1827. The Palmyra. 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 think 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. 1827. The Palmyra. cause of sei the claim for 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 Probable seizure in this case constitutes no ground of defence against zure a bar to the claim of damages. It has been truly stated as the set- damages. tled 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. Rep. 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. Rep. 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. Rep. 210. is a strong illustration of the doctrine. But, in cases like the present, where the public armed ships VOL. XII. 3 1827. The Palmyra. Objection to the testimony officer waived below. 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 of the seizing against the competency of some of the testimony in the in the Court 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. MARTIN, Plaintiff in Error, v. MOTT, Defendant in Error. [CONSTITUTIONAL LAW.] The authority to decide whether the exigencies contemplated in the Constitution of the United States, and the act of Congress of 1795, ch. 101. in which the President has authority to call forth the militia, "to execute the laws of the Union, suppress insurrections, and repel invasions,” have arisen, is exclusively vested in the President, and his decision is conclusive upon all other persons. Although a militia man, who refused to obey the orders of the President, calling him into the public service under the act of 1795, is not, in the sense of that act. "employed in the service of the United States," so as to be subject to the rules and articles of war; yet he is liable to be tried for the offence under the 5th section of the same act, by a Court Martial called under the authority of the United States. Where, in an action of replevin, the defendant, being a Deputy Marshal of the United States, avowed and justified the taking the plaintiff's goods, by virtue of a warrant issued to the Marshal of the District, to collect a fine imposed on him by the judgment of a Court Martial, described as a General Court Martial composed of officers of the militia of the State of New-York, in the service of the United States, (six in number, and naming them,) duly organized and convened, by general orders, issued pursuant to the act of Congress of February 28, 1795, ch. 101., for the trial of those of the militia of the State of New-York, ordered into the service of the United States in the third military district, who had refused to rendezvous and enter into the service of the United States, in obedience to the orders of the Commander in Chief of the State of New-York, of the 4th and 29th of August, 1814, issued in compliance with the requisition of the President made in pursuance of the same act of Congress, and alleging that the plaintiff, being a private in the militia, neglected and refused to rendezvous, &c., and was regularly tried by the said General Court Martial, and duly convicted of the said delinquency: Held, that the avowry was good. ERROR to the Court for the Trial of Impeachments and Correction of Errors of the State of New-York. 1827. Martin V. Mott. 1827. Martin V. Mott. This was an action of replevin, originally brought in the Supreme Court of New-York by the defendant in error, Mott, against the plaintiff in error, Martin, to which an avowry was filed, containing, substantially, the following allegations: That on the 18th of June, 1812, and from thence until the 25th of December, 1814, there was public and open war between the United States of America, and the United Kingdom of Great Britain and Ireland, and its dependencies, and the citizens and subjects of the said countries respectively; and that during the continuance of and the said war, to wit, on the 4th day of August, 1814; also, on the 29th day of the same month, in the same year, at the city of New-York, to wit, at Poughkeepsie, in the county of Dutchess, his Excellency Daniel D. Tompkins, Esq. was then and there Governor of the State of NewYork, and Commander in Chief of the militia thereof, and being so Governor and Commander in Chief, he, the said Daniel D. Tompkins, as such Governor and Commander in Chief, on the several days last aforesaid, and in the year aforesaid, and at the place aforesaid, upon the previous requisitions of the President of the United States, for that purpose made, and to him directed, as such Governor and Commander in Chief, did issue two several general orders, bearing date respectively on the said 4th and 29th days of August, in the year aforesaid, in and by which said two general orders, among other things, the said Daniel D. Tompkins, as Governor and Commander in Chief as aforesaid, pursuant to such requisitions, and in compliance therewith, did detail certain parts and portions of the militia of the State, as he was required to do, in and by the requisitions of the President of the United States, as aforesaid, and did order the militia so detailed into the service of the United States of America, at the city of New-York, within the third military district of the said United States, as in and by the said two general orders may more fully appear. That the said Jacob E. Mott, on the several days, and in the year aforesaid, and until the 25th day of December, in the same year, being a white citizen of the said State of New-York, inhabiting and residing within the same, and between the ages of eighteen |