Decided that if the facts stated in a special plea do not amount
in law to a justification, yet if issue be joined thereon and if
the facts be proved as stated, it is error in the judge to instruct
the jury that the facts so proved do not in law maintain the issue
on the part of the defendant.
If a collector justify the detention of a vessel under the
eleventh section of the Embargo Law of 25 April, 1808, he need not
show that his opinion was correct nor that he used reasonable care
and diligence in ascertaining the facts upon which his opinion was
formed. It is sufficient that he honestly entertained the opinion
upon which he acted.
Error to the Supreme Judicial Court of the Commonwealth of
Massachusetts under the 25th section of the Judiciary Law of the
United States, vol. 1, p. 63, in an action of trespass by Watkins
against Otis, a deputy collector for the District of Barnstable,
for taking, carrying away, and destroying the plaintiff's schooner
Friendship and her cargo of codfish.
The defendant pleaded that he was a deputy collector for the
District of Barnstable; that by the 11th section of the Act of
Congress of 25 April, 1808, vol. 9, p. 150, 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 the
President of the United States be had thereupon."
That the schooner
Friendship, with her cargo, was lying
in the harbor of Provincetown, in the District of Barnstable,
ostensibly bound to some other port in the United States, in the
opinion of the collector, with an intent to violate or evade the
provisions of the acts aforesaid, whereupon the collector, by the
defendant, his deputy, caused the said vessel and her cargo to be
detained and removed from the port and harbor of Provincetown to
the port and harbor of Barnstable, that she might be securely kept,
and there also caused her to be detained, as it was lawful for him
to do, so that the decision of the President of the United States
might be had thereupon, and that the President afterwards, on 3
January, 1809, upon the report and representation of the said
collector, approved and confirmed the detention, all which is the
same taking, &c. To this plea there was a general replication
and issue, upon the trial of which a bill of exceptions was taken,
which stated that the defendant, in order to show that the
collector had reasonable ground to believe that this vessel
intended to violate or evade the embargo laws,
Page 13 U. S. 340
offered in evidence the deposition of an inspector of the
customs who testified that he went on board the schooner at
Provincetown, which was wholly laden with fish in bulk, and a
barrel of beef and a number of packages of small stores and three
or four barrels of water. That he supposed she was bound to sea and
gave information thereof, and of his suspicions, to the collector.
That she had also a number of kegs of pickled oysters on board, and
that he judged that the groceries were sufficient for the crew of
such a vessel for thirty days, and that he had no doubt of her
being bound to sea, which was the reason of his giving the
information. Upon cross-examination, he said he had never lived in
the county of Barnstable, and did not know the course and manner of
their trade and navigation. It further appeared in evidence that on
19 December, 1808, written orders were given, by the collector, to
one Andrew Garrett to detain the schooner, then lying in
Provincetown harbor, and bring her to the port of Barnstable, and
there secure her in the best manner possible. That the distance
from Provincetown to Barnstable is about 30 miles by water. That on
the voyage she accidentally ran on a point of land, and could not
be got off until she was frozen up in the ice, and there remained
until March following, when she was got off and brought up to the
wharf and her cargo unladen and safely stored. That about 70
quintals of codfish were damaged, but the residue was in good
order. That when she was so detained, she had nine barrels of water
on board, but no bread. That her sails were on shore. That on 24
December, 1808, the collector wrote to the Secretary of the
Treasury that he had detained the schooner
Friendship,
loaded with dry codfish and evidently intended for a foreign port,
as she had an unusual quantity of small stores on board sufficient
for such a voyage and fully watered, that their plea was that she
was intended for a store ship, and a neighboring market, both of
which it was sufficiently evident were without foundation. That on
3 January, the Secretary answered that the detention of the
schooner was approved and confirmed by the President. That the
collector had used due care and diligence in the preservation of
the vessel and cargo. That on the 30 January, 1809, the Secretary
of the Treasury wrote to the collector, authorizing him to release
all vessels detained by him under the
Page 13 U. S. 341
said 11th section of the act aforesaid, on bond being given, in
the manner and to the amount provided by the 2d section of the Act
of January 9, 1809. That on 15 February, 1809, the collector sent
the following written notice to the plaintiff Watkins, dated at the
custom house.
"Sir, I hereby request of you as the owner of the schooner
Friendship, of Provincetown, detained by order under the
11th section of the embargo law of 25 April, 1808, at Barnstable,
to give bond here, within three days after giving this
notification, agreeable to the second section of the act to enforce
the embargo passed on the 9th ultimo."
"I am, sir, your humble servant,"
"JOSEPH OTIS,
Collector"
But that Watkins wholly refused to give such bond. That on 21
March, 1808, the collector wrote to the Comptroller of the
Treasury, stating that on 24 December, he had detained the schooner
Friendship under the embargo law for loading with codfish
without a permit, which detention was approved and confirmed by the
President. That on the passage of the Act of 9 January, 1809, he
notified the owner that if he would give bond agreeably to the
second section of the same, he would give her up to him, which he
utterly refused to do, or to unload his vessel, for more than a
fortnight. That he wished to know whether she ought not to be
libeled.
To this letter the Comptroller replied, referring the collector
to the attorney for the district. That the vessel was afterwards
libeled in the district court, for having taking her cargo on board
in the night, without a license, and without the inspection of the
proper inspecting officers of the port. Upon trial she was
acquitted.
The plaintiff also produced a laborer who stowed the fish on
board the schooner who testified that the vessel "was destined to
Boston for a market" and that the vessel and cargo were much
injured in consequence of the detention. He also produced testimony
that it was usual for vessels going from Provincetown to take water
enough on board to last them to Boston and for two
Page 13 U. S. 342
or three weeks, because the people did not like the Boston
water. That it was usual to take eight or ten barrels on such a
voyage. Whereupon the judge who tried the cause (Chief Justice
Parsons) charged the jury
"that the several matters and things so given in evidence by the
defendant Otis did not in law maintain the issue on his part, and
also that it was the duty of the collector, as collector, to have
used reasonable care in ascertaining the facts on which to form an
opinion, and to transmit to the President a statement of those
facts for his decision."
The verdict and judgment being against the defendant, he brought
his writ of error.
Page 13 U. S. 353
LIVINGSTON, J. delivered the opinion of the Court as
follows:
This is an action of trespass brought in the Supreme Judicial
Court of the Commonwealth of Massachusetts, for taking, carrying
away and destroying a certain schooner called the
Friendship, with her cargo, belonging to the plaintiff
below.
The declaration is in common form. The defendant pleaded that,
as deputy collector for the District of Barnstable, he detained and
removed from the port and harbor of Provincetown to the port and
harbor of Barnstable the said vessel and cargo, that they might be
securely kept; the said schooner and cargo, at the time of such
detention, lying in the said harbor of Provincetown, within the
district aforesaid, ostensibly bound to some other port of the
United States, with an intent, in the opinion of the defendant, to
violate or evade the provisions of the embargo laws. He further
pleaded that he caused the said vessel to be detained so that the
decision of the President of the United States might be had
thereon, who afterwards, upon his report and representation, did
approve and confirm the said detention.
The plaintiff replies that the defendant committed the trespass
of his own wrong, and without any such cause, &c., issue being
joined thereon.
On a bill of exceptions taken to the charge of the court, the
following facts appear to have been given in evidence: that the
schooner in question, in the month of December, 1808, was lying at
Provincetown, wholly loaded with codfish. She had also a barrel of
beef, a number of small stores and groceries, with three or four
barrels of water, and a number of kegs of pickled lobsters. That an
inspector of the customs, seeing the
Friendship in this
situation and judging that the groceries were sufficient for the
crew of such a vessel for thirty days, and having no doubt of her
being bound to sea, gave information of such, his suspicions, to
the collector, who gave a written order to one Ganet to detain
Page 13 U. S. 354
and to bring her into the port of Barnstable and there secure
her in the best manner possible. That Ganet proceeded to
Provincetown with about thirty men, and removed the said vessel to
Barnstable, about ten leagues, by water, but when attempting to
come up to a wharf, she accidentally ran onto a point of land which
projected into the water, and there stuck fast. That she could not
be got off during that tide which soon left her, and the weather
was very cold, and the harbor was frozen up for a long time, so
that the schooner could not be removed. That the defendant gave
notice by letter to the Secretary of the Treasury of the United
States of the detention of said vessel, stating at the same time
his reasons for believing that "she was evidently intended for a
foreign port," which detention was approved of and confirmed by the
President. That as soon as the weather would permit, which was in
the month of March following, the defendant caused the said
schooner to be brought to a wharf, and unloaded and secured the
cargo. That about 60 or 70 quintals of fish were damaged, and the
rest in good order. There was also evidence on the part of the
plaintiff to prove that the
Friendship was actually bound
to Boston, and the extent of the injury which his property and
sustained.
The court charged the jury that the several matters and things
so given in evidence by the defendant
"did not in law maintain the issue aforesaid on his part, and
also that it was the duty of the collector, as collector, to have
used reasonable care in ascertaining the facts on which to form an
opinion and to transmit to the President a statement of those facts
for his decision."
On an exception to the charge, the cause now comes before us, it
having been removed into this Court under the 25th section of the
Judiciary Act, and whether it were correct or not is the question
which is now to be decided.
This seizure was made under the 11th section of the Act of 25 of
April, 1808, vol. 9, p. 150, which provides
"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
Page 13 U. S. 355
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."
The issue tendered by the defendant and on which the parties
went to trial was whether the vessel and cargo were detained
because, in the opinion of the defendant, she intended, although
the case of Crowell and Hawes port in the United States, to violate
or evade the provisions of the embargo laws, and whether the vessel
was removed to Barnstable that she might be securely kept until the
decision of the President was known.
If there were any evidence to prove this issue, it should have
been left to the jury to draw its own conclusions. If the defendant
had taken upon himself to say that the vessel did intend to violate
the embargo laws, and that such removal was absolutely necessary
for her secure detention, such charge would have been less
exceptionable; but that it was the opinion of the collector that
such violation was in contemplation and that such removal was for
the purpose of securing the vessel, which were the facts in issue,
might very well have been inferred by the jury from the evidence
before it. Indeed it would have been difficult for it to have come
to a different conclusion, for the collector, from the information
which he received, could scarcely fail to form the opinion he did,
and there was no evidence in the charge of the judge to cause it to
believe that she could have been removed to Barnstable, considering
the care which was taken of her during her removal and after her
arrival there, for any other purpose but for that alleged in the
plea. In this particular, then, it is the opinion of a majority of
the Court that the charge was erroneous.
The charge is deemed incorrect in another respect. The jury was
told that it was the collector's duty to have used reasonable care
in ascertaining the facts on which to form an opinion.
This instruction implies that the collector is liable if he form
an incorrect opinion or if, in the opinion of the jury, it shall
have been made unadvisedly or without reasonable care and
diligence. But the law exposes
Page 13 U. S. 356
his conduct to no such scrutiny. If it did, no public officer
would be hardy enough to act under it. If the jury believed that he
honestly entertained the opinion under which he acted, although it
might think it incorrect and formed hastily or without sufficient
grounds, he would be entitled to their protection. Such was the
opinion of this Court in the case of
Crowell
& Hawes v. McFaddon, 12 U. S.
94, decided at the last term. This does not preclude
proof on the part of the plaintiffs showing malice or other
circumstances which may impeach the integrity of the transaction.
The jury, then, were misled when its attention was drawn from the
fact whether the defendant really entertained such opinion and was
directed to inquire into the reasonable care with which it was
formed, which left it at liberty to find a verdict against the
defendant however honestly and fairly he may have acted.
It is the opinion of the Court that the judgment of the Supreme
Judicial Court of Massachusetts must, for the reasons assigned,
be
Reversed and the cause be remanded for further
proceedings.
MR. CHIEF JUSTICE MARSHALL, after stating the facts of the case,
delivered his separate opinion as follows:
As the Court can notice no other error than such as may be
founded on a misconstruction of the act of Congress under which the
defendant justified the taking and carrying away charged in the
declaration, the charge the judge can be considered so far only as
it respects that act.
The section to which the plea refers is in these words: "Be it
enacted," &c.
In construing this law it, has already been decided in this
Court that the collector is not liable for the detention of a
vessel
"ostensibly bound, with a cargo, to some other port of the
United States whenever in his 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
thereon."
For the correctness of this opinion he is not responsible. If in
truth he has formed it, his duty
Page 13 U. S. 357
obliges him to act upon it, and when the law affords him no
other guide than his own judgment and declares that judgment to be
conclusive in the case, it must constitute his protection although
it be erroneous. The legislature did not intend to expose the
collector to the hazard of being obliged to show that he had
probable cause for the opinion he had formed. If in reality he had
formed it, the law justifies him for acting upon it. If it can be
proved, either from the gross oppression of the case or from other
proper testimony, that the collector did not in fact entertain the
opinion under which he professed to act, some doubt may be
entertained of his being justified by the law; but if the opinion
avowed was real, though mistaken, a detention under that opinion is
lawful.
But the act of Congress authorizes only a detention of the
vessel, not its removal. The collector did remove the vessel from
one harbor into another, a distance of about thirty miles by water,
and in this removal the injury was sustained. As an independent
act, this proceeding is not justified by the law. It was the duty
of the collector to detain the vessel, and all acts which were
necessary as means to the end were lawful, but unless this removal
was necessary for the purpose of detention, it is not protected by
the law.
The charge of the judge will now be examined.
He instructed the jury "that the several matters and things so
given in evidence by the said William Otis did not in law maintain
the issue on his part."
If this instruction could be understood as conveying to the jury
an opinion that Otis had not justified the detention of the vessel,
the Court would feel no hesitation in pronouncing it erroneous. But
it was necessary for Otis be justify the removal as well as the
detention, and he could only justify the removal by showing that it
was necessary to a secure detention. Had he offered any testimony
whatever to this point, it might have been incumbent on the judge
to submit that testimony to the jury. But he has offered no
testimony whatever to it. This Court therefore cannot say that the
judge of the state court has erred in saying that the matters and
things
Page 13 U. S. 358
given in evidence by the said William Otis did not in law
support his plea. Certainly they did not make out a justification
under the act of Congress.
The judge further instructed the jury
"that it was the duty of the collector, as collector, to have
used reasonable care in ascertaining the facts on which to form an
opinion and to transmit to the President a statement of those facts
for his decision."
The act authorizes the collector to detain a vessel on his own
mere suspicion, "until the decision of the President of the United
States be had thereupon."
On what is the decision of the President to be had? Clearly on
the further detention of the vessel and on the future proceedings
of the collector respecting her. Whenever the President acts, he is
expected to act upon information, and from whom in this instance is
his information to be derived? Unquestionably from the collector.
The law does not indeed say in terms that the collector "shall take
reasonable care in ascertaining the facts," or that he shall
afterwards communicate those facts correctly to the President, and
if this be not a fair and necessary construction of the act, the
judge has misconstrued the law and his judgment ought to be
reversed. But it seems to be an inference which must be drawn from
the words of the law. It follows necessarily from the duties of
forming an opinion and of communicating that opinion to the
President for his decision in the case that reasonable care ought
to be used in collecting the facts to be stated to the President
and that the statement ought to be made.
I cannot say that the court of Massachusetts has erred in its
construction of the act of Congress under which the defendant
justifies the trespass alleged in the declaration.
