Levi Woodbury

“ They lie often within his own knowledge exclusively, and he cannot be a witness. They are often the result of his sagacity and foresight, as well as observation, and are incapable of proof. It is the greatest absurdity to suppose that an act of Congress has left it doubtful, and to be ascertained afterwards by the verdict of a jury, whether a fleet in actual service is a voluntary association, or a legally organized body under the government of law; whether the crews of a squadron are in the naval service or not; whether the commander or any of his subordinate officers have any lawful command ”

“ A refusal to go to duty is not such a disobedience of orders as necessarily implies a mutinous spirit or intent. There is a discretion in the officer to determine whether it is one of those petty offences which tend to corrupt the morals of the crew, and which may be punished by order of the commander, or of that higher grade which requires severer punishment. ”

“ The charge of the court absolutely excluded the agreement to serve during the cruise; it submitted to the jury the question which the commander was authorized by the act of Congress to decide, and by his duty as an officer required to decide. The question is one of discretion, a question of government, a mere political question. It must be decided before the person or crew could be detained. The necessity is a present one, in foreign parts. The duty is devolved on the commander to act one way or the other, to send the men home, or detain them according to that decision. ”

“ The term 'the better government of the navy' need not be restricted to mere punishment, or to courts-martial, but may include any provision by law intened to secure the safety of the crew and vessel, and insure due subordination and sound discipline in any exigency of the public service. The continuance of all serving on board till the cruise ended was afterwards wisely provided for, when required 'by the public interests.' The plaintiff was, therefore, bound to submit to it. ”

“ It is not to be lost sight of, however, and will be explained more fully hereafter, that, while the chief agent of the government, in so important a trust, when conducting with skill, fidelity, and energy, is to be protected under mere errors of judgment in the discharge of his duties, yet he is not to be shielded from responsibility if he acts out of his authority or jurisdiction, or inflicts private injury either from malice, cruelty, or any species of oppression, founded on considerations independent of public ends. ”

“ The safety of the ship or squadron was a fundamental rule to guide him in the exercise of the discretion which the law had given him. It is the law of the highest necessity.
3. After the passage of the act of March 2d, 1837, it was competent for him to make with the men the agreement of October, 1837, that they would serve during the term of the cruise, and until the vessel should return to a port of safety in the United States.
4. Independently of this contract, he had legal power under the act to require the men thus to serve. ”

“ After this it would be very difficult to hold that the plaintiff had not legally become liable to serve during the cruise, instead of merely his original term of four years. Because, though marines are not, in some senses, 'seamen,' and their duties are in some respects different, yet they are, while employed on board public vessels, persons in the naval service, persons subject to the orders of naval officers, persons under the government of the naval code as to punishment, and persons amenable to the Navy Department. ”

“ The breadth of the proposition is, that, had it required the exclusive attention of every officer, seaman, and marine to have kept and confined the plaintiff on board safely, the defendant could not justify sending the mutineer to the fort during the stay at the island. The jury could not do otherwise than convict, under this instruction; because it was doubtless possible for the commander, officers, and men safely to confine one man on board either of the ships, and save them, their officers and crews, from destruction. ”

“ Suppose that the contract of re enlistment with Jones was valid, what were Wilkes's rights under it? They must be only what Congress gave by the act providing rules and regulations for the navy. Do these authorize an imprisonment out of the ship? Let the other side show any such.
But it has been said that the act of 1837 gave to Wilkes a right to detain this man. That act relates only to seamen and boys. It does not include marines, either in the title or body of the law. Whenever any act of Congress intends to include the marine corps, it always says so. ”

“ If the master inflicts an unusual punishment, he is responsible. It is very doubtful whether he can lawfully confine a seaman in a foreign jail. The eighth article of the Constitution of the United States says, that cruel and unusual punishments shall not be inflicted; and the question whether or not a punishment is one of this forbidden class is a question of fact for a jury.
1st exception. Wilkes wished to read his own letter to the Secretary of the Navy. ”

“ The terms of re enlistment were the same as the original except in two points, namely, that it provided for a term of service in the Exploring Expedition, and for an indefinite time. Could not Congress legislate for this? They passed an act to regulate the Exploring Expedition, and the contract with Jones was in fact a contract with the United States. We say, therefore, that the chastisement which was inflicted was authorized by law. The opinion of the court below would destroy all discipline in the navy. ”

“ Because then, acts of violence being first proved, the person using them must go forward next, and show the moderation or justification of the blows used. (2 Greenleaf on Ev., sec. 99.)
The chief mistake below was in looking only to such cases as a guide. For the justification rests here on a rule of law entirely different, though well settled, and is, that the acts of a public officer on public matters, within his jurisdiction, and where he has a discretion, are to be presumed legal, till shown by others to be unjustfiable. ”

“ It is expressly made his duty to report the causes of the detention, that is, the grounds of the decision, which would be impossible unless he made it. The power to be exercised of detaining the men is expressly conferred on him. ”

“ And the defendant further gave evidence, tending to show that said plaintiff was not confined in double irons, or separately, in the said prison, but was at large within the walls of said fort; and that said fort was a comfortable place of residence, and more so than the prison of the ship in the situation in which the said ship was during the time of said improvement; and further, that defendant had reasonable cause to fear the spread of the disaffection among the said marines; and the officers knew not whom to trust at the time and times of the imprisonment aforesaid of said plaintiff ”

“ If precedents were needed to justify this course, it has been settled in a penal prosecution that a like act, when prohibited, if distinctly repeated, even on the same day, constitutes a second offence, and incurs an additional penalty. ”

“ That, about the time of the sailing of the said expedition, the pursers thereof received from the Fourth Auditor of the Treasury a communication, inquiring by what authority the said bounty had been paid to the marines, of whom one was the said plaintiff, and disallowing it in the accounts of said pursers, and requiring them to charge the same to the men on their pay accounts, and deduct the same therefrom, which said last communication was reported by said pursers to the defendant ”

“ We are not bound to prove malice. The law infers it from the acts done. 3 East, 599; 1 Greenleaf's Ev., sec. 34; 2 Greenleaf, sec. 94; 1 Sumner, 399; 2 Starkie on Ev. 904, 905.
Mr. Toucey (Attorney-General) , for the plaintiff in error.
The letter to the Secretary of the Navy and the proceedings of the court-martial, mentioned in the first and second bills of exception, were improperly ruled out. The letter was an official letter relating to public duty. The court-martial had acquitted Captain Wilkes.
The third bill of exceptions, as to the plaintiff's imprisonment in the fort. ”