Otis v. Bacon
11 U.S. 589

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U.S. Supreme Court

Otis v. Bacon, 11 U.S. 7 Cranch 589 589 (1813)

Otis v. Bacon

11 U.S. (7 Cranch) 589

Syllabus

DECIDED: by the eleventh section of the Act of 25 April, 1808, the collector had no right to detain a vessel and cargo after her arrival at her port of destination under a suspicion that she intended to violate the embargo, and such detention could not be justified by instructions from the Secretary of the Treasury nor by the confirmation of the President.

Error to the Supreme Judicial Court of the State of Massachusetts in a case involving the construction

Page 11 U. S. 590

of an act of Congress and the justification of an officer of the United States claiming justification under such act, the decision of the court below being against the justification thus set up.

The case was this:

Bacon, the defendant in error, having obtained permission to import a cargo of flour from Baltimore into the port of Barnstable, arrived with his cargo at a place called the Mudhole in the district and port of Barnstable on 2 October, 1808, and on the 3d obtained from Joseph Otis, the collector of the port, a permit to land the cargo. On the next day, the vessel and cargo were seized by Simeon Crowell, the inspector of the port. Bacon called at the collector's office to inquire into the cause of the seizure, and was informed by Joseph Otis, the collector, that he had not authorized it. But William Otis, the deputy collector, in answer to an offer by Bacon to give bond and security to any amount if he would release the vessel and cargo, said "I have got your vessel and I will keep her." Bacon then abandoned the property to William Otis, the Plaintiff in error, and made a protest and abandonment before a notary public. On the 3d day after the seizure, Crowell removed the vessel to Bass River, six miles southeast of the Mudhole, and on 13 October, 233 barrels and 49 half-barrels of the flour were landed and stowed in Crowell's house. The vessel and the residue of the cargo was afterwards carried away by persons unknown, and the cargo sold in the West Indies

Bacon brought his action of trover against Joseph Otis, the collector, William Otis, the deputy collector, and Simeon Crowell, the inspector. Joseph Otis died before the trial, and Crowell was never taken.

At the trial, William Otis, the Plaintiff in error, relied on the 11th section of the Act of Congress of 25 April, 1808, vol. 9, p. 150, by which it is enacted

"That the collectors of the customs be and they are hereby respectively authorized to detain any vessel ostensibly bound with a cargo to some other port of the United States whenever, in their opinions the intention is to violate or evade any of the provisions of the acts laying an embargo, until the decision of

Page 11 U. S. 591

the President of the United States be had thereupon,"

and offered in evidence certain letters from the Secretary of the Treasury containing instructions to the collector and stating that the President had confirmed the detention of the vessel; also written orders from Joseph Otis, the collector, to Crowell, the inspector, to seize the vessel and land the cargo. And also offered evidence that an unusually large quantity of flour had been imported into Barnstable about the same time, and also evidence of the declarations of the mate of the vessel the day before she was carried off, all of which evidence was rejected by the court.

The judge instructed the jury that if it believed the testimony relative to the declarations of William Otis and the other circumstances, it maintained the issue on the part of Bacon.

And also that the collector had no right under the circumstances to detain the vessel, she having arrived at her port of destination and obtained a permit to unlade.

And further that if the collector had power to detain the vessel, his authority did not extend to the seizure of the cargo, which seizure was, of itself, unlawful, and a conversion of the cargo.

And that if Bacon had been aiding in forcibly rescuing the vessel and cargo, and had obtained any benefit from it, the verdict must be for the defendant.

The defendant took a bill of exceptions, and, the verdict and judgment being against him, brought his writ of error under the 25th section of the Judiciary Act of 1789.

Page 11 U. S. 593

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