the point is examined how far probable
cause constituted in that case a ground to exempt from damages. On
that occasion the Court said that the argument had not
distinguished between probable cause as applied to cases of capture
jure belli and as applied to cases of municipal seizures,
and then proceeded to state the distinction. There was no
intimation that in cases of marine torts generally, or under laws
authorizing the exercise to a limited extent of belligerent rights,
or
quasi-belligerent rights, probable cause might not be a
sufficient excuse. In the case of the
Marianna
Flora, at the last term, 11 Wheat. 1, the very
point was before the Court, and it was in that case held that
probable cause was a sufficient excuse for a capture under
circumstances of hostile aggression at sea. Indeed, in cases of
marine torts arising under the general maritime law, probable cause
often is a complete excuse for the act, and always goes in
mitigation of damages. In the admiralty, the award of damages
always rests in the sound discretion of the court under all the
circumstances. The case of
The St. Louis, in 2 Dods. 210,
is a strong illustration of the doctrine. But in cases like the
present, where the public armed ships
Page 25 U. S. 18
of the United States are authorized to make captures to a
limited extent, the authority so exercised by them must be deemed
to stand upon the same analogy as captures strictly
jure
belli. And the doctrine of the prize courts as to the denial
of damages, where there is probable cause for the capture,
furnishes the proper rule to govern the discretion of the court. We
are then of opinion that in the present case there was strong
probable cause for the capture, and that the decree of the circuit
court, so far as it awards damages to the claimants, ought to be
reversed.
It remains only to remark upon one or two points made against
the competency of some of the testimony in the cause. It is
objected that Lieutenant Gregory is not a competent witness because
he is, notwithstanding his release of his interest as captor,
interested to defeat the claim for damages. However well founded
this objection may be as to his competency on the point of damages,
having been admitted both in the district and circuit courts as a
witness without objection, we think there was a waiver of the
objection, and it cannot now be insisted on. As to the depositions
of Captains Souther and Coffin, they were taken under commissions
duly issued from the circuit court according to the rule of this
Court, and are therefore admissible upon the strictest
principles.
DECREE. This cause came on, &c., On consideration whereof,
it is ADJUDGED, ORDERED, and DECREED, that so much of the decree of
the circuit court as decrees restitution of the brig
Palmyra to the claimants, be, and the same is, hereby
affirmed, and that so much of the decree of the said circuit court
as awards damages to the claimants be and the same is hereby
REVERSED and ANNULLED, and it is further ORDERED that said cause be
remanded to said circuit court for further proceedings according to
law.
*
S.C. 23 U. S. 10 Wheat.
502.