The Palmyra. 12 W.

tion in personam, of the offence charged in the libel. The argument is, that there must be a due conviction upon a prosecution and indictment for the offence 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 [ 13 ] civil proceedings in *rem. Even on indictments at the common law, it is often sufficient to state the offence in the very terms of the prohibitory statute; and the cases cited by the attorneygeneral 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 defence. There is, indeed, in admiralty proceedings, little ground to insist upon much strictness of averment, because, in however general terms the offence 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 offence 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 kingdoms,

The Palmyra. 12 W.

*their officers and crews, citizens and subjects of said [ 14 ] 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 offence; 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 offence; 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 offence is attached primarily to the thing; and this, whether the offence 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. But in neither class of cases has it ever [* 15 ] 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

The Palmyra, 12 W.

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 offenders, 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.

[ *16

16

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 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 indorsement on it, without any known authority. We do not

The Palmyra. 12 W.

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 think that they presented, primâ facie, a case of piratical aggression, search, restraint, and depredation, within the acts of congress, open to explanation indeed, but if unexplained, *pressing heavily on the vessel for the [ 17 ] 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 defence 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 W. 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 W. 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

Martin v. Mott. 12 W.

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 pub[ 18 ] lic armed ships of the United States are authorized to make captures to a limited extent, the authority 30 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.

9 P. 483; 12 P. 488; 2 H. 210; 6 H. 31; 18 H. 110.

MARTIN, Plaintiff in Error, v. MOTT, Defendant in Error.

12 W. 19.

The act of February 28, 1795, (1 Stats. at Large, 424,) which confers power on the President to call forth the militia in certain exigencies, is a constitutional law, and the President is the exclusive and final judge whether the exigency has arisen.

A requisition by him is an order, and it is not necessary in pleading to set out the order; it is enough to aver that it was made.

Disobedience of an order of the President calling forth the militia, renders a citizen liable to trial by a court-martial.

Such a court-martial is not required to be organized according to the rules and articles of war, under the acts of congress, nor did its authority expire with the war.

THE case is stated in the opinion of the court.

The Attorney-general, and Coxe, for the plaintiff in error.

D. B. Ogden, for the defendant in error.