Joseph Story

“ It is upon this ground that Sir W. Scott held the doctrine, that if a neutral resist search, not knowing of the existence of a war, it is no ground of condemnation; [22] and that still more recently he has determined that the right of visitation and search does not exist, and cannot be exercised in time of peace. [23] Every ship navigating the ocean in time of peace may appropriate to her temporary use so much of it as is necessary to her protection, consulting the equal rights of others. It is a right that will lie dormant, and never be exercised except upon real apprehension. ”

“ In such a case, it is not matter of surprise, that he should come to the conclusion that it was not proper to take upon himself the responsibility of a final decision; but to confide the honour of the nation, as well as the rights of the other party, to judicial decision. No inference is attempted to be drawn, that his acts were intentionally oppressive and harsh; and it would be going a great way to declare, that an exercise of honest discretion, in a case of wrong on the other side, ought to draw after it the penalty of damages. ”

“ Supposing the general rule to be so in ordinary cases of property taken in delicto, it is not, therefore, to be admitted, that every offence, however small, however done under a mistake of rights, or for purposes wholly defensive, is to be visited with such harsh punishments. Whatever may be the case, where a gross, fraudulent, and unprovoked attack, is made by one vessel upon another upon the sea, which is attended with grievous loss or injury, such effects are not to be attributed to lighter faults, or common negligence. ”

“ 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 crippled the Alligator, and destroyed half her crew. ”

“ 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. ”

“ It has been argued, that no ship has a right to approach another at sea; and that every ship has a right to draw round her a line of jurisdiction, within which no other is at liberty to intrude. In short, that she may appropriate so much of the ocean as she may deem necessary for her protection, and prevent any nearer approach. ”

“ It is true, that it has been held in the Courts of this country, that American ships, offending against our laws, and foreign ships, in like manner, offending within our jurisdiction, may, afterwards, be pursued and seized upon the ocean, and rightfully brought into our ports for adjudication. This, however, has never been supposed to draw after it any right of visitation or search. The party, in such case, seizes at his peril. If he establishes the forfeiture, he is justified. If he fails, he must make full compensation in damages. ”

“ 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. ”

“ 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. ”

“ Certainly, in the doubtful conflict of just attack, and just defence, every one will think the defence entitled to favour. There are all degrees of just, equitable, and favoured, and that which is more just, is to be preferred to that which is less so. the fact of the offence committed by the captured vessel. The captors had no authority to apply the law to the fact, to sit in judgment upon the case, and to inflict summary justice on the offender. Still less could the commander of a public ship be expected to assume the responsibility of suffering the offender to escape. ”

“ Even in cases of marine torts, independent of prize, Courts of admiralty are in the habit of giving or withholding damages upon enlarged principles of justice and equity, and have not circumscribed themselves within the positive boundaries of mere municipal law. They have exercised a conscientious discretion upon the subject. A party, who is in delicto, ought to make a strong case, to entitle himself to general relief. ”

“ I have a right to commence. This is the opinion more favourable to humanity, and the right to send in for adjudication follows as a corollary. The right to seize depended upon
proved from facts on trial, and is also confirmed by all the writers. 'We must go to meet the assault, [say they,] not only that which actually exists, but that which may take place.'
'The defence of the English was justifiable even on the behalf of the Turks, who were to suffer injury from the Tuscans in our ship. For, an injury is done to us, which is done to another in our house; and a ship is compared to a house. ”

“ The dangerous pirates are, for the most part, not difficult to distinguish. Their haunts, their habits, their appearance, point them out; and though the commissioned officer acts at his own risk, yet if he act on those indicia, and on information and evidence, and stays his hand where he can find no trace or evidence of guilt, he incurs no real danger of being liable to damages ”

“ In respect to ships of war sailing, as in the present case, under the authority of their government, to arrest pirates, and other public offenders, there is no reason why they may not approach any vessels descried at sea, for the purpose of ascertaining their real characters. ”

“ Upon the hearing of the cause in the District Court, the Judge pronounced an interlocutory sentence of restitution, and subsequently pronounced 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 ”

“ No. 53. art. 9. Singular mutability of human opinions! Nearly all the writers cited by Gentilis are now forgotten; he himself is hardly known except by name; even Grotius is little read, and, however extensive the effects of his great work on his own age, it is now considered as resting more on the authority of the innumerable writers of every age and nation cited by him, than on original principles, or the deductions of reason. ”

“ Comment. ad. L. 3. God. de Professoribus et Medicis; and the work above referred to, Hipanicae Advocationis, which is a collection of opinions given by him as the counsel of Spanish claimants in the English Courts of prize, and may be considered as the earliest reports of adjudged cases of maritime law (Moreri, Dict.) 'Albericus Gentilis,' says Sir James Mackintosh, 'was certainly the 2. The captors were equally justifiable in sending her in for adjudication. ”