MURRAY SCHOONER the law of nations; it could give no right to search a neutral. That in all cases where a seizure is made under a municipal law, probable cause is no justification, CHARMING unless it is made so by the municipal law under which the seizure is made. As to the position, that the sale was bona fide, the counsel for the claimant relied on the evidence, which came up with the transcript of the record, which was very strong and satisfactory. Upon the question whether Shattuck was a Danish subject or a citizen of the United States, it was said, that although he was born in Connecticut, yet there was no evidence that he had ever resided in the United States, since their separation from Great Britain. But it appears by the testimony that he resided in St. Thomas's during his minority, and served his apprenticeship there. That he had married into a family in that island, had resided there ever since the year 1789, had complied with the laws which enabled him to become a burgher, and had carried on business as such, and had for some years been the owner of vessels and lands. Even if by birth he had been a citizen of the United States, he had a right to expatriate himself. He had at least the whole time of his minority, in which to make his election of what country he would become a citizen. Every citizen of the United States, has a right to expatriate himself and become a citizen of any other country which he may prefer, if it be done with a bona fide and honest intention, at a proper time, and in a public manner. While we are inviting all the people of the earth to become citizens of the United States it surely does not become us to hold a contrary doctrine, and deny a similar choice to our own citizens. Circumstances may indeed shew the intention to be fraudulent and collusive, and merely for the purpose of illicit trade, &c. But such circumstances do not appear in the present case. Shattuck was fairly and bona fide domiciliated at St. Thomas's before our our disputes arose with France. The act of Congress, " further to suspend," &c. cannot, therefore, be considered as operating upon such a person. The first act to suspend the intercourse was passed on the 13th of June, 1798, vol. 4. p. 129, and expired with the end of the next session of Congress. The next act, "further to suspend." BETSY. MURRAY &c. was passed on the 9th of February, 1799, vol. 4. p. SCHOONER 244, and expired on the 3d of March, 1800. The act CHARMING upon which the present libel is founded, and which has BETSY. the same title with the last, was passed on the 27th of February, 1800, vol. 5. p. 15. All the acts are confine in their operations to persons resident within the United States, or under their protection. She was not such a: armed French vessel as comes within the description of those acts of Congress, which authorised the hostilities with France. She had only one musket, twelve ounces of powder, and twelve ounces of lead. The only evidence of further arms arises from the deposition of one M'Farlan. But he did not go on board of her till some days after the capture, and his deposition is inadmissible testimony, because he was entitled to a share of the prize money if the vessel should be condemned; and although a release from him to captain Murray appears among the papers, yet that release was not made until after the deposition was taken; and the fact is expressly contradicted by other testimony. The mere possessior. by nine Frenchmen did not constitute her an armed vessel. She was unable to annoy the commerce of the United States, which was the reason of the adjudication of this court, in the case of the Amelia, (See 1 Cra. Rep. 1. Talbot v. Seeman.). The proces verbal is no evidence of any fact but its own existence. If she had arms they ought to have been brought in, as the only competent evidence of that fact. No arms are libelled, and none appear, by the account of sales, to have been sold in Martinique. It being then a neutral unarmed vessel, captain Murray had no right to seize and send her in. A right to search a neutral arises only from a state of public known war, and not from a municipal regulation. In time of peace the flag is to be respected. Until war is declared, neutrals are not bound to take notice of it. The decrees of both the courts below have decided, that the vessel was not liable to capture. The only question is, whether the claimant is entitled to damages? Captain Murray has libelled her upon the nonintercourse act. He does not state that he seized her because she was a French armed vessel, although ne states her to be armed at the time of capture. It has also been decided by both the courts that she is Danish property. If an American vessel had been illegally captured by captain Murray, he would have been liable for damages; a fortiori in the case of a foreign vessel, where, from motives of public policy, our conduct ought not only to be just but liberal. In cases of personsl arrest, if no crime has in fact been committed, probable cause is not a justification, unless it be made so by municipal law. As in the case of Hue and Cry, he who raises it is liable if it be false. If the sheriff has a writ against A, and B is shewn to him as the person, and he arrests B instead of A, he is liable to an action of trespass at the suit of B. 1 Buls. 149. Wale v. Hill. So if he replevies wrong goods, or takes the goods of one upon a fi. fa. against another. In these cases it is no justification to the officer that he was informed, or believed he was right. He must in all cases seize at his peril. So it is with all other officers, such as those of the revenue, &c. probable cause is not sufficient to justify, unless the law. makes it a justification. If the information is at common law for the thing seized and the seizure is found to have been illegally made, the injured party must bring his action of trespass; but by the course of the admiralty, the captor, being in court, is liable to a decree against him for damages. 2 Rob. 202. (The Fabius.) The case of Wale v. Hill, in 1 Bulstrode 149, shews that where a crime has not been committed, there probable cause can be no justification. But where a crime has been committed, the party arresting cannot justify by the suspicion of others; it must be upon his own suspicion. In the case of Papillon v. Buckner, Hardr, 473, although the goods seized had been condemned by the commissioners of excise, yet it was not held to be a good justification. In 1 Dall. 182. Purviance v. Angus, it was held that an error in judgment would not excuse an illegal capture; and in Leglise v. Champante, K MURRAY 2 Str. 820, it is adjudged that probable cause of seizure will not justify the officer.* V. SCHOONER In 3d Anstruther 896, is a case of seizure of hides, where no provision was made in the law that probable cause should be a justification. This case cites 7 T. R. 53, Pickering v. Truste. For what reason do the revenue laws provide that probable cause shall be a justification, if it would be so without such a provision? In these cases the injury by improper seizures can be but small, compared with those which might arise under the non-intercourse law. Great Britain has never made probable cause, an excuse for seizing a neutral vessel for violating her municipal laws. A neutral vessel is only liable to your municipal regulations while in your territorial jurisdiction. But as soon as she gets to sea, you have lost your remedy. You cannot seize her on the high seas. Even in Great Britain, if a vessel gets out of the jurisdiction of one court of admiralty, she cannot be seized in another. It is admitted that a law may be passed authorising such a seizure, but then it becomes a question between the two rations. If the present circumstances are sufficient to raise a probable cause for the seizure, and if such probable cause is a justification, it will destroy the trade. of the Danish islands.. The inhabitants speak our language, they buy our ships, &c. It will be highly injurious to the interests of the United States; and this court will consider what cause of complaint it would furnish to the Danish nation. If a private armed vessel had made this seizure, the captain and owners would have been clearly liable on their bond, which the law obliges them to give. The object of this act of Congress, was more to prevent our vessels falling into the hands of the French, than to make it a war measure by starving the French islands. The Ch. J observed, that this case was overruled two years afterwards, in a case cited in a note to Gwillim's edition of Bac. ab.t The case cited in the note is from 12 Vin. 173. Tit. evidence. P. b. 6. in which it is said "that Lord Ch. Baron Bury, Montague and Page, against "Price, held that where an officer had made a seizure and there was an "information upon it, &c. which went in favour of the party who afterwards brings trespass; the shewing these proceedings was sufficient to excuse the officer: It was competent to make out a probable cause for "his doing the act.. Mich. 6. Geo.” 66 †The case of Leglise v. Champante was in 2 Geo. 2. That cited in the note to Bac. ab. referred to by the Ch. J. was in 6 Geo. 1. The mistake arises from the note in Gwillim's edition not mentioning the date of the case cited from Viner. Even if a Danish vessel should carry American papers and American colours, it would be no justification. In a state of peace we have no right to say they shall not use them if they please. In time of war, double papers, or throwing over papers, are probable causes of seizure, but this does not alter the property; it is no cause of condemnation. The vessel is to be restored, but without damages. The mode of ascertaining the damages adopted by the district court, is conformable to the usual practice in courts of admiralty. See Marriott's Reports; and in the same book, p. 184, in the case of the Vanderlee, liberal damages were given. In the revenue laws of the United States, vol 4. p. 391, probable cause is made an excuse for the seizure; but no such provision is, or ought to have been made in the nonintercourse law. The powers given were so liable to abuse, that the commander ought to act at his peril. The Ch. J. mentioned the case of the Sally, capt. Foy, in 2 Rob. 185. (Amer. Ed.) where a vice-admiralty had decreed, in a revenue case, that there was no probable cause of seizure. This cause came on again to be argued at this term by Dallas for the libellant, and Martin and Key for the clai mant. Dallas, as a preliminary remark, observed, that the Judge of the district court had referred to the clerk and his associates to ascertain, whether any and what salvage should be allowed. This was an improper delegation of his authority, not warranted by the practice of courts of admiralty, or by the nature of his office. Although they had not reported upon this point, yet he submitted it to the court for their consideration. After stating the facts which appeared upon the record, and such as were either admitted or proved, he divided his argument into three general points. 1. That Jared Shattuck was a citizen of the United States, at the time of capture and recapture; and there MURRAY V. SCHOONER CHARMINC BETSY. |