The Act of Congress of 9 February, 1799, authorized the seizure
on the high seas of vessels of the United States bound or sailing
to any port or place of the French Republic. This act did not
authorize the capture of a vessel sailing from a French port, and
the orders of the President of the United States to the commanders
of the armed vessels of the United States enjoining the seizure of
American vessels sailing from French ports will not protect them
from a claim for damages for the capture of a vessel coming from a
port of France.
On 9 February, 1799, an act was passed by Congress entitled "An
act further to suspend the commercial intercourse between the
United States and France and the dependencies thereof." 1 Story's
L.U.S. 558.
The first section proceeds:
"That from and after the first day of March next, no ship or
vessel owned, hired, or employed, wholly or in part by any person
resident within the United States and which shall depart therefrom
shall be allowed to proceed directly or from any intermediate port
or place to any port or place within the territory of the French
Republic or the dependencies thereof or to any place in the West
Indies or elsewhere under the acknowledged government of France or
shall be employed in any traffic or commerce with or for any person
resident within the jurisdiction or under the authority of the
French Republic. And if any ship or vessel in any voyage thereafter
commencing and before her return within the United States shall be
voluntarily carried or suffered to proceed to any French port or
place as aforesaid or shall be employed as aforesaid contrary to
the intent hereof, every such ship or vessel, together with her
cargo, shall be forfeited and shall accrue the one-half to the use
of the United States and the other half to the use of any person or
persons, citizens of the United States, who will inform and
prosecute for the same, and shall be liable to be seized, and may
be prosecuted and condemned in any circuit or district court of the
United States which shall be holden within or for the district
where the seizure shall be made. "
Page 6 U. S. 171
The fifth section enacts:
"That it shall be lawful for the President of the United States
to give instructions to the commanders of the public armed ships of
the United States to stop and examine any ship or vessel of the
United States on the high sea which there may be reason to suspect
to be engaged in any traffic or commerce contrary to the true tenor
hereof, and if upon examination it shall appear that such ship or
vessel is bound or sailing to any port or place within the
territory of the French Republic or her dependencies contrary to
the intent of this act, it shall be the duty of the commander of
such public armed vessel to seize every such ship or vessel engaged
in such illicit commerce and send the same to the nearest port in
the United States, and every such ship or vessel thus bound or
sailing to any such port or place shall, upon due proof thereof, be
liable to the like penalties and forfeitures as are provided in and
by the first section of this act."
Under the provisions of this act, the President of the United
States gave the following instructions to the commanders of the
armed vessels of the United States.
"Sir: Herewith you will receive an act of Congress further to
suspend the commercial intercourse between the United States and
France and the dependencies thereof, the whole of which requires
your attention. But it is the command of the President that you
consider particularly the fifth section as part of your
instructions and govern yourself accordingly."
"A proper discharge of the important duties enjoined on you
arising out of this act will require the exercise of a sound and
impartial judgment. You are not only to do all that in you lies to
prevent all intercourse, whether direct or circuitous, between the
ports of the United States and those of France and her dependencies
in cases where the vessels or cargoes are apparently, as well as
really, American and protected by American papers only, but you are
to be vigilant that vessels or cargoes really American, but covered
by Danish or other foreign papers, and bound to or from French
ports do not escape you. "
Page 6 U. S. 172
"Whenever, on just suspicion, you send a vessel into port to be
dealt with according to the aforementioned law, besides sending
with her all her papers, send all the evidence you can obtain to
support your suspicions and effect her condemnation."
"At the same time that you are thus attentive to fulfill the
objects of the law, you are to be extremely careful not to harass
or injure the trade of foreign nations with whom we are at peace
nor the fair trade of our own citizens."
On 2 December, 1779, the brigantine
Flying Fish was
captured near the Island of Hispaniola bound to Jeremie by the
United States frigates
Boston and
General Greene
and sent into Boston as liable to seizure under the act of
Congress.
The
Flying Fish and her cargo were owned by Samuel
Goodman, a Prussian by birth but at the time of the capture an
inhabitant of the Danish Island of St. Thomas. The master was born
in and was at the same time an inhabitant of that island, but had
for several years been employed in vessels of citizens of the
United States, speaking the English language perfectly in the
accent of an American and having the appearance of being one. The
crew were Englishmen, Portuguese, and Negroes, and the supercargo
was a Frenchman. The vessel had carried a cargo of dry goods from
Thomas to Jeremie, and was, when captured, returning with a cargo
of coffee.
The district court adjudged the vessel to be restored to the
original owners and refused damages to the claimants for the
capture and detention.
From this decree the claimants appealed to the circuit court,
where it was reversed, and $8,504 damages were given. The damages
being assessed by assessors appointed by the court, a final
sentence was pronounced, from which the captors appealed to this
Court.
Page 6 U. S. 176
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the
Court.
The
Flying, Fish, a Danish vessel, having on board
Danish and neutral property, was captured on 2 December, 1799, on a
voyage from Jeremie to St. Thomas, by the United States frigate
Boston, commanded by Captain Little and brought into the
port of Boston, where she was libeled as an American vessel that
had violated the nonintercourse law.
The judge before whom the cause was tried directed a restoration
of the vessel and cargo as neutral property, but refused to award
damages for the capture and detention because, in his opinion,
there was probable cause to suspect the vessel to be American.
On an appeal to the circuit court, this sentence was reversed
because the
Flying Fish was on a voyage from, not to, a
French port, and was therefore, had she even been an American
vessel, not liable to capture on the high seas.
Page 6 U. S. 177
During the hostilities between the United States and France, an
act for the suspension of all intercourse between the two nations
was annually passed. That under which the
Flying Fish was
condemned declared every vessel owned, hired, or employed wholly or
in part by an American which should be employed in any traffic or
commerce with or for any person resident within the jurisdiction or
under the authority of the French Republic, to be forfeited
together with her cargo, the one-half to accrue to the United
States and the other to any person or persons, citizens of the
United States, who will inform and prosecute for the same.
The fifth section of this act authorizes the President of the
United States to instruct the commanders of armed vessels
"to stop and examine any ship or vessel of the United States on
the high sea which there may be reason to suspect to be engaged in
any traffic or commerce contrary to the true tenor of the act, and
if upon examination it should appear that such ship or vessel is
bound or sailing to any or place within the territory of the French
Republic or her dependencies, it is rendered lawful to seize such
vessel and send her into the United States for adjudication."
It is by no means clear that the President of the United States,
whose high duty it is to "take care that the laws be faithfully
executed," and who is commander in chief of the armies and navies
of the United States, might not, without any special authority for
that purpose, in the then existing state of things, have empowered
the officers commanding the armed vessels of the United States to
seize and send into port for adjudication American vessels which
were forfeited by being engaged in this illicit commerce. But when
it is observed that the general clause of the first section of
the
"act, which declares that such vessels may be seized, and may be
prosecuted in any district or circuit court, which shall be holden
within or for the district where the seizure shall be made,"
obviously contemplates a seizure within the United States, and
that the fifth section gives a special authority to seize on the
high seas, and limits that authority to the seizure of vessels
bound or sailing to a French port, the legislature seem to have
prescribed
Page 6 U. S. 178
that the manner in which this law shall be carried into
execution, was to exclude a seizure of any vessel not bound to a
French port. Of consequence, however, strong the circumstances
might be which induced Captain Little to suspect the
Flying
Fish to be an American vessel, they could not excuse the
detention of her, since he would not have been authorized to detain
her had she been really American.
It was so obvious that if only vessels sailing to a French port
could be seized on the high seas, that the law would be very often
evaded that this act of Congress appears to have received a
different construction from the executive of the United States -- a
construction much better calculated to give it effect.
A copy of this act was transmitted by the Secretary of the Navy
to the captains of the armed vessels, who were ordered to consider
the fifth section as a part of their instructions. The same letter
contained the following clause:
"A proper discharge of the important duties enjoined on you
arising out of this act will require the exercise of a sound and an
impartial judgment. You are not only to do all that in you lies to
prevent all intercourse, whether direct or circuitous, between the
ports of the United States and those of France or her dependencies,
where the vessels are apparently as well as really American and
protected by American papers only, but you are to be vigilant that
vessels or cargoes really American, but covered by Danish or other
foreign papers, and bound to or from French ports, do not escape
you."
These orders, given by the executive under the construction of
the act of Congress made by the department to which its execution
was assigned, enjoin the seizure of American vessels sailing from a
French port. Is the officer who obeys them liable for damages
sustained by this misconstruction of the act, or will his orders
excuse him? If his instructions afford him no protection, then the
law must take its course, and he must pay such damages as are
legally awarded against him; if they excuse an act not otherwise
excusable, it would then be necessary to inquire whether this is a
case in which the probable cause
Page 6 U. S. 179
which existed to induce a suspicion that the vessel was
American, would excuse the captor from damages when the vessel
appeared in fact to be neutral.
I confess the first bias of my mind was very strong in favor of
the opinion that though the instructions of the executive could not
give a right, they might yet excuse from damages. I was much
inclined to think that a distinction ought to be taken between acts
of civil and those of military officers, and between proceedings
within the body of the country and those on the high seas. That
implicit obedience which military men usually pay to the orders of
their superiors, which indeed is indispensably necessary to every
military system, appeared to me strongly to imply the principle
that those orders, if not to perform a prohibited act, ought to
justify the person whose general duty it is to obey them, and who
is placed by the laws of his country in a situation which in
general requires that he should obey them. I was strongly inclined
to think that where, in consequence of orders from the legitimate
authority, a vessel is seized with pure intention, the claim of the
injured party for damages would be against that government from
which the orders proceeded, and would be a proper subject for
negotiation. But I have been convinced that I was mistaken, and I
have receded from this first opinion. I acquiesce in that of my
brethren, which is that the instructions cannot change the nature
of the transaction or legalize an act which without those
instructions would have been a plain trespass.
It becomes therefore unnecessary to inquire whether the probable
cause afforded by the conduct of the
Flying Fish to
suspect her of being an American, would excuse Captain Little from
damages for having seized and sent her into port, since had she
actually been an American, the seizure would have been
unlawful.
Captain Little, then, must be answerable in damages to the owner
of this neutral vessel, and as the account taken by order of the
circuit court is not objectionable on its face, and has not been
excepted to by counsel before the proper tribunal, this Court can
receive no objection to it.
There appears then to be no error in the judgment of the circuit
court, and it must be
Affirmed with costs.
