The fifth bill of exceptions.

The court refused the instruction, that, if the jury should find the detention of the plaintiff essential to the public interests, it was lawful for the defendant to detain him, and, for a refusal to do duty, to punish him according to the rules and regulations of the navy, with stripes not exceeding twelve, etc. In such case clearly he was liable to be detained; he was subject to the rules and discipline of the navy; he was liable to be punished for mutiny or insubordination under those rules. The Act of *30th of June, 1834, 4 Stat. at Large, [*120 712, provides, "that the said corps shall, at all times, be subject to and under the laws and regulations which are or may hereafter be established for the better government of the navy, except when detached with the army by order of the President."

The instruction refused in the sixth bill of exceptions is similar to the last, except that it was lawful for the commander in his discretion to punish, under the rules and regulations of the navy.

The seventh bill of exceptions.

essential character, is a practical power of government. It is part and parcel of the executive power, as applicable to the navy, and belonging to its officers. Without its certain exercise, there could be no authority or discipline. It is impossible that the grounds of the order should be submitted to a jury before it be known whether it is to be obeyed. Nor can they be submitted to a jury upon evidence. It would not be practicable to prove them. No one knows what those grounds are, except the officer who makes the order. They lie often within his own knowledge exclusively, and he cannot be a witness. They are often the result of his sagacity and foresight, as well as observation, and are incapable of proof. It is the greatest absurdity to suppose that an act of Congress has left it doubtful, and to be ascertained afterwards by the verdict of a jury, whether a fleet in actual service is a voluntary association, or a legally organized body under the government of law; whether the crews of a squadron are in the naval service or not; whether the commander 119*] or any of *his subordinate officers have any lawful command; or that these questions are to be decided, perhaps years afterwards, in The court, at the plaintiff's request, instructeach particular case, according to the uncertained the jury, that, if the defendant could have and varying opinions of a jury. And the securely kept and confined the plaintiff in the cruelty of it would be as great as its absurdity. Vincennes or the Peacock, with safety to the It would be a refinement of cruelty to require ships, their officers and crews, the defendant an officer to act upon a combination of circum- had no right to imprison the plaintiff in the stances incapable of proof, and upon his own fort. The breadth of the proposition is, that, knowledge, judgment, and sagacity, and then had it required the exclusive attention of every punish him for want of proof, or perhaps for officer, seaman, and marine to have kept and being wiser than twelve men ignorant upon the confined the plaintiff on board safely, the desubject. The government has a general power fendant could not justify sending the mutineer independent of the act. The true view is, that The true view is, that to the fort during the stay at the Island. The the point was decided by the government. The jury could not do otherwise than convict, under action of Commodore Jones here at home in the this instruction; because it was doubtless possipresence of the government; the payment of the ble for the commander, officers, and men safely bounty; the action of the Treasury Department to confine one man on board either of the ships, in paying the men as in the service; the ab- and save them, their officers and crews, from sence of any disapproval; the approval of the destruction. acquittal on the charge for detaining and coercing them. Whether the matter was decid- At the plaintiff's request, the court charged, ed by the President personally through the that, if the punishment was immoderate, exNavy Department, or through the commander cessive, unreasonable, disproportioned, severer of the expedition, the same result follows-the than the rules of the navy or the laws and cusdecision is conclusive upon the Judicial Depart-toms in such cases at sea authorize, the plainment. As to the rule relative to the discretion of a public officer, when it is made his duty to decide and to act, and of others to act according to that discretion. The question is an important one. It involves a great principle, essential to the powers of government. The discretion within the limits assigned to it, though in an executive officer, partakes of the character of judicial discretion. The authorities are conclusive. Drew v. Colton, 1 East, 565, in note; Seamen v. Patten, 2 Caines, 312; Vanderheyden v. Young, 11 Johns. 150;

Martin v. Mott, 12 Wheat. 19; Decatur v.
Paulding, 14 Pet. 497; Kendall v. Stokes, 3
How. 97, 98; Brashear v. Mason, 6 How. 101,


The eighth bill of exceptions.

tiff might recover. This excluded the commander from the protection of the rules and regulations for the navy. If, in the opinion of the jury, the punishment was immoderate, etc., and, though not more severe than the rules and regulations of the navy authorized, yet more severe than the laws and customs in such cases at sea authorized, they were directed to convict the defendant.

By the instructions given and withheld, the defendant was deprived

his government in every form known to the

1st. Of the benefit of showing the sanction of


the ship, as a guide to the officer exercising dis2d. Of the fundamental rule of the safety of cretionary power conferred for that end.

3d. Of the benefit of the renewed contract of

enlistment, by which the men agreed to be detained during the cruise.

The court also held, that when, in the discharge of his duty to the best of his judgment, the commander had decided to detain the men, it was to be presumed that he had acted wrong, 4th. Of the benefit of the Act of 1837, givand the burden of proof lay upon him to showing him power to detain the men abroad, after that he had acted right. In Martin v. Mott, the expiration of their terms, when the public this court lay down the contrary rule. interests require it.

121*] *5th. Of the protection of the rules | presumed that he has been guilty of an act of and regulations for the government of the navy, when acting within them.

6th. Of the discretionary use of the consular prisons, when necessary in the suppression of mutiny.

7th. Of the usual presumption in favor of the exercise of official discretion.

8th. And finally, of legal protection in the upright exercise of discretionary power conferred on him as a public officer for public ends, where the law imposed on him the duty to exercise it.

1. The commander of the exploring expedition was a public officer, intrusted with power which it was his duty to exercise, and it was his right to show on the trial that he acted by direction of his government, or with its sanction.

2. The safety of the ship or squadron was a fundamental rule to guide him in the exercise of the discretion which the law had given him. It is the law of the highest necessity.

3. After the passage of the Act of March 2d, 1837, it was competent for him to make with the men the agreement of October, 1837, that they would serve during the term of the cruise, and until the vessel should return to a port of safety in the United States.

4. Independently of this contract, he had legal power under the act to require the men thus to serve. Thus intrusted with certain power for a public object, it was his duty to exercise that power according to his view of the exigency; that is, according to his view of present circumstances, and he is protected by the law which imposed that duty, if he discharged it uprightly.

5. Whether the case be one of renewed contract, or of detention under the act, the ma rines, during the period of such service, were subject to the rules and regulations established for the government of the navy, and liable to be punished for mutiny or insubordination according to such rules and regulations, and the officer conforming to them is justified by them. 6. Within those rules and regulations he has the power of confining an offender, and as they do not limit him to any particular place of confinement, and it is admitted he may use the consular prison, it is necessarily intrusted to him to determine whether the ship's prison or the consular prison shall be used for that purpose; and if he decide that question in good faith, with pure motives, he is not answerable for any error in judgment.


infidelity to the public trust committed to him. As declared by this court in Martin v. Mott, every public officer is presumed to act in obedience to his duty, until the contrary be shown. The onus probandi does not lie on him.

Mr. Justice Woodbury delivered the opinion of the court:

The original action in this case was trespass by a marine in the exploring expedition against its commanding officer.

It will be seen, by the statement of the case, that the injury complained of was a punishment inflicted on the plaintiff by the defendant, in November, 1840, near the Sandwich Islands, for disobedience of orders, or a refusal to perform duty when directed.

The plaintiff claimed that the term for which he was bound to serve as a marine had then expired; that the defendant had no right or justification to detain him longer on board; and that, his refusal to do duty longer being the only reason, and an insufficient one, for punishing him at all, under such circumstances he was entitled to recover damages of the defendant for subjecting him to receive twelve lashes, and for a repetition of the punishment on a subsequent day, after another request and refusal by him to obey. And also, in the meantime, for putting him in irons, and confining him in a native prison on the island of Oahu.

The defendant pleaded the general issue; and by agreement of parties, any special matter was allowed to be given in evidence under that issue.

Various questions of law arose during the trial, which are presented on the record in nine separate bills of exceptions by the defendant, and one by the plaintiff. Some of them are of an ordinary character; but others possess much interest, and are important in their quences, not only to these parties, but to the government and the community at large.


In a public enterprise like the exploring expedition, specially authorized by Congress in in 1836 (see Act of Congress of 14th of May, 1836, 5 Statutes at Large, 29, sec. 2), for purpose of commerce and science, very valuable to the country, and not entirely *without [*123 interest to most of the civilized world, it was essential to secure it from being defeated by any discharge of the crews before its great objects were accomplished, or by any want of proper authority, discretionary or otherwise, in the commander, to insure, if possible, a successful issue to the enterprise.

7. If his decision may be reviewed and re- It is not to be lost sight of, however, and will versed by a jury upon the mere question of ex- be explained more fully hereafter, that, while pediency, there is neither law, reason, nor pro- the chief agent of the government, in so impriety which forbids the commander to remove portant a trust, when conducting with skill, à mutineer from the squadron to the consular fidelity, and energy, is to be protected under 122*] prison, though it *may be possible to mere errors of judgment in the discharge of his confine him in some one of the ships with safety. duties, yet he is not to be shielded from reEven in the case of a private vessel it may be sponsibility if he acts out of his authority or done, if it be safer or better to do so, or a great jurisdiction, or inflicts private injury either offense has been committed. Wilson V. The from malice, cruelty, or any species of oppresMary, Gilpin, 32; Magee v. The Moss, Ib. 233;sion, founded on considerations independent of United States v. Wickham, 1 Wash. C. C. 316; Thorne v. White, 1 Pet. Adm. 168; Abbott on Shipping, Story's ed. 137.

public ends.

The humblest seaman or marine is to be sheltered under the ægis of the law from any S. It is to be taken, prima facie, that a pub-real wrong, as well as the highest in oflice. lic officer has done his duty. It is not to be Considerations connected with these views are |

involved in most of the points ruled by the court. below.

But the first and second exceptions taken by the defendant raise incidental questions, which it may be better to dispose of separately, before proceeding to the principal points involved.

the commander, till it became probable the original terms of service of the seamen and marines would expire before the cruise ended, the Secretary of the Navy, in September, 1837, after the above act passed, and before the squadron sailed, authorized a "bounty to the petty officers, seamen, and marines," who would re

One of these questions is the propriety of rejecting a letter written by the defendant, in re-enlist and engage to serve during the term of lation to the bounty given to the seamen and marines on their re-enlisting or contracting to serve till the expedition should terminate.

As this letter related to that material transaction, and was a part of the res gestæ, it seems competent. Ridley v. Gyde, 9 Bingham, 349, 354; Hadley v. Carter, 8 N. H. 40; Aiken v. Bemis, 2 Wood. & M.

It was also official correspondence of the commander in respect to official matters, and seems to have been justifiable as evidence on that account. 1 Greenleaf on Ev. sec. 491.

The other question relates to the propriety of excluding the proceedings of a court-martial, which, after the return of Captain Wilkes, was convened, and acquitted him of this among other charges.

We think that such proceedings were not conclusive on the plaintiff here, though a bar to subsequent indictments in courts of common law for the same offense, the parties then being the same likewise, and the tribunal acquitting competent to examine and acquit. Aspden et al. v. Nixon et al. 4 How. 467; Burnham v. Webster, 1 Wood. & M. 172. And though sometimes, yet questionably, they have been deemed a bar to civil suits for damages, where the plaintiff was the prosecutor before the courtmartial for that injury. Buller, N. P. 19; Hannaford v. Hunn, 2 Carr. & Payne, 146, semble.

124*] *But here the parties were not the same, nor the plaintiff a complainant before the court-martial, and the courts of common law have jurisdiction over the wrong, though committed at sea. Warden v. Bailey, 4 Taunt. 7075; 1 McArthur on Courts-Martial, 268; Wilson v. McKenzie, 7 Hill, 95; O'Brien on 95; O'Brien on Military Law, 223, semble; Luscomb v. Prince,

12 Mass. 579.

The remaining exceptions relate first to the leading question, whether the duty of service by the plaintiff had expired when the punishment for the disobedience of orders was inflicted. It is conceded that the term of his original enlistment for four years had then terminated. But after that term commenced, in 1836, Congress passed a new law, March 2d, 1837, which is supposed to reach a case of this kind, and to have justified a contract of re-enlistment made by the plaintiff, which extended beyond the original term, and till after the punishment complained of. 5 Stat. at Large, 153.

This new law, to be sure, speaks in its title of the “enlistment of seamen;" but in the body of it provision is made as to the "service of any person enlisted for the navy."

the cruise. Thereupon many did so re-enlist and engage to serve, and among them the plaintiff, and the bounty was paid to them all on so doing, in October, 1837.

The papers admitted to show this, though excepted to by the plaintiff, we think entirely competent.

After this it would be very difficult to hold that the plaintiff had not legally become liable to serve during the cruise, instead of merely his original term of four years. Because, though marines are not, in some senses, "seamen," and their duties are in some respects different, yet they are, while employed on board public vessels, persons in the naval service, persons subject to the orders of naval officers, persons under the government of the naval code as to punishment, and persons amenable to the Navy Department. Their very name of "marines" *indicate *the place and nature of their [*125 duties generally. And, besides the analogies of their duties in other countries, their first creation here to serve on board ships expressly declared them to be a part "of the crews of each of said ships." Act of 27th March, 1794, 1 Stat. at Large, 350, sec. 4. Their pay was also to be fixed in the same way as that of the seamen. Sec. 6, p. 351.

So it was again by the Act of April 27th, 1798, 1 Stat. at Large, 552. And they have ever since been associated with the navy, except when specially detailed by the President for service in the army. See Act of Congress, 11th July, 1798, 1 Stat. at Large, 595, 596.

Thus paid, thus serving, and thus governed like and with the navy, it is certainly no forced construction to consider them as embraced in the spirit of the Act of 1837 by the description of persons "enlisted for the navy.

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The reason of the law on such occasions for re-enlistment applies with as much force to them as to ordinary seamen, because, when serving on board public vessels where their first term seems likely to expire before the cruise ends, their services may, under the public necessities, be equally needed with those of the seamen till the cruise ends; and hence all of them may rightfully re-enlist for the cruise, at any time, in anticipation of this.

Such was the construction put on this section at the time by the Navy Department and navy officers on board, by making proposals and paying a bounty to both marines and seamen who would re-enlist. But what is calculated to remove any doubts as to the justice of this view is, that such was the construction adopted by the plaintiff himself, and fully acquiesced in by his conduct in voluntarily agreeing beforehand to re-enlist for the cruise, and receiving the bounty for it, and sailing under that en

It is enacted there, that it shall be lawful to enlist persons to serve for five years, and a premium is given to such as "shall voluntarily re-enlist to serve until the return of the ves-gagement. sels." See 3d section of Act of March 2d, 1837.

In the present instance, the exploring expedition having been detained in this country by obstacles in the preparations, and a change in

He thus waived any doubt, and, proceeding to sea under such new engagements supposed to be authorized by the act of Congress, he would seem to be morally as well as legally

estopped to deny their validity, and the liabilities to duty and to punishment consequent upon them. Volenti non fit injuria.

If, however, the legal right of the commander was imperfect to require and enforce longer performance of duty under the engagements, there is another provision of the Act of March, 1837, by which it seems quite clear that, without such voluntary re-enlistment and engagement, the commander had power to detain the plaintiff after his original term expired, if, in his opinion, the public interest required it. In the second section of the law (5 Stat. at Large, 126*] 153) it is *enacted, that, “when the time of service of any person enlisted for the navy shall expire while he is on board any of the public vessels of the United States employed on foreign service, it shall be the duty of the commanding officer to send him to the United States in some public or other vessel, unless his detention shall be essential to the public interests, in which case the said officer may detain him until the vessel in which he may be serving shall return to the United States," etc., etc.

Now, considering the marines as embraced in the spirit, if not the exact letter, of this provision; for reasons heretofore assigned, connected with its language and object, and their position in conjunction with the navy, it would follow that the commander, supposing the detention of the plaintiff on board "essential to the public interests," could rightfully direct him to remain; and in the event he did so, as is averred here, the third section of the Act of 1837 provides that the plaintiff should be "subject in all respects to the laws and regulations for the government of the navy," until his return to the United States. 5 Stat. at Large,


There is still another statute, which, in our view of it, adds more strength to these conclusions. It is an act as early as June 30th, 1834 (4 Stat. at Large, 713), and by the second section it provides as to the marine corps, “that the said corps shall at all times be subject to and under the laws and regulations which are or may hereafter be established for the better government of the navy. That corps thus, in some respects, became still more closely identified with the navy. The term "the better government of the navy" need not be restricted to mere punishment, or to courts-martial, but may include any provision by law intended to secure the safety of the crew and vessel, and insure due subordination and sound discipline in any exigency of the public service. The continuance of all serving on board till the cruise ended was afterwards wisely provided for, when required "by the public interests." | The plaintiff was, therefore, bound to submit to it. He must be presumed to have known this provision before his new contract of enlistment, and before he sailed, and indeed to have known before his first enlistment that he was to be subject to any new laws which might be enacted for the better government of the navy, and hence that the defendant, after the Act of 1837 passed, could continue, under the public exigencies, to require the performance of duty by him till the cruise ended, and to punish him when disobedient-if not overstepping the limits prescribed by the naval code,

and the usages consistent therewith which prevail in maritime service. *Nor was it [*127 competent for him to object to this detention, as if retrospective in its operation, being authorized by an act passed after his first enlistment, because before that enlistment, Congress, June 30th, 1834, had enacted, as before cited, that the marine corps should be subject to and under the laws and regulations which are or may be hereafter established for the better government of the navy.

Having thus ascertained that the defendant had further jurisdiction over the plaintiff, and it being admitted that the latter refused to perform his orders, and in the language of the fourteenth article, that he disobeyed the lawful orders of his superior officer (2 Stat. at Large, 47), and this on an important subject, and under circumstances likely to extend to many more of the crew, and to end in mutiny or an abandonment of the expedition, if not suppressed with promptitude and decisive energy, the next inquiry is whether the punishment was inflicted within the license of the law.

It is not the province of the judiciary to decide on the expediency or humanity of the law, but merely its existence and the conformity or non-conformity to it by the defendant.

Where a private in the navy, therefore, is guilty of any "scandalous conduct," the commander is, by the third article of the laws for the government of the navy, authorized to inflict on him twelve lashes, without the formality of a court-martial. 2 Stat. at Large, 47.

If disobedience was not such conduct, but, under the fourteenth article, exposed the offender to severe punishment by a court-martial, the plaintiff could hardly complain that it was mitigated to only the twelve lashes which the captain was authorized to inflict without calling such a court, by article thirtieth, as well as article third (Ibid. 49), and no more stripes were given here for any one act of disobedience than the third and thirtieth articles warrant.

Nor were they accompanied by any circumstance of unusual severity or of cruelty, either in the manner or the instrument employed. After an interval of two or three days, according to the counts in the writ, as well as the proposed proof, and after explanations and exhortations to duty, and time given for reflection, followed by renewed disobedience, the same number of stripes was repeated, because deemed necessary in order to enforce duty.

After another interval for like purposes, on a subsequent day, upon a new refusal, the punishment was again inflicted, and the plaintiff thereupon returned to duty.

If precedents were needed to justify this course, it has been settled in a penal prosecution that a like act, when prohibited, *if [*128 distinctly repeated, even on the same day, constitutes a second offense, and incurs an additional penalty. Brooks qui tam v. Milliken, 3 D. & E. 509.

Again, if this disobedience could not be considered a technical offense under either of the articles already referred to, it surely is an offense in nautical service, and one of much magnitude at times, and the thirty-second article provides that all crimes committed by persons belonging to the navy, which are not specified in the foregoing articles, shall be punished ac

cording to the laws and customs in such cases | assumed, but met and discharged in the routine at sea. 2 Stat. at Large, 49.

In the discipline of the merchant service, where an act of disobedience is persisted in, and endangers the due subordination of others, the captain is justified, not only in punishing personally, but in resorting to any reasonable measures necessary to produce submission and safety. See Cobley v. Fuller, 2 Wood. & M. and cases there cited, and 9 Law Reporter, 386. Under this portion of the inquiry arises also the question as to the ruling about putting the plaintiff in irons, and about the confinement of him on shore in a prison of the natives.

This appears to have been done under the same aspect of the case, looking to the preservation of sound discipline, and the safe imprisonment of the plaintiff till he consented to return to his duties.

It appears that several other marines in the squadron were taking like insubordinate ground with the plaintiff, and that the escape of two prisoners confined on board had already been allowed; that many more appeared anxious to quit the vessels, doubtless under the seductive attractions of the islands near; that several of the officers and men were engaged at a distance in making scientific observations; and that, under such circumstances, a confinement of the plaintiff on shore for a few days might be a prudent precaution to prevent a defeat of the chief objects of the expedition.

This, therefore, without proof of malice, is not actionable, nor does it amount to putting a seaman on shore in a foreign country to desert him there, contrary to the act of Congress, as that must be done maliciously, and then is properly punishable by statute, no less than on principles of admiralty law. 4 Statutes at Large, 117, sec. 10; Abbott on Shipping, 177; Jay v. Allen, 1 Wood. & M. 268; United States v. Netcher, 1 Story, 307. But if it was only to imprison him there for a few days, and, under all the circumstances, was considered by the defendant to be with more propriety and safety than in the squadron, it was justifiable, unless 129*] accompanied by malice. *The William Harris, Ware, 367, and The Nimrod, Ib. 9; Wilson v. The Mary, Gilpin, 31; 3 Kent's Com. 182.

As to the cleanliness of the prison, the healthfulness of the food, and the general treatment while there, the evidene is contradictory,

and is not now a matter for our decision. •

The only remaining consideration, in order to dispose of all which is left in any of the exceptions, is the competency of the commander to decide on these various questions without being amenable to the plaintiff in an action at law for any mere error of judgment in the ercise of his discretion, which may have been involuntarily committed under the exigencies of the moment.

In order to settle this point correctly, it being in itself a very important one, as well as running through several of the exceptions, it will be necessary to advert to the circumstances, that Captain Wilkes was not acting here in a private capacity and for private purposes; but, on the contrary, the responsible duties he was performing were imposed on him by the government as a public officer. In the next place, those duties were not voluntarily sought or

of his honorable and gallant profession, and under high responsibilities for any omission or neglect on his part, instead of being a volunteer, as in most of the cases of collectors and sheriffs made liable. 2 Strange, 820; 6 D. & E. 443. Now, in respect to those compulsory duties, whether in re-enlisting or detaining on board, or punishing or imprisoning on shore, while arduously endeavoring to perform them in such a manner as might advance the science and commerce and glory of his country, rather than his own personal designs, a public officer, invested with certain discretionary powers, never has been, and never should be, made answerable for any injury, when acting within the scope of his authority, and not influenced by malice, corruption, or cruelty. See the cases hereafter cited.

Nor can a mandamus issue to such an officer, if he is intrusted with discretion over the subject matter. Paulding v. Decatur, 14 Peters, 497; Brashear v. Mason, 6 How. 102.

His position, in such case, in many respects, becomes quasi judicial, and is not ministerial, as in several other cases of liability by mere ministerial officers. 11 Johns. 108; Kendall v. United States, 12 Peters, 516; Decatur v. Paulding, 14 Peters, 516. And it is well settled that "all judicial officers, when acting on subjects within their jurisdiction, are exempted from civil prosecution for their acts." Evans v. Foster, 2 N. H. 377; 14 Peters, 600, App.

Especially is it proper, not only that a public officer, situated *like the defendant, [*130 be invested with a wide discretion, but be upheld in it, when honestly exercising, and not transcending it as to discipline in such remote places, on such a long and dangerous cruise, among such savage islands and oceans, and with the safety of so many lives and the respectability and honor of his country's flag in charge.

In such a critical position, his reasons for action, one way or another, are often the fruits of his own observation, and not susceptible of technical proof on his part. No review of his decisions, if within his jurisdiction, is conferred by law on either courts, or juries, or subordinates, and, as this court held in another case, it sometimes happens that "a prompt and unhesitating obedience to orders is indispensable to the complete attainment of the object." "While subordinate officers or soldiers are pausing to consider whether they ought to obey, or are scrupulously weighing the evidence of the fact upon which the commanderin-chief exercises the right to demand their services, the hostile enterprise may be accomplished without the means of resistance.

Wheaton, 30.


Hence, while an officer acts within the limits

of that discretion, the same law which gives it to him will protect him in the exercise of it. But for acts beyond his jurisdiction, or attended by circumstances of excessive severity, arising from ill-will, a depraved disposition, or vindictive feeling, he can claim no exemption,

and should be allowed none under color of his office, however elevated or however humble the victim. 2 Carr. & Payne, 158, note; 4 Taunton, 67.

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