CASES DETERMINED IN THE SUPREME COURT OF THE UNITED STATES. JANUARY TERM, 1827. The PALMYRA: ESCURRA, Master. Captures.-Probable cause. A question of probable cause of seizure, under the piracy acts of the 3d March 1819, ch. 75, and the 15th of May 1820, ch. 112. In such a case, although the crew may be protected by a commission bond fide received and acted under, from the consequences attaching to the offence 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 justlyfounded suspicion, it is sufficient, under the act of congress, to justify the captors in bringing in the vessel for adjudication, and to exempt them from costs and 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 the 3d of March 1819, c. 75, and the 15th of May 1820, c. 112. *APPEAL from the Circuit Court of South Carolina. This was a [ *2 libel of information, under 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," continued in force by the act of the 15th of 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 upon the master, officers and crew of the said schooner Coquette, citizens of the United States; and in and upon The Palmyra. 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 the 15th of 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 it as denied damages; and the cir*3 1 cuit 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. (10 Wheat. 502.) 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 Rey." 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 acts of piracy committed by the Palmyra upon the Coquette and the Jeune Eugenie, as to the insubordination and predatory *4 ] The Palmyra. 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. January 9th. The Attorney-General and Hayne, for the appellants, argued, that the Palmyra was not lawfully and regularly commissioned; and that, admitting the vessel was so commissioned, she had forfeited her character by the misconduct of the officers and crew, and acquired that of a pirate. 1. A commmission to cruise is a delegated authority, and can only proceed from the sovereign. Martens, Priv. 11-38; 2 Azuni 353 (Johnson's Transl.). Subordinate agents may be employed to execute the will of the sovereign in that respect, but the actual delegation of the power must clearly appear. The original commission being issued by the King of Spain to Captain Llanger, for a cruise of three months, which had expired, the commission was functus officio. Its subsequent extension to Captain Escura, by the port-captain of Porto Rico, was without any authority from the king for that purpose. 2. A commission to cruise is given, not to the armed vessel, but to the officer commanding the vessel; and though the officer next in rank may, in his absence, succeed to his rights, he does so by becoming captain for the time being. It has, therefore, been expressly determined, that if in the absence of the master, a privateer makes a capture, it is not such a capture as vests a prize interest in the captors, but it must be condemned as a droit. 3 Rob. 195, 224; 5 Ibid. 230. 3. It has become an established rule, and made necessary *by the laws of all nations, that every privateer, before she is permitted to [ *5 cruise, shall give security, and this fact must appear on the face of the commission itself. Wheat. Capt. 41, 320; Martens 4, 6; Bynk. Q. J. Pub. Du Ponceau's Transl. 147; 2 Bro. Civ. & Adm. Law 339; Molloy 49. Such security is required by the laws of Spain, but was not given in this case. 4. The learned counsel entered into a minute examination of the facts, to show that the vessel ought to have been condemned as a piratical vessel, under the law of nations, or as having committed a piratical aggression, under the acts of congress, which were in conformity with the law of nations. They then proceeded to argue, that however this might be, there was, at all events, probable cause for the capture of the Palmyra, and for sending her in for adjudication. Probable cause had been defined to be less than evidence which would justify condemnation. In its legal sense, it means, a seizure made under circumstances which warrant suspicion. Locke v. United States, 7 Cranch 339, 348. The term must receive the same exposition in matters of prize, and is applied to a captor as well as a seizer. 1 Mason 27; 3 Cranch 458, 491. In all captures, made jure belli, circumstances of strong suspicion will justify the captors, and the same circumstances must equally justify a seizure made under this act of congress, which authorizes hostilities against those, who, by their conduct, have acquired the piratical character, and forfeited the protection of their own country. Indeed, this must now be considered as a settled principle in this court, since the decision of the The Palmyra. case of The Marianna Flora, 11 Wheat. 1; every circumstance of which would find its parallel in the present case. The court having determined that it will not look beyond the act of congress for a description of piratical vessels, and that no damages will be given for bringing in for adjudication, after capture of a vessel falling within that description, if the seizing officer *acted bona fide in the honest discharge of his duty under the law, *6] and the instructions of the president, although the court itself might be of opinion, that he ought to have released the vessel, nothing remains but to apply these principles to the facts of the present case. The same doctrine had also been laid down by Sir W. SCOTT, in a case which this court cite with approbation in the judgment in The Marianna Flora. (The Louis, 2 Dods. 210.) The learned counsel further insisted, that the seizing officer was fully justified in capturing, and sending in for adjudication, the Palmyra, upon the following, among other grounds: 1. Because the vessel had, in the very words of the statute, committed various acts "of piratical aggression, search, restraint, depredation and seizure," on American and other vessels. 2. Because the conduct of the vessel, in searching American ships, in violation of the treaty between the United States and Spain, and all the other circumstances of the case, warranted the worst suspicions respecting her character and couduct. 3. Because the conduct of the commander of the Palmyra, after the capture, and the unsatisfactory explanations given by him of the above circumstances, confirmed those suspicions; and the seizing officer not being, according to his instructions, "satisfied that she was acting under a regular commission, and not piratically," he was bound to send her in for adjudication. Tazewell, for the respondents, argued: 1. That the court had no authority to reinstate the cause, after it was dismissed at a former term: 1st. Because it might operate to the prejudice of the sureties, to whom the property had been delivered, on bail, in the court below; and 2d. Because the cause might be heard in this court, upon the appeal, in respect to the sentence of restitution, that being the only decree in which the United States had any interest as a party; and that, as to damages, the captors were the only per*7 ] sons responsible for damages, and they alone had a right of appeal respecting that subject; so that the original cause had thus become divided into two causes, in which each party was an actor. 2. The learned counsel also insisted, that the libel was defective, in not charging, with sufficient precision, the particular acts of piratical aggression, and in omitting to allege a previous prosecution and conviction of the captured persons, of the crime of piracy, which, it was insisted, was an essential pre-requisite to the proceeding in rem. 3. As to the general merits, he argued, with greath minuteness and ability, upon the facts, to show that the vessel had not been guilty of a piratical aggression, within the meaning of the acts of congress, and that no such probable cause existed as justified the captors in the original seizure, and in bringing in the vessel for adjudication. The evidence was not sufficient to establish any acts of sea-robbery, constituting a piratical character, or general habit of piracy; and so far from having committed a piratical aggression on the Grampus, the Palmyra had merely acted in self |