United States Supreme Court Church vs. Hubbart February 1, 1804 Facts

United States Supreme Court
Church vs. Hubbart

February 1, 1804
FACTS:
John Barker Church, Jun. instituted an action against the defendant on two
policies of insurance, whereby he had caused to be insured twenty dollars upon the
cargo of the brigantine Aurora, Shaler, from New York, to one or two Portuguese
ports on the coast of Brazil and from then back to New York. The destination of the
vessel after she left Rio Janeiro was by order of the plaintiff to be kept secret. Mr.
Church was arrested and the Aurora and the vessel were taken possession of by a
body of armed men and carried into Para. The trade to Para was prohibited. The
vessel and the cargo were condemned by the governor of the capital of Para as
having been seized for illicit trade. The loss for which the defendant, as an insurer,
was not liable, according to the exception in both policies. To prove that the trade to
Para was illicit, the defendant offered a copy of a law of Portugal entitled “a law by
which foreign vessels are prohibited from entering the ports of India, Brazil, Guiana
and Islands and other provinces of Portugal”. The terms of this law expressly
prohibit the trade and subject the vessel and cargo, violating its provisions, to
seizure and forfeiture, and the persons engaged in the same to the punishment of
death. It is contended that this vessel was not within the Portuguese dominions, and
therefore not in violation of any of their laws. It falls within the meaning and true
intent of the exceptions in the policies, viz. ‘that the insurers should not be liable for
seizure by the Portuguese for illicit trade,’ and that you ought to find for the
defendant. That the circuit court erred. The words themselves are not essentially
variant from each other. The unlawfulness of the voyage was perfectly understood
by both parties.
ISSUE:
Whether or not the brig Aurora and cargo (insured by these policies) were
seized by the Portuguese for (or on account of) illicit trade.
RULING:
In Church v. Hubbart (1804) 6 U.S. 187, the Supreme Court observed

that even an attempt to violate the law injures the state. Any attempt to violate the
laws made to protect this right, is an injury to itself which it may prevent, and it has
a right to use the means necessary for its prevention. These means do not appear to
be limited within any certain marked boundaries, which remain the same at all
times and in all situations. If they are such as unnecessarily to vex and harass
foreign lawful commerce, foreign nations will resist their exercise. If they are such
as are reasonable and necessary to secure their laws from violation, they will be
submitted to.
Chief Justice Marshall writing for the Court in Church v. Hubbart, said:
"In different seas and on different coasts, a wider or more contracted range,
in which to exercise the vigilance of the government, will be assented to. Thus in the
channel, where a very great part of the commerce to and from all the north of
Europe, passes through a very narrow sea, the seizure of vessels on suspicion of
attempting an illicit trade, must necessarily be restricted to very narrow limits, but
on the coast of South America, seldom frequented by vessels but for the purpose of
illicit trade, the vigilance of the government may be extended somewhat further;
and foreign nations submit to such regulations as are reasonable in themselves, and
are really necessary to secure that monopoly of colonial commerce, which is claimed
by all nations holding distant possessions."
U.S. Supreme Court
The Marianna Flora, 24 U.S. 11 Wheat. 1 1 (1826)
The Marianna Flora
24 U.S. (11 Wheat.)
FACTS:
On the morning of 5 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 cruise 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 nearly at right angles 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 Alligator. Soon afterwards, she
shortened sail and hove to, having at this time a vane or flag on her mast, somewhat
below the head, which, together with her other maneuvers, induced Lieutenant
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 know him to be an
American ship of war, but took him to be a piratical cruiser. Under these
circumstances, without much examination of the papers or the voyage of the ship,
Lieutenant Stockton determined to send her into the United States on account of
this, which he deemed a piratical aggression. She was accordingly manned and sent,
with her officers and crew, under the orders of Lieutenant Abbot, into Boston.
ISSUE:
Where damages have been given or refused on restitution.
RULING:
The question upon which damages must depend, is not whether he might not
have released the ship, but, whether he was, at all events, bound so to do; and
whether that obligation was so imperative, that the omission ought to be visited
with damages.
To consider the real difficulties of Lieutenant Stockton's situation. An attack

had been made upon a national ship under his command without cause. It was a
hostile act, an indignity to the nation, and a trespass upon its rights and sovereignty.
It was not an accidental, but a meditated act; not necessarily carrying own excuse
along with it, but susceptible of different interpretations. It was not an affair in
which he was at liberty to consult his own wishes or honour merely, although a
brave and distinguished officer might naturally feel some solicitude to preserve his
high reputation untarnished in the eyes of his government. He was bound to look to
the rights of his country. He might well hesitate in assuming the arbitration of
national wrongs. He might well feel a scrupulous delicacy in undertaking to waive
any claim which the government had authority to enforce, or to defeat any redress
which it might choose to seek, or to prevent any inquiries which, through its
established tribunals, it might think fit to institute, in respect to his conduct, or that
of the offending vessel. Considerations of this nature could not but weight heavily
upon the mind of a gallant officer; and they are not unfit to be entertained by this
Court in forming its own judgment.

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United States Supreme Court Church vs. Hubbart February 1, 1804 Facts

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United States Supreme Court

Church vs. Hubbart

In Church v. Hubbart (1804) 6 U.S. 187, the Supreme Court observed

He demanded an explanation, and the statement made to him by the

Where damages have been given or refused on restitution.

To consider the real difficulties of Lieutenant Stockton's situation. An attack

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