full compensation for his actual loss and damage; but the infliction of any forfeiture beyond this does not seem to be pressed by any considerations derived from public law. * *

In considering these points, it is necessary to ascertain what are the rights and duties of armed and other ships, navigating the ocean in time of peace. It is admitted, that the right of visitation and search. does not, under such circumstances, belong to the public ships of any nation. This right is strictly a belligerent right, allowed by the general consent of nations in time of war, and limited to those occasions. 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.

Upon the ocean, then, in time of peace, all possess an entire equality. It is the common highway of all, appropriated to the use of all; and no one can vindicate to himself a superior or exclusive prerogative there. Every ship sails there with the unquestionable right of pursuing her own lawful business without interruption; but, whatever may be that business, she is bound to pursue it in such a manner as not to violate the rights of others. The general maxim in such cases is, "sic utere tuo, ut non alienum lædas."

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.

This doctrine appears to us novel, and is not supported by any authority. It goes to establish upon the ocean a territorial jurisdiction. like that which is claimed by all nations within cannon shot of their shores, in virtue of their general sovereignty. But the latter right is founded upon the principle of sovereign and permanent appropriation, and has never been successfully asserted beyond it. Every vessel undoubtedly has a right to the use of so much of the ocean as she occupies, and as is essential to her own movements. Beyond this, no exclusive right has ever yet been recognized, and we see no reason for admitting its existence. Merchant ships are in the constant habit of approaching each other on the ocean, either to relieve their own distress, to procure information, or to ascertain the character of strangers; and, hitherto, there has never been supposed in such conduct any breach of the customary observances, or of the strictest principles of the law of nations. In respect to ships of war sailing, as

SCOTT INT.LAW

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. Such a right seems indispensable for the fair and discreet exercise of their authority; and the use of it cannot be justly deemed indicative of any design to insult or injure those they approach, or to impede them in their lawful commerce. On the other hand, it is as clear, that no ship is, under such circumstances, bound to lie by, or wait the approach of any other ship. She is at full liberty to pursue her voyage in her own way, and to use all necessary precautions to avoid any suspected sinister enterprise or hostile attack. She has a right to consult her own safety; but, at the same time, she must take care not to violate the rights of others. She may use any precautions dictated by the prudence or fears of her officers; either as to delay, or the progress or course of her voyage; but she is not at liberty to inflict injuries upon other innocent parties, simply because of conjectural dangers. These principles seem to us the natural result of the common duties and rights of nations navigating the ocean in time of peace. Such a state of things carries with it very different obligations and responsibilities from those which belong to public war, and is not to be confounded with it.

The first inquiry, then, is, whether the conduct of Lieutenant Stockton was, under all the circumstances preceding and attending the combat, justifiable. *

Upon the whole, we are of opinion, that the conduct of Lieutenant Stockton, in approaching, and ultimately, in subduing the Marianna Flora, was entirely justifiable. The first wrong was done by her, and his own subsequent acts were a just defence and vindication of the rights and honor of his country.

The next inquiry is, whether the act of sending in the Marianna Flora for adjudication, was, under all the circumstances, unjustifiable, so as to carry with it responsibility in damages. * *

*

Upon the whole, it is the opinion of the court, that the decree of the circuit court ought to be affirmed, and it is, accordingly, affirmed, without costs to either party.

Decree accordingly.

SECTION 7.-EMPLOYMENT OF ARMED VESSELS

THE FANNY.

(High Court of Admiralty, 1814. 1 Dod. 443.)

This was a question of salvage upon neutral (Portuguese) prop-. erty, on board a British armed ship, which had been taken by an American schooner, and was afterwards retaken by one of his Majesty's ships of war. The vessel sailed on her outward voyage, under convoy, with a cargo from Liverpool to Rio de Janeiro, where the master increased his crew, by hiring thirty additional men, for the purpose of fighting his way home without the protection of convoy, which he had obtained permission to do from the British admiral commanding on that station. The ship was furnished with a letter of marque, had sixteen guns mounted, with small arms and ammunition in proportion. On her return voyage, with a cargo consisting partly of Portuguese and partly of British property, she was captured on the 17th of April, 1814, by the American schooner, General Armstrong, but did not surrender till after a very severe action, in which the mate was killed and several of the seamen, and the merchant himself, who happened to be on board, was dangerously wounded. The ship and cargo were recaptured on the 10th of May, 1814, by his Majesty's ship, Sceptre, and for this service a salvage was demanded upon the Portuguese, as well as the British property. The demand for salvage was resisted on the part of the Portuguese owners.

Sir W. Scort. This ship, having a commission for war, but employed, likewise, for purposes of commerce, sailed under the protection of a British convoy, from Liverpool to Rio de Janeiro, and there obtained permission from the admiral on the station to return home without convoy. Thirty men were hired, and some additional guns were put on board, for the express purpose of enabling the ship to fight her way home; and it was upon the prospect of her being competent to defend herself that the admiral permitted her to sail without convoy. The fact of her being armed must have been notorious at Rio de Janeiro, and consequently within the knowledge of the merchants who put their goods on board. It appears, that the ship actually sustained an engagement, for the witness says, that "she did not surrender till after a very severe action of fifty-five minutes, during which many guns were fired on both sides, and the ship had her second mate killed, four men dangerously wounded, as was also the merchant himself, who happened to be on board, and her standing and running rigging all cut to pieces; so that they had no longer any command of the ship." Being so taken by the Americans, and afterwards

retaken by his Majesty's ship Sceptre, the question is, whether the Portuguese lader is entitled to the restitution of his goods absolutely, or subject to the payment of a salvage to the recaptors.

Now, upon principle, I cannot but think that the goods would have been in very great danger of condemnation in an American court of prize. Reference has been made to an act of the American Congress relative to salvage, but I do not think that it can have much bearing on the present case. The act does not define the cases to which it is intended to be applied-that is left to the courts to determine at their discretion. I shall, therefore, lay the American law entirely out of my consideration and consider the case upon the general principle. Is there a high degree of probability (for certainty is not required) that this property would have been condemned, if it had been carried into an American port? In every point of view in which I can see the matter, I cannot help thinking that it would have run a very considerable risk of condemnation; and that the Portuguese merchant would have no very good ground of complaint if it had actually been condemned. The ship being furnished with a letter of marque, is manifestly a ship of war, and is not otherwise to be considered, because she acted also in a commercial capacity. The mercantile character being superadded, does not predominate over or take away the other. There was formerly, indeed, a distinction made between privateers and merchant vessels furnished with a letter of marque, the one being entitled to head-money and the other not; but that distinction has since been entirely done away. A neutral subject is at liberty to put his goods on board a merchant vessel, though belonging to a belligerent, subject, nevertheless, to the rights of the enemy who may capture the vessel; but who has no right, according to the modern practice of civilized states, to condemn the neutral property. Neither will the goods of the neutral be subject to condemnation, although a rescue. should be attempted by the crew of the captured vessel, for that is an event which the merchant could not have foreseen. But, if he puts his goods on board a ship of force, which he has every reason to presume will be defended against the enemy by that force, the case then becomes very different. He betrays an intention to resist visitation and search, which he could not do by putting them on board a mere merchant vessel, and so far as he does this he adheres to the belligerent; he withdraws himself from his protection of neutrality, and resorts to another mode of defence; and I take it to be quite clear, that, if a party acts in association with a hostile force, and relies upon that force for protection, he is, pro hac vice, to be considered as an enemy.

It is not a sufficient excuse to say, that the Portuguese are not possessed of shipping of their own, sufficient for the whole of their commerce, and are, therefore, under the necessity of making use of those belonging to others. If they choose to take the protection of a hos

tile force instead of their own neutral character, they must take the inconvenience with the convenience; they must abide by the consequences resulting from the course of conduct which, upon the whole knowledge of the matter, they have thought proper to pursue. It could not, in this case, have been a secret, that force was to be used for the protection of the property. It must have been known to the laders of the cargo, that this ship was to sail as a single ship, and to fight her way home, since a large number of men were openly and publicly collected for the purpose of enabling her to resist a hostile force. I cannot entertain a doubt that the Americans might, upon just and sound principles, have condemned this property. The case which has been cited from the American Reports, is much too indistinct to assist the court in forming its judgment upon the practice of the American court. The ground upon which salvage was there given, does not appear to be of great authority either one way or the other. I decree restitution of this property, on payment of the usual salvage to the recaptor.

THE NEREIDE.

(Supreme Court of the United States, 1815. 9 Cranch, 388, 3 L. Ed. 769.) This was an appeal by Manuel Pinto, from the sentence of the Circuit Court for the District of New York, affirming (pro forma) the sentence of the District Court which condemned that part of the cargo which was claimed by him. The facts of the case are thus stated by the Chief Justice in delivering the opinion of the court.

Manuel Pinto, a native of Buenos Ayres, being in London, on the 26th of August, 1813, entered into a contract with John Drinkald, owner of the ship Nereide, whereof William Bennett was master, whereby the said Drinkald let to the said Pinto the said vessel to freight for a voyage to Buenos Ayres and back again to London, on the conditions mentioned in the charter party.

Under this contract a cargo, belonging in part to the freighter, in part to other inhabitants of Buenos Ayres, and in part to British subjects, was taken on board the Nereide, and she sailed under convoy some time in November, 1813. Her license, or passport, dated the 16th of November, states her to mount 10 guns and to be manned by 16 men. The letter of instructions from the owner to the master is dated on the 24th of November, and contains this passage: "Mr. Pinto is to advance you what money you want for ship's use at River Plate, and you will consider yourself as under his directions. so far as the charter party requires."

On the voyage, the Nereide was separated from her convoy, and on the 19th of December, 1813, when in sight of Madeira, fell in with, and after an action of about fifteen minutes, was captured by the