The MARIANNA FLORA. The Vice Consul of In Admiralty proceedings, amendments are made in the appellate Court, not only as to form, but as to matter of substance, as by the filing a new count to the libel; the parties being permitted, whenever public justice, and the substantial merits require it, to introduce new allegations and new proofs; non allegata allegare, et non probata probare. If the amendment is made in the Circuit Court, the cause is heard and adjudicated by that Court, and (upon appeal) by this Court on the new allegation; but if the amendment is allowed by this Court, the cause is remanded to the Circuit Court, with directions to permit the amendment to be made. An attack made upon a vessel of the United States, by an armed vessel, with the avowed intention of repelling the approach of the former, or of crippling or destroying her, upon a mistaken supposition that she was a piratical cruizer, and without a piratical or felonious intent, or for the purpose of wanton plunder, or malicious destruction of property, is not a piratical aggression under the act of the 3d of March, 1819, c. 75. Nor is an armed vessel, captured under such circumstances, liable to confiscation as for a hostile aggression, under the general law of nations. f87f 301 1826. The Marianna Flora. The act extends to foreign vessels committing a piratical aggression ; and whatever responsibility the nation may incur towards foreign states, by executing its provisions, the tribunals of the United States are bound to carry them into effect. Pirates may be lawfully captured by the public or private ships of any nation, in peace or in war; for they are hostes humani generis. American ships offending against our own laws, may be seized upon the ocean, and foreign ships thus offending within our territorial jurisdiction, may be pursued and seized upon the ocean, and brought into our ports for adjudication. But, in such cases, the party seizes at his peril, and is liable to costs and damages if he fails to establish the forfeiture. Ships of war sailing under the authority of their government, in time of peace, have a right to approach other vessels at sea for the purpose of ascertaining their real characters, so far as the same can be done without the exercise of the right of visitation and search, which does not exist in time of peace. No vessel is bound to await the approach of armed ships under such circumstances; but such vessel cannot lawfully prevent their approach by the use of force, upon the mere suspicion of danger. Where an aggression was committed by a foreign armed merchant vessel, on a public armed ship of the United States, under these circumstances, and a combat ensued upon mutual misapprehension and mistake, the commander of the public ship was held exempt from costs and damages for subduing, seizing, and bringing into a port of this country for adjudication, the offending vessel. APPEAL from the Circuit Court of Massachu setts. The original libel filed in the District Court against the Portuguese ship Marianna Flora, and cargo, was for an alleged piratical aggression attempted or committed by the ship on the United States armed schooner Alligator, Lieutenant Stockton commander, against 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." a Which provides, (sec. 1.) that the President of the United States be authorized and requested to employ so many of the public Upon the hearing of the cause in the District 1826. Court, the Judge pronounced an interlocutory The Mariansentence of restitution, and subsequently pro- na Flora. nounced 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; and, afterwards, before the hearing of the appeal, by request of the government of the United States, and with the consent of the libellants, the ship and cargo were restored to the claimants, and fur armed vessels as in his judgment the service may require, with suitable instructions to the commanders thereof, in protecting the merchant vessels of the United States, and their crews, from piratical aggressions and depredations. (Sec. 2.) The President of the United States is authorized to instruct the commanders of the public armed vessels of the United States, to subdue, seize, take, and send into any port of the United States, any armed vessel or boat, or any vessel or boat, the crew whereof shall be armed, and which shall have attempted or committed any piratical aggression, search, restraint, depredation, or seizure, upon any vessel of the United States, or of the citizens thereof, or upon any other vessel; and also to retake any vessel of the United States, or its citizens, which may have been unlawfully captured upon the high seas. (Sec. 3.) Authorizes the merchant vessels of the United States to defend themselves against any piratical aggressions, &c. and to capture the assailant. (Sec. 4.) Whenever any vessel or boat, from which any piratical aggression, search, restraint, depredation, or seizure, shall have been first attempted or made, shall be captured and brought into any port of the United States, the same shall and may be adjudged and condemned to their use, and that of the captors, after due process and trial, in any Court having admiralty jurisdiction, and which shall be holden for the district into which such captured vessel shall be brought; and the same Court shall thereupon order a sale and distribution thereof accordingly, and at their discretion. The Marian 1826. ther proceedings respecting the same were abandoned. The only question, therefore, litigated na Flora, in the Circuit Court, was upon the point of damages, and, ultimately, a decree was there pronounced reversing the decree for damages; and this constituted the matter of the present appeal. Pending the proceedings in the Circuit Court, leave was granted to the libellants to file a new count or allegation, in which the aggression was stated to be hostile, and with intent to sink and destroy the Alligator, and in violation of the law of nations. The facts which were given in evidence, and relied on to support the allegations in the libel, were substantially as follows: On the morning of the 5th of November, 1821, the Alligator and the Marianna Flora, were mutually descried by each other on the ocean, at the distance of about nine miles, the Alligator being on a cruize against pirates and slave traders, under the instructions of the President, and the Portuguese vessel being bound on a voyage from Bahia to Lisbon, with a valuable cargo on board. The two vessels were then steering on courses with each other, the Marianna Flora being under the lee bow of the Alligator. A squall soon afterwards came on, which occasioned an obscuration for some time. Upon the clearing up of the weather, it appeared that the Marianna Flora had crossed the point of intersection of the courses of the two vessels, and was about four miles distant on the weather bow of the AlligaSoon afterwards she shortened sail and tor. nearly at right angles hove to, having at this time a vane or flag on her 1826, mast, somewhat below the head, which, together The Marianwith her other manœuvres, induced Lieutenant na Flora. Stockton to suppose she was in distress, or wished for information. Accordingly, he deemed it his duty, upon this apparent invitation, to approach her, and immediately changed his course towards her. When the Alligator was within long shot of the Portuguese ship, the latter fired a cannon shot ahead of the Alligator, and exhibited the appearance and equipments of an armed vessel. Lieutenant Stockton immediately hoisted the United States' flag and pendant. The Marianna Flora then fired two more guns, one loaded with grape, which fell short, the other loaded with round shot, which passed over and beyond the Alligator. This conduct induced Lieutenant Stockton to believe the ship to be a piratical or a slave vessel, and he directed his own guns to be fired in return; but as they were only carronades, they did not reach her. The Alligator continued to approach, and the Marianna Flora continued firing at her at times, until she came within musket shot, and then a broadside from the Alligator produced such intimidation that the Portuguese ship almost immediately ceased firing. At that time, and not before, the Portuguese ship hoisted her national flag. Lieutenant Stockton ordered the ship to surrender, and send her boat on board, which was accordingly done. He demanded an explanation; and the statement made to him by the Portuguese master, and other officers, was, that they did not |