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
WASHINGTON, J. delivered the opinion of the Court as
follows:
This is an appeal from the Supreme Judicial Court of the
Commonwealth of Massachusetts under the 25th section of the
judiciary law. The judgment complained of was rendered in an action
of trover and conversion, brought by the appellee against Joseph
Otis, Crowell and the appellant for taking and converting a
quantity of flour, the property of the appellee. The trial took
place between the appellee and appellant, Joseph Otis having died
after the commencement of the suit and the process not having been
served on Crowell. The verdict having been in favor of the
Plaintiff, the appellee, judgment was rendered thereupon in his
favor.
By a bill of exceptions taken to the charge of the court, the
following facts appear to have been given in evidence. That Bacon
having obtained from the Governor of Massachusetts such a
certificate as authorized him under a provision in one of the
embargo laws to transport a cargo of flour from some of the
southern
Page 11 U. S. 594
states to the District of Barnstable, did accordingly procure
such a cargo at Baltimore and arrived with it in the schooner
Ann, at a place called the Mudhole, in the port and
District of Barnstable, on 2 October, 1808. On the 3d of the same
month, a permit to land the cargo was granted by Joseph Otis, the
collector of the port. The day following, the vessel and cargo were
seized by Crowell, the inspector of the port. Bacon immediately
called at the collector's office to inquire into the cause of the
seizure, and was informed by Joseph Otis that he had not authorized
it. But William Otis, the deputy collector, in answer to an offer
made by Bacon to give bond and security to any amount if he would
release the vessel, said, "I have got your vessel and I will keep
her." The offer to give bond not to go anywhere with the vessel and
cargo was repeated, but William Otis refused to give her up. Bacon
then proposed to unlade the vessel and again offered bonds, which
Otis, the appellant, refused and said, "you may see the flour
landed, but you shall not have it after it is landed." The appellee
then abandoned the property to the appellant, and the next day made
a protest and abandoned before a notary public. The seizure and
detention of the vessel and cargo by Crowell is fully proved. On
the third day after the seizure, Crowell removed the vessel to Bass
River, six miles southeast of Mudhole, and on 13 October, 233
barrels and 49 half barrels of the flour were landed and delivered
to the appellee. The vessel, with the residue of the cargo, for the
conversion of which residue this suit was brought, was afterwards
carried away by persons unknown, and the cargo sold in the West
Indies.
Upon this evidence, the court charged the jury that if it
believed the evidence of the declaration of William Otis and of the
other circumstances in this case respecting the seizure and
detention of the said vessel and her cargo, it was sufficient in
point of law to maintain the issue on the part of Bacon and to
prove the conversion of the 298 barrels and 21 half-barrels of
flour which were carried off in the vessel. That the collector had
no right to detain this vessel and cargo, she having arrived at her
port of discharge and obtained a permit to unlade, and that even if
he had a right
Page 11 U. S. 595
to detain the vessel, this authority did not extent to a seizure
of the cargo, and that such seizure was of itself a conversion, and
that as the defendant Otis had failed to make out a justification,
he must be considered as a wrongdoer and chargeable to Bacon for
the value of said flour. But that if the jury should believe from
the evidence that Bacon aided or consented to the rescue and
carrying off the vessel and cargo or had by forcible or collusive
means obtained any benefit from the sale of said cargo in
consequence of said rescue, then the defendant Otis was entitled to
a verdict.
It is apparent on the face of this record that this cause in the
court below turned upon the construction of the 11th section of the
Act of Congress of 25 April, 1808, ch. 66, and the question for
this Court to decide is whether that court erred in the opinion
given to the jury upon that statute. The words of the 11th section
are
"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
opinion the intention is to violate or evade any of the provisions
of the acts laying an embargo until the decision of the President
of the United States be had thereupon."
If this section authorized the collector to seize and detain
this vessel and cargo under the circumstances in the case as
detailed in this record, then the opinion of the court below was
erroneous. If it gave no such authority, then it was clearly
right.
The power of the collector to detain is confined to a vessel
ostensibly bound with a cargo to some other port of the United
States. Can a vessel which has actually arrived at her port of
discharge and has received from the collector of the port a permit
to land her cargo be considered as a vessel ostensibly bound to
some other port of the United States? We think not. The reason for
authorizing the detention of a vessel before she has arrived at her
port of discharge does not apply to one which has actually
performed her voyage according to the stipulations of the bond
given by the owner at the port of her departure. All rational
grounds of suspicion of an intended violation of the embargo laws
is
Page 11 U. S. 596
then done away, for if such an intention at any time existed, it
would be difficult to assign to the master or owner a motive for
postponing the execution of it until after the arrival of the
vessel at her port of discharge. It is therefore scarcely to be
conceived that such a case was in the contemplation of the
legislature.
It is true that this vessel had not arrived at Yarmouth, where
her cargo was to be landed, at the time of the seizure. But it is
sufficient in the opinion of the Court that she had arrived at the
port to which she was destined and had received a permit to land.
The voyage was as much at an end in relation to the question as if
she had arrived within 100 yards of the wharf at Yarmouth. It is
therefore the unanimous opinion of this Court that there is no
error in the opinion of the court below on the construction, given
by that court of the above statute.
Other exceptions were taken, in the course of the trial of this
cause to the opinion of the court below on rejecting certain
evidence offered by the appellant. But this Court has no authority,
under the law which authorizes this appeal to notice any error
except such as appears on the face of the record and immediately
respects the questions of validity of the Constitution, treaties,
statutes, commissions, or authorities in dispute.
The opinions of the court below in relation to the evidence
offered by the appellant, even if erroneous, which we neither
affirm nor deny, have nothing to do with the construction of any
statute of the United States, and therefore they cannot be regarded
by this Court.
Judgment affirmed.
