The Charming Betsey, an American merchant vessel,
sailed from Baltimore on 10 April, 1800, under the name of
The
Jane, for St. Bartholomew with a cargo of flour, and
afterwards proceeded to St. Thomas, where she was sold to J.S., who
was born in the United States and while an infant removed to St.
Thomas, of which place he became a burgher, and there carried on
trade as a merchant, married there, and in 1797 took an oath of
allegiance to Denmark. J.S. put a cargo on board of the schooner,
calling her
The Charming Betsey, and cleared her out for
Guadaloupe. She was captured by a French privateer and ordered for
Guadaloupe as prize, and was recaptured by the American frigate
Constellation, Murray commander, and carried into
Martinique, where the cargo was sold and the vessel was brought to
the United States; the vessel and cargo being considered as having
violated the law of the United States prohibiting intercourse
between the United States and France, and the sale to J.S. asserted
to be a cover to evade the law.
Held that the recapture
was illegal.
An act of Congress ought never to be construed to violate the
law of nations if any other possible construction remains, and
consequently can never be construed to violate neutral rights or to
affect neutral commerce further than is warranted by the law of
nations as understood in this country.
The cases cited at the bar and the arguments drawn from the
general conduct of the United States seem completely to establish
the principle that an American citizen may acquire in a foreign
country the commercial privileges attached to his domicile and be
exempted from the operation of an act of Congress expressed in
general terms.
The American citizen who goes into a foreign country, although
he owes local and temporary allegiance to that country, yet if he
performs no other act changing his condition, is entitled to the
protection of his own government, and if, without the violation of
any municipal law, he should be oppressed, he would have a right to
claim that protection and the interposition of his government in
his favor.
Where the report of persons appointed to ascertain and assess
damages for a marine trespass gave a gross sum, unaccompanied by
explanations, to be paid by the captors who had made an illegal
capture, the report was set aside. The omission of the appellant to
except to the report does not cure an error apparent on the face of
the record, and the omission to give the explanations is such an
error.
A public officer entrusted to perform a duty on the high seas
necessary to the service of his country and acting according to the
best of his judgment under the orders he has received, if he is the
victim of any mistake ought never to be assessed with vindictive
damages. It is not only the duty of the court to relieve him from
such damages, but no sentence should be affirmed where from the
nature of the proceedings the whole case appears on the record
unless those proceedings are such as to show on what the decree has
been founded and to support that decree.
In the District Court of Pennsylvania a libel was filed by
Alexander Murray, Esq., for himself and others, against the
schooner
Charming Betsy founded on the Act of Congress
passed 27 February, 1800, 1 Story's Laws 718, entitled "An act to
suspend the commercial intercourse between the United States and
France and the dependencies thereof." The libel states that the
schooner sailed from Baltimore after the passing of that act,
owned, hired, and employed by persons resident within the United
States or by citizens thereof resident elsewhere, bound to
Guadaloupe, and was taken on the high seas on 1 June, 1800, by the
libellant, then commander of the public armed ship the
Constellation, pursuant to instructions given to him by
the President of the United States, there being reason to suspect
her to be engaged in a traffic or commerce contrary to the said
act, &c.
The facts of the case are stated by the district judge in his
decree as follows:
Page 6 U. S. 65
On or about 10 April, 1800, the schooner, now called the
Charming Betsy but then called the
Jane, sailed
from Baltimore in the District of Maryland, an American bottom duly
registered according to law, belonging to citizens of and resident
in, the United States and regularly documented with American
papers; she was laden with a cargo belonging to citizens of the
United States; her destination was first to St. Bartholomew, where
the captain had orders to effect a sale of both vessel and cargo,
but if a sale of the schooner could not be effected at St.
Bartholomew, which was to be considered the "primary object" of the
voyage, the captain was to proceed to St. Thomas with the vessel
and such part of the flour as should be unsold, where he was to
accomplish the sale. Although a sale of the cargo, consisting
chiefly of flour, was effected at St. Bartholomew, yet the vessel
could not there be advantageously disposed of, and the captain
proceeded, according to his instructions, to St. Thomas, where a
bona fide sale was accomplished by captain James Phillips
on behalf of the American owners for a valuable consideration to a
certain Jared Shattuck, a resident merchant in the Island of St.
Thomas.
Jared Shattuck was born in Connecticut before the American
Revolution, and he had removed long before any differences with
France, in his early youth, to the Island of St. Thomas, where he
served his apprenticeship, intermarried, opened a house of trade,
owned sundry vessels, and, as was said, lands, which none but
Danish subjects were competent to hold and possess. About the year
1796, he became a Danish burgher, invested with the privileges of a
Danish subject and owing allegiance to his Danish Majesty.
Page 6 U. S. 66
It did not appear that Jared Shattuck ever returned to the
United States to resume citizenship, but constantly resided and had
his domicile both before and at the time of the purchase of the
schooner
Jane at St. Thomas. Although the schooner was
armed and furnished with ammunition on her sailing from Baltimore,
and the cannon, arms and stores were sold to Jared Shattuck by a
contract separate from that of the vessel, she was chiefly
dismantled of these articles at St. Thomas, a small part of the
ammunition, and a trifling part of the small arms excepted. The
name of the schooner was at St. Thomas changed to that of the
Charming Betsy, and she was documented with Danish papers
as the property of Jared Shattuck. So, being the
bona fide
property of Jared Shattuck, she took in a cargo belonging to him,
and no other, as appeared by the papers found on board and
delivered to this Court.
She sailed with the said cargo from St. Thomas on or about 25
June, 1800, commanded by a certain Thomas Wright, a Danish burgher,
and navigated according to the laws of Denmark, for aught that
appeared to the contrary, bound to the Island of Guadaloupe.
On or about 1 July last, 1800, she was captured on her passage
to Guadaloupe by a French privateer, and a prize master and seven
or eight hands put on board, the Danish crew (except captain Wright
an old man and two boys), being taken off by the French privateer.
On the 3d of the same July, she was boarded and taken possession of
by some of the officers and crew of the
Constellation
under the orders of Captain Murray, and sent into the port of St.
Pierre, in Martinique, where she arrived on the 5th of the same
month of July.
Page 6 U. S. 67
The Danish papers were on board, and except a
process
verbal formed by the French, there were no other papers
found.
The instructions of the President of the United States to
Captain Murray comprehended the case of a vessel found in the
possession of the French captors, but they seemed to intend a
vessel belonging to citizens of the United States.
It did not appear that Captain Murray had any knowledge of Jared
Shattuck's being a native of Connecticut or of the United States
until so informed in Martinique.
The cargo of the schooner was sold by order of Captain Murray at
Martinique, and she was ordered to the United States for
adjudication. After her arrival in the port of Philadelphia, a
libel was filed in the district court.
Page 6 U. S. 68
A claim to the vessel was filed by Jared Shattuck, and he also
claimed damages for the capture and for the sale of the cargo at
Martinique.
Page 6 U. S. 69
The district judge ordered the vessel to be restored, and in his
decree proceeded to order the amount of sales of the cargo to be
paid to the claimant or his lawful agent, together with costs and
such damages as shall be assessed by the clerk of the court, who
was directed to inquire into and report the amount thereof. And for
this purpose the clerk was directed to associate with himself two
intelligent merchants of the district, and duly inquire what damage
Jared Shattuck, the owner of the schooner
Charming Betsy
and her cargo, had sustained by reason of the premises. Should it
be the opinion of the clerk and the assessors associated with him
that the officers and crew of the
Constellation benefited
the owner of the
Charming Betsy by the rescue from the
French captors, they should allow, in the adjustment, reasonable
compensation for this service.
On 15 May following, upon the report of the clerk and assessors,
a final decree was entered for $20,594.16 damages, with costs.
From this decree the libellant appealed to the circuit court,
which adjudged
"That the decree of the district court be affirmed so far as it
directs restitution of the vessel and payment to the claimant of
the net proceeds of the sale of the cargo in Martinique, deducting
the cost and charges there, according to the account exhibited by
Captain Murray's agent, being one of the exhibits in this cause,
and that the said decree be reversed for the residue, each party to
pay his own costs, and one moiety of the custody and wharfage bills
for keeping the vessel until restitution to the claimant."
From this decree both parties appealed to the Supreme Court.
Page 6 U. S. 115
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the
Court.
The Charming Betsy was an American built vessel
belonging to citizens of the United States and sailed from
Baltimore, under the name of
The Jane, on 10 April, 1800,
with a cargo of flour for St. Bartholomew; she was sent out for the
purpose of being sold. The cargo was disposed of at St.
Bartholomew, but finding it impossible to sell the vessel at that
place, the captain proceeded with her to the Island of St. Thomas,
where she was disposed of to Jared Shattuck, who changed her name
to that of
The Charming Betsy, and
Page 6 U. S. 116
having put on board her a cargo consisting of American produce,
cleared her out as a Danish vessel for the Island of
Guadaloupe.
On her voyage she was captured by a French privateer, and eight
hands were put on board for the purpose of taking her into
Guadaloupe as a prize. She was afterwards recaptured by Captain
Murray, commander of the
Constellation frigate, and
carried into Martinique. It appears that the captain of the
Charming Betsy was not willing to be taken into that
island, but when there, he claimed to have his vessel and cargo
restored as being the property of Jared Shattuck, a Danish
burgher.
Jared Shattuck was born in the United States, but had removed to
the Island of St. Thomas while an infant, and was proved to have
resided there ever since the year 1789 or 1790. He had been
accustomed to carry on trade as a Danish subject, had married a
wife and acquired real property in the island, and also taken the
oath of allegiance to the Crown of Denmark in 1797.
Considering him as an American citizen who was violating the law
prohibiting all intercourse between the United States and France or
its dependencies or the sale of the vessel as a mere cover to evade
that law, Captain Murray sold the cargo of the
Charming
Betsy, which consisted of American produce, in Martinique, and
brought the vessel into the port of Philadelphia, where she was
libeled under what is termed the nonintercourse law. The vessel and
cargo were claimed by the consul of Denmark as being the
bona
fide property of a Danish subject.
This cause came on to be heard before the Judge for the District
of Pennsylvania, who declared the seizure to be illegal and that
the vessel ought to be restored and the proceeds of the cargo paid
to the claimant or his lawful agent, together with costs, and such
damages as should be assessed by the clerk of the court, who was
directed to inquire into and report the amount thereof, for which
purpose he was also directed to associate with himself two
intelligent merchants of the district and duly inquire what damage
Jared Shattuck had sustained by reason of the premises. If they
should be of opinion that the
Page 6 U. S. 117
officers of the
Constellation had conferred any benefit
on the owner of the
Charming Betsy by rescuing her out of
the hands of the French captors, they were in the adjustment to
allow reasonable compensation for the service.
In pursuance of this order, the clerk associated with himself
two merchants and reported that, having examined the proofs and
vouchers exhibited in the cause, they were of opinion that the
owner of the vessel and cargo had sustained damage to the amount of
$20,594.16, from which is to be deducted the sum of $4,363.86, the
amount of moneys paid into court arising from the sales of the
cargo, and the further sum of $1,300, being the residue of the
proceeds of the said sales remaining to be brought into court,
$5,663.86. This estimate is exclusive of the value of the vessel,
which was fixed at $3,000.
To this report an account is annexed, in which the damages,
without particularizing the items on which the estimate was formed,
were stated at $14,930.30.
No exceptions having been taken to this report, it was
confirmed, and by the final sentence of the court Captain Murray
was ordered to pay the amount thereof.
From this decree an appeal was prayed to the circuit court,
where the decree was affirmed so far as it directed restitution of
the vessel and payment to the claimant of the net proceeds of the
sale of the cargo in Martinique, and reversed for the residue.
From this decree each party has appealed to this Court.
It is contended on the part of the captors in substance,
1. That the vessel
Charming Betsy and cargo are
confiscable under the laws of the United States. If not so,
2. That the captors are entitled to salvage. If this is against
them,
3. That they ought to be excused from damages,
Page 6 U. S. 118
because there was probable cause for seizing the vessel and
bringing her into port.
1. Is the
Charming Betsy subject to seizure and
condemnation for having violated a law of the United States?
The libel claims this forfeiture under the act passed in
February, 1800, further to suspend the commercial intercourse
between the United States and France and the dependencies
thereof.
That act declares "that all commercial intercourse," &c. It
has been very properly observed in argument that the building of
vessels in the United States for sale to neutrals in the islands
is, during war, a profitable business which Congress cannot be
intended to have prohibited unless that intent be manifested by
express words or a very plain and necessary implication.
It has also been observed that an act of Congress ought never to
be construed to violate the law of nations if any other possible
construction remains, and consequently can never be construed to
violate neutral rights or to affect neutral commerce further than
is warranted by the law of nations as understood in this
country.
These principles are believed to be correct, and they ought to
be kept in view in construing the act now under consideration.
The first sentence of the act which describes the persons whose
commercial intercourse with France or her dependencies is to be
prohibited names any person or persons resident within the United
States or under their protection. Commerce carried on by persons
within this description is declared to be illicit.
From persons the act proceeds to things, and declares explicitly
the cases in which the vessels employed in this illicit commerce
shall be forfeited. Any vessel owned, hired, or employed wholly or
in part by any person residing within the United States or by any
citizen thereof residing elsewhere which shall perform certain
Page 6 U. S. 119
acts recited in the law becomes liable to forfeiture. It seems
to the Court to be a correct construction of these words to say
that the vessel must be of this description, not at the time of the
passage of the law, but at the time when the act of forfeiture
shall be committed. The cases of forfeiture are
1. A vessel of the description mentioned, which shall be
voluntarily carried or shall be destined or permitted to proceed to
any port within the French Republic. She must, when carried or
destined or permitted to proceed to such port, be a vessel within
the description of the act.
The second class of cases are those where vessels shall be sold,
bartered, entrusted, or transferred for the purpose that they may
proceed to such port or place. This part of the section makes the
crime of the sale dependent on the purpose for which it was made.
If it was intended that any American vessel sold to a neutral
should, in the possession of that neutral, be liable to the
commercial disabilities imposed on her while she belonged to
citizens of the United States, such extraordinary intent ought to
have been plainly expressed, and if it was designed to prohibit the
sale of American vessels to neutrals, the words placing the
forfeiture on the intent with which the sale was made ought not to
have been inserted.
The third class of cases are those vessels which shall be
employed in any traffic by or for any person resident within the
territories of the French Republic or any of its dependencies.
In these cases too the vessels must be within the description of
the act at the time the fact producing the forfeiture was
committed.
The
Jane having been completely transferred in the
Island of St. Thomas by a
bona fide sale to Jared
Shattuck, and the forfeiture alleged to have accrued on a fact
subsequent to that transfer, the liability of the vessel to
forfeiture must depend on the inquiry whether the purchase was
within the description of the act.
Jared Shattuck having been born within the United
Page 6 U. S. 120
States, and not being proved to have expatriated himself
according to any form prescribed by law, is said to remain a
citizen, entitled to the benefit and subject to the disabilities
imposed upon American citizens, and therefore to come expressly
within the description of the act which comprehends American
citizens residing elsewhere.
Whether a person born in the United States or becoming a citizen
according to the established laws of the country can divest himself
absolutely of that character otherwise than in such manner as may
be prescribed by law is a question which it is not necessary at
present to decide. The cases cited at bar and the arguments drawn
from the general conduct of the United States on this interesting
subject seem completely to establish the principle that an American
citizen may acquire in a foreign country the commercial privileges
attached to his domicile, and be exempted from the operation of an
act expressed in such general terms as that now under
consideration. Indeed the very expressions of the act would seem to
exclude a person under the circumstances of Jared Shattuck. He is
not a person under the protection of the United States. The
American citizen who goes into a foreign country, although he owes
local and temporary allegiance to that country, is yet, if he
performs no other act changing his condition, entitled to the
protection of our government, and if, without the violation of any
municipal law, he should be oppressed unjustly, he would have a
right to claim that protection, and the interposition of the
American government in his favor would be considered a justifiable
interposition. But his situation is completely changed where by his
own act he has made himself the subject of a foreign power.
Although this act may not be sufficient to rescue him from
punishment for any crime committed against the United States, a
point not intended to be decided, yet it certainly places him out
of the protection of the United States while within the territory
of the sovereign to whom he has sworn allegiance, and consequently
takes him out of the description of the act.
It is therefore the opinion of the Court that the
Page 6 U. S. 121
Charming Betsy with her cargo, being at the time of her
recapture the
bona fide property of a Danish burgher, is
not forfeitable in consequence of her being employed in carrying on
trade and commerce with a French island.
The vessel not being liable to confiscation, the Court is
brought to the second question, which is
2. Are the recaptors entitled to salvage?
In the case of
The Amelia,
4 U. S. 34, it was
decided on mature consideration that a neutral armed vessel in
possession of the French might, in the then existing state of
hostilities between the two nations, be lawfully captured, and if
there were well founded reasons for the opinion that she was in
imminent hazard of being condemned as a prize, the recaptors would
be entitled to salvage. The Court is well satisfied with the
decision given in that case, and considers it as a precedent not to
be departed from in other cases attended with circumstances
substantially similar to those of the
Amelia. One of these
circumstances is that the vessel should be in a condition to annoy
American commerce.
The degree of arming which should bring a vessel within this
description has not been ascertained, and perhaps it would be
difficult precisely to mark the limits the passing of which would
bring a captured vessel within the description of the acts of
Congress on this subject. But although there may be difficulty in
some cases, there appears to be none in this. According to the
testimony of the case, there were on board but one musket, a few
ounces of powder, and a few balls. The testimony respecting the
cutlasses is not considered as showing that they were in the vessel
at the time of her recapture. The capacity of this vessel for
offense appears not sufficient to warrant the capture of her as an
armed vessel. Neither is it proved to the satisfaction of the Court
that the
Charming Betsy was in such imminent hazard of
being condemned as to entitle the recaptors to a salvage.
Page 6 U. S. 122
It remains to inquire whether there was in this case such
probable cause for sending in the
Charming Betsy for
adjudication as will justify Captain Murray for having broken up
her voyage and excuse him from the damages sustained thereby.
To effect this, there must have been substantial reason for
believing her to have been at the time wholly or in part an
American vessel, within the description of the act, or hired or
employed by Americans, or sold, bartered, or trusted for the
purpose of carrying on trade to some port or place belonging to the
French Republic.
The circumstances relied upon are principally,
1. The
proces verbal of the French captors.
2. That she was an American built vessel.
3. That the sale was recent.
4. That the captain was a Scotchman, and the muster roll showed
that the crew were not Danes.
5. The general practice in the Danish islands of covering
neutral property.
1. The proces verbal contains an assertion that the mate
declared that he was an American, and that their flag had been
American, and had been changed during the cruise to Danish, which
declaration was confirmed by several of the crew.
If the mate had really been an American, the vessel would not on
that account have been liable to forfeiture, nor should that fact
have furnished any conclusive testimony of the character of the
vessel. The
proces verbal, however, ought for several
reasons to have been suspected. The general conduct of the French
West India cruisers, and the very circumstance of declaring that
the Danish colors were made during the chase, were sufficient to
destroy the credibility of the
proces verbal. Captain
Murray ought not to have believed that an American vessel trading
to a French port in the assumed character of a Danish bottom would
have been without Danish colors.
Page 6 U. S. 123
That she was an American vessel and that the sale was recent
cannot be admitted to furnish just cause of suspicion, unless the
sale of American built vessels had been an illegal or an unusual
act.
That the captain was a Scotchman and that the names of the crew
were not generally Danish are circumstances of small import when it
is recollected that a very great proportion of the inhabitants of
St. Thomas are British and Americans.
The practice of covering American property in the islands might
and would justify Captain Murray in giving to other causes of
suspicion more weight than they would otherwise be entitled to, but
cannot be itself a motive for seizure. If it was, no neutral vessel
could escape, for this ground of suspicion would be applicable to
them all.
These causes of suspicion, taken together, ought not to have
been deemed sufficient to counterbalance the evidence of fairness
with which they were opposed. The ship's papers appear to have been
perfectly correct, and the information of the captain,
uncontradicted by those belonging to the vessel who were taken with
him, corroborated their verity. No circumstance existed which ought
to have discredited them. That a certified copy of Shattuck's oath
as a Danish subject was not on board is immaterial, because, being
apparently on all the papers a burgher, and it being unknown that
he was born in the United States, the question whether he had
ceased to be a citizen of the United States could not present
itself.
Nor was it material that the power given by the owners of the
vessel, to their captain to sell her in the West Indies was not
exhibited. It certainly was not necessary to exhibit the
instructions under which the vessel was acquired when the fact of
acquisition was fully proved by the documents on board and by other
testimony.
Although there does not appear to have been such cause to
suspect the
Charming Betsy and her cargo to have been
American as would justify Captain Murray in bringing her in for
adjudication, yet many other circumstances combine with the
fairness of his character to produce
Page 6 U. S. 124
a conviction that he acted upon correct motives, from a sense of
duty, for which reason this hard case ought not to be rendered
still more so by a decision in any respect oppressive.
His orders were such as might well have induced him to consider
this as an armed vessel within the law, sailing under authority
from the French Republic, and such too as might well have induced
him to trust to very light suspicions respecting the real character
of a vessel appearing to belong to one of the neutral islands. A
public officer entrusted on the high seas to perform a duty deemed
necessary by his country, and executing according to the best of
his judgment the orders he has received, if he is a victim of any
mistake he commits, ought certainly never to be assessed with
vindictive or speculative damages. It is not only the duty of the
court to relieve him from such when they plainly appear to have
been imposed on him, but no sentence against him ought to be
affirmed where, from the nature of the proceedings, the whole case
appears upon the record, unless those proceedings are such as to
show on what the decree has been founded, and to support that
decree.
In the case at bar, damages are assessed as they would be by the
verdict of the jury, without any specifications of items which can
show how the account was made up or on what principles the sum
given as damages was assessed. This mode of proceeding would not be
approved of if it was even probable from the testimony contained in
the record that the sum reported by the commissioners of the
district court was really the sum due. The district court ought not
to have been satisfied with a report giving a gross sum in damages,
unaccompanied by any explanation of the principles on which that
sum was given. It is true Captain Murray ought to have excepted to
this report. His not having done so, however, does not cure an
error apparent upon it, and the omission to show how the damages
which were given had accrued, so as to enable the judge to decide
on the propriety of the assessment of his commissioners, is such an
error.
Although the Court would in any case disapprove of this mode of
proceeding, yet in order to save the parties the costs of further
prosecuting this business in the circuit
Page 6 U. S. 125
court, the error which has been stated might have been passed
over had it not appeared probable that the sum for which the decree
of the district court was rendered is really greater than it ought
to have been according to the principles by which the claim should
be adjusted.
This Court is not, therefore, satisfied with either the decree
of the district or circuit court, and has directed me to report the
following decree:
DECREE OF THE COURT.
This cause came on to be heard on the transcript of the record
of the circuit court and was argued by counsel, on consideration
whereof it is adjudged, ordered, and decreed as follows, to-wit,
that the decree of the circuit court, so far as it affirms the
decree of the district court which directed restitution of the
vessel, and payment to the claimant of the net proceeds of the sale
of the cargo in Martinique, deducting the costs and charges there,
according to amount exhibited by Captain Murray's agent, being one
of the exhibits in the cause, and so far as it directs the parties
to bear their own costs, be affirmed, and that the residue of the
said decree, whereby the claim of the owner to damages for the
seizure and detention of his vessel was rejected, be reversed.
And the Court, proceeding to give such further decree as the
circuit court ought to have given, doth further adjudge, order, and
decree that so much of the decree of the district court as adjudges
the libellant to pay costs and damages be affirmed, but that the
residue thereof, by which the said damages are estimated at
$20,594.16 and by which the libellant was directed to pay that sum,
be reversed and annulled. And this Court does further order and
decree that the cause be remanded to the circuit court with
directions to refer it to commissioners to ascertain the damages
sustained by the claimants in consequence of the refusal of the
libellant to restore the vessel and cargo at Martinique and in
consequence of his sending her into a port of the United States for
adjudication, and that the said commissioners be instructed to take
the actual prime cost of the cargo and vessel, with interest
thereon, including
Page 6 U. S. 126
the insurance actually paid and such expenses as were
necessarily sustained in consequence of bringing the vessel into
the United States as the standard by which the damages ought to be
measured. Each party to pay his own costs in this Court and in the
circuit court. All which is ordered and decreed accordingly.
