the facts and circumstances, and the whole evidence, that it would have been unsafe to confine the said plaintiff on board the said ship, and that the said fort was under the charge of a governor who spoke English, and was used as the place of confinement for the seamen of the merchant service, of this and other countries, in the said island; that the sergeant of marines was the officer in command of said marines and the plaintiff on board the said ship. and was also their quartermaster; and that it was his duty to report to the defendant the situation of the said marines, from time to time, and to look after their comfort; and that the said sergeant of marines visited the said fort while said plaintiff was cofined there, and made no report to the defendant; that the prisons of the said fort had no doors to them, and the said plaintiff was kept as other prisoners were, and that they were again brought on board the said ship so soon as they could with safety be brought there; then such imprisonment was within the lawful authority and duty of the said defendant, and he is not liable therefor in this action. And if they shall further find that the said plaintiff was brought from the said fort on board the said ship as soon as it was safe to bring him there, and, upon being brought on board, the said defendant, still being in com mand of said ship, required him to go to duty; and he refused to do so, and thereupon he had him confined in prison on board said ship, in irons, and the next day caused plaintiff to be brought before him, and remonstrated with him, and caused his immediate officer to explain to him his obligation, and the nature of the 107] contract, *and then required him to go to duty, and he refused, and thereupon he or dered him to be punished, and he was punish ed, according to the rules and regulations of the navy; which rules and regulations it has been agreed the jury may find; and after such punishment, directed him to go at large among the crew, that he might converse with them, and so learn his duty, and he did go at large; and on the evening of the same day again refused to go to duty, and was again imprisoned by the defendant; and was again the next day brought before the defendant, and refused to go to duty, and was punished as aforesaid; then it was lawful for the said defendant to punish the said plaintiff as often as, being called upon as aforesaid, he refused to go to duty; and the said defendant is not liable in this action for the said imprisonment and corporal punishment. Which instruction the court refused to give; and, on refusing, assigned, as reasons therefor, and so instructed the jury, that the word "un safe' seems too vague, uncertain, and equivocal to justify in law such an imprisonment in the fort on the island, in charge of the natives. I think the jury must be satisfied, by the evidence, that there was an urgent necessity of using the fort, in order to justify such imprisonment, especially if the jury should be satisfied there was another armed vessel of the United States in the port, in which the plaintiff might have been safely kept.' On the second part of the instruction prayed, the court said: "I think it is not a sufficient justification to find that the punishment was according to the rules and regulations of the navy. In the petty offenses which by those rules are punishable by flogging, there is a limit within which the officer has a discretion, which should be exercised soundly and reasonably; and, in order to justify the officer, the jury must be satisfied that it was so exercised. In the case of such petit offenses I think each punishment settles all previous offenses of that kind. If, after such punishment a new offense be committed, it will of course be liable to a new punishment. The shipping articles alone did not justify the corporal punishment. In no case, unless by express statute, can corporal punishment be lawful, unless it be reasonable, according to the aggravation and circumstances of the case, and the reasonableness must be found by the jury, or the punishment cannot be justified." To which refusal by the court to give the said instruction so prayed by the defendant, and also to the opinion and instructions so given by the court to the jury, the defendant, by his counsel, excepts, and prays the court to sign and seal this bill of exceptions, and to cause the same to be enrolled according to the statute; which is done this 29th day of April, 1845. W. CRANCH. [SEAL.] *Defendant's 4th Bill of Exceptions. [*108 And thereupon the defendant further prayed the evidence aforesaid, the jury should not the court to instruct the jury, that if, from find that the said plaintiff made the said contract and received the said bounty, but that he was previous to the said alleged grievances, States ship Vincennes, a public vessel of the United States employed on foreign service under the command of the defendant, and that the defendant was the commander of the expedition on which she was employed, and the time of service of the said plaintiff, enboard said ship on foreign service, and his listed as aforesaid, expired while he was on detention was deemed essential to the public interests by the said commander, then it was lawful for the said defendant, commander as aforesaid, to detain the said plaintiff on board the said ship; and the said plaintiff was thereby made subject to the laws and regulations for the government of the navy; which instruc tion the court refused to give, in the form in which it was prayed, being of opinion, and so instructed the jury, that the burden of proof was on the defendant to show that the the public interests, and that it was not condetention of the said plaintiff was essential to mander; and thereupon the said defendant, by fided absolutely to the discretion of the comhis counsel, excepts, and prays the court to sign and seal this bill of exceptions, which is done; and the same is ordered to be enrolled, according to the statute, this 30th day of April, W. CRANCH. [SEAL.] an enlisted marine on board the said United 1845. Defendant's 5th Bill of Exceptions. Whereupon the defendant prayed the court to instruct the jury, that if, from the evidence aforesaid, the jury shall find that the said plaintiff, on the day of enlisted as a marine in the naval service of the United States, and was never discharged therefrom by the President of the United States; and, being so enlisted, he was, during his term aforesaid, ordered on board the Vincennes, a United States man-of-war, under the command of the defendant, on foreign service, and while on board said vessel, on such foreign service, his term of service expired; and if. from the said evidence, the jury shall further find that the detention of the said plaintiff on board the said ship was essential to the public interests, then it was lawful for the defendant so to detain the said plaintiff as aforesaid, and, being so detained, he was thereby subject to the rules and regulations of the navy of the United States; and if the jury shall further find that 109*] the said plaintiff, being so detained *as aforesaid, refused to do duty on board the said ship, upon being required to do so by the defendant, then it was lawful for the defendant to punish him with stripes, according to the said rules and regulations, for every offense, not exceeding twelve lashes; and every such refusal was a new offense, for which he was subject to punishment; and every such punishment was a full satisfaction for every such offense to the time of the infliction thereof. Which instruc tion the court refused to give; and thereupon the said defendant, by his counsel, excepts thereto, and prays the court to sign and seal this bill of exceptions, which is done, according to the statute, this 30th day of April, 1845. W. CRANCH. [SEAL.] aforesaid, that the said defendant could have securely kept and confined the said plaintiff on board the said ship Vincennes, or on board the said ship Peacock, with safety to the said ships, their officers and crews, then the defendant had no right to imprison said plaintiff in said fort in the island of Oahu; and the jury may give such damages therefor as upon the whole evidence aforesaid they may think the said plaintiff entitled to, provided the jury shall find that the said ships Vincennes and Peacock were together, at the time of said imprisonment, in the said harbor of Honolulu,, and were under the command of the defendant, and that said imprisonment in said fort was caused and continued by order of the defendant; which instruction the court gave as prayed; to which instruction the defendant, by his attorney, excepts, and this his bill of exceptions is signed, sealed, and ordered to be enrolled, this 30th day of April, W. CRANCH. [SEAL.] 1845. Defendant's 8th Bill of Exceptions. Whereupon, the plaintiff further prayed the court to instruct, the jury, that if, from the evidence aforesaid, the jury believe that the floggings and imprisonments of the said plaintiff, on board the said ship Vincennes, alleged in the declaration in this cause, were immoderate, excessive, unreasonable in degree, and disproportioned to the alleged offenses, and that such punishment was severer in degree than the rules and regulations for the government of the navy of the United States, or the laws and customs in such cases at sea, authorize, then the plaintiff may recover such damages therefor as, upon the whole evidence, the jury may think he ought to have; provided the jury shall find that the said floggings and imprisonments were inflicted by order of the defendant; which instruction the court gave as prayed; to which instruction the defendant, by his counsel, excepts; and this his bill of exceptions is signed, sealed, and ordered to be enrolled, this 30th W. CRANCH. [SEAL.] day of April, 1845. Defendant's 6th Bill of Exceptions. Whereupon the defendant further prayed the court to instruct the jury, that if, from the evidence aforesaid, the jury shall find that the said plaintiff, on theday ofenlisted into the marine corps of the United day of States; and afterwards, on the April, 1838, while in the said service, and during the said enlistment, was ordered on board the Vincennes, a vessel in the navy of the United States, and, as such marine, proceeded in the said ship on foreign service, under the command of the defendant; and the time of service of the said plaintiff, enlisted as aforesaid, expired while he was on board the said Defendant's 9th Bill of Exceptions. ship on foreign service, and his detention was deemed essential, by the commander of the exWhereupon, the plaintiff further prayed the pedition in which he was engaged, to the public interests, then it was lawful for the said de- court to instruct the jury, that if the jury befendant, commander as aforesaid, to detain the lieve, from the evidence aforesaid, that the said plaintiff on board the said ship: and the detention of the plaintiff, as alleged in the decsaid plaintiff was thereby made subject to the laration in this cause, after the term of his said laws and regulations for the government of the enlistment in the marine corps had fully exnavy, and being so subject, if he refused to do pired, was not essential to the public interests, duty on board said vessel when required by said commander, then it was lawful for the said commander, in his discretion, to punish him under the rules and regulations of the navy, not exceeding twelve lashes for every such refusal, provided the said punishment was inflicted between each of said refusals, and he is not liable therefor in this action; which instruction the court refused to give; and thereupon the defendant, by his counsel, excepts, and prays the court to sign and seal this bill of exceptions, which is done accordingly, this 30th day of April, 1845. W. CRANCH. [SEAL.] Defendant's 7th Bill of Exceptions. Whereupon the plaintiff, by his attorney, 110*] prayed the court *to instruct the jury, that if the jury believe, from the evidence then such detention was unlawful, and the plaintiff *is entitled to recover such [*111 damages therefor as, in the opinion of the jury. from the whole evidence, he ought to have; provided the jury shall find that the said plaintiff was detained by order of the defendant; which instruction the court gave as prayed; to which instruction the defendant, by his counsel, excepts; and this his bill of exceptions is signed, sealed, and ordered to be enrolled, this 30th W. CRANCH. [SEAL.] day of April, 1845. The case came up to this court upon these bills of exceptions, and was argued by Mr. Bradley and Mr. Toucey (Attorney-General) for the plaintiff in error, and Mr. May for the defendant in error. The points raised by Mr. Bradley, the opening counsel, which were contested by Mr. May HOWARD 7. and sustained by the Attorney-General, were as follows: I. The court erred in ruling out the evidence in the first exception, because 1. The papers were official reports by the defendant, ante litem motam, tending (1.) to show that the re-enlistment was recognized by the government, and that the government approved the detention of the men during the cruise, as being essential to the public interest; (2.) to rebut any presumption of malice. II. The court erred in ruling out the evidence of the court-martial, because- 1. It was a bar to any recovery by the plaintiff. 2. It tended to meet every presumption of malice, by showing that his conduct had undergone a judicial investigation for these matters before a competent court. 3. It tended to show a complete recognition and sanction by the government of all the acts complained of, and it then depends upon the authority of the government. III. The court erred in refusing the prayer stated in the third exception; and also in the instruction they gave. 1. If the word "unsafe" was too indefinite, the prayer might have been refused; but the qualification and instruction that there must be "an urgent necessity was equally indefinite, and is not in itself accurate. 2. The rules and regulations of the navy import a justification. IV. And there is error in each and every one of the other exceptions. 1. Because the question of detention is within the discretion of the commander, and imports 112*] a justification. If not *conclusive, it is prima facie, and the burden of proof was on the plaintiff to impeach it, and aver and prove malice. 2. (1.) Because, if he was lawfully detained, the plaintiff was lawfully subject to the rules and regulations of the navy, and for refusing to go to duty he was liable to be punished not exceeding twelve stripes, by order of the commander, for every such offense, and the refusals given in evidence were independent and substantive offenses. (2.) A refusal to go to duty is not such a disobedience of orders as neces sarily implies a mutinous spirit or intent. There is a discretion in the officer to determine wheth er it is one of those petty offenses 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. 3. Because the court limited the question of "safety" to the ships, officers, and crews, without regard to the prisoner himself; and the word "safety" is equally indefinite with the word "unsafe." 4. (1.) Because they submitted to the jury the interpretation of the rules and regulations of the navy, and to find also "the laws and customs at sea governing the national vessels of the United States." (2.) Because the contract of enlistment and the re-enlistment given in evi dence subjected the plaintiff to the rules and regulations of the navy, independent of any laws and customs at sea, except in cases not provided for by said rules and regulations; and this case was provided for by them. 5. (1.) Because the ninth exception either excludes from consideration the effect of the reenlistment, which the court was bound to interpret; or if it is left open by the phrase, "if he did so detain them," it is too obscure, and the jury may well have been misled by it into the supposition that the court had taken that matter from them. (2.) It does not put the detention on the ground of constraint, and being against the will of the plaintiff. With respect to the first exception, Mr. Bradley cited the acts of Congress referred to in the statement of this case, and contended that Dinsman had voluntarily made a contract by which he agreed to obey all the laws for the regulation of the navy, and, at all events, the evidence ought to have gone to the jury to rebut the presumption of malice. 2d exception. The judgment of the courtmartial was sanctioned by the President, and consequently Wilkes's detention of Dinsman was approved. Perhaps it was not a legal bar to the action, but was good evidence to show that Wilkes was acting under a sense of duty, and not actuated by malice. (Bull. N. P., 19; 12 Mass. Rep., 579.) *3d exception. The terms of re-en- [*113 listment 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. On the subject of imprisonment on shore in the merchant service, and to inflict corporal punishment, he cited Shee's Abbott on Shipping, chap. 4, part 2, p. 177; Ware 18, 19, 207, 230, 371, 503; 1 Story, 106; 4 Mason, 511, 512; 5 Mason, 193; 1 Sumner, 397, 398. Under the contract, therefore, without reference to the statute, Wilkes had a right to inflict this punishment. But the navy regulations also justified it. The marine corps is a part of the navy. (Naval Laws, 100, 156, 164.) The Act of 1837 necessarily gave the commanding officer a discretion to judge whether or not the interests of the service required the detention of Dinsman. If the jury were satisfied that he deemed it expedient to do so, it was enough. The law protected him unless malice was shown, and it was for the other side to prove malice. 5th exception. Every refusal to do duty was a fresh offense. (Rules and Regulations for the Navy, art. 3, 14, 30; Act of April 23, 1800.) 7th and 8th exceptions. The power of the officer over the man, and the interpretation of the navy regulations, were not matters of fact for the jury. They were questions of law. The court ought to have decided whether or not the contract of re-enlistment was binding. Mr. May, for defendant in error, recited all the facts in the case, and proceeded to examine what were the rights of Wilkes in the case, and how acquired. The earlier laws were almost all repealed by the Act of June 30, 1834. (See Naval Laws, 156.) The enlistment took place on the 21st of No- | Coustitution of the United States says, that vember, 1836, and was for four years. Con- cruel and unusual punishments shall not be insequently it expired on the 21st of November, flicted; and the question whether or not a pun1840. But it has been argued that a re-enlist- ishment is one of this forbidden class is a quesment was made, to extend over the entire cruise. tion of fact for a jury. There is no authority in any law for such a contract; none which justifies an indefinite enlistment. If there is, let it be shown. The agree ment with Jones was not a valid contract. Jones had no authority to make it. Besides, 114*] the man was already enlisted *for four years, and whilst thus in service was incapable of making another and different contract. The Act of March 2d, 1833, provides that no bounty shall be allowed, and the fourth auditor was right in taking this view of it. The contract was therefore in violation of law, and cannot be binding. Even supposing the contract with Jones to be good, it was only with him personally, and did not pass to his successor. Where a public contract is made under legal authority, and in the line of duty, by an officer, it is binding. (1 Cranch, 363.) But Jones had no legal authority. It is argued that this contract is like those which are made in the merchant service. The form of these is given in Abbott on Shipping (Story's ed.), page 550. The term of service is required to be fixed for the protection of sea men. 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 regu lations for the navy. Do these authorize an imprisonment out of the ship? Let the other side show any such. 1st exception. Wilkes wished to read his own letter to the Secretary of the Navy. This was not proper evidence, and could not even mitigate damages, because it afforded no proof of the state of his mind two years after it was written, when these severe punishments were inflicted. The exception does not state the purpose for which it was offered. It is now said that it was to show that the government approved his conduct. But there was no evidence offered below, that the Secretary of the Navy approved of or even answered it. 2d exception. Dinsman was no party to the record of the court-martial by which Wilkes was acquitted. Buller's N. P., and 12 Mass. Rep., 597, have been referred to; but in both these cases, the plaintiff was a party to the proceeding. The opinions of officers of the courtmartial are no evidence of Wilkes' state of mind; and, besides, there were many other charges upon which he was tried. 3d exception. The prayer here is based upon the contract with Jones. But this contract was void, and therefore the court below was right. There is no authority anywhere given by law, by which an officer of the navy can confine a man on shore. The rules of the merchant service do not apply, because vessels of war have ample means of imprisonment within themselves. The prayer proposed to submit to the jury whether or not Dinsman was punished according to the rules and regulations of the navy. But this was a question of law. The rules, &c., were not offered in evidence, and therefore the jury could not decide. 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 in- 4th exception. The act of Congress does tends to include the marine corps, it always not leave it to the mere arbitrium of an officer says so. The late Attorney General, Mr. Le whether to detain a seaman or not. The burgaré, gave an opinion that marines were not den of proof is upon him, to show that the deIncluded in this act. The act was passed after tention was essential to the interests of the servthe enlistment was made, and cannot be ret ice. The act of Congress directs the officers roactive. The enlistment took place on the to "report to the Navy Department," and im14th of November, 1836, and the Act was pass-plies therefore that he is responsible for his acts. ed on the 2d of March, 1837. On the subject of retrospective laws, Mr. May cited 1 Gallison, 139; 4 Serg. & Rawle, 408: 2 Peters, 657; 6 Cranch, 174: 16 Mass. Rep., 245. Wilkes' rights over Dinsman were not unlimited or despotic. They were regulated either, 1st, by statute; 2d, by usage. [Mr. May then examinad the statutes and navy regulations, and contended that the authority which he had exercised was not justified by them.] 2d. Usage. The authorities show that the power of a captain is not unlimited. (2 Carr. & Payne, 148; Shee's Abbott on Ship., 177, 178; 1 Hagg. Adm., 272; 2 Starkie, 452; 1 Cowper, 161; 14 Johns., 119; Gilpin, 232; 4 Mason, 511, 512; 1 Story, 106; 1 Ware, 18, 19, 372, 503; Pet. Adm., 174, 175; Ware, 224, where the whole subject is traced; 1 Wood. & M., 267.) If the master inflicts an unusual punishment, he is responsible. It is very doubtful whether 115*] he can lawfully confine a *seaman in a foreign jail. The eighth article of the 5th exception. It has been said that every refusal to do duty is a fresh offense. If this argument be sound, a man might be whipped to death for refusing to perform duty after the term of his enlistment had expired. 6th exception. This depends on the same principle. 7th and 8th exceptions. If the above principles are correct, the prayers in these exceptions are even less beneficial than we had a right to expect, and are not erroneous. *9th exception. We are not bound [*116 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 Starkic 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 plaint- | detention not essential to the public interests, iff's imprisonment in the fort. the plaintiff might recover. The court refused to let the defense rest upon the point of the safety of the ship to which the plaintiff belonged; but put the va lidity of the defense upon urgent necessity, as something more than the mere safety of the ship. The clause, “especially if the jury should be satisfied there was another armed vessel of the United States in the port, in which the plaintiff might have been safely kept," does not qualify the charge; because, if the jury did not find this, the charge still remained. Here the court says the safety of the ship is not a sufficient justification for removing a mutineer to the fort, but there must be an urgent necessity, and that would justify it. The jury must necessarily have been misled by this instruction and great injustice done to an officer who looked to the safety of his ship as the first and principal point of duty. The court refused to charge the jury, that, if the plaintiff refused to go to duty, and was punished for it according to the rules and regulations of the navy, it was a sufficient defense; but charged, affirmatively, that this was not a sufficient justification. The court charged very correctly, that, "in the petty offenses which, by those rules, are punishable by flogging, there is a limit within which the officer has a discretion"; and then charged the other way, that the jury must judge whether he exercised that discretion soundly and reasonably In other words, that he has no discretion which he can exercise, but the jury must exercise it for him, upon the testimony of witnesses, after the occasion has passed away. The court further instructed the jury, that the shipping articles alone did not justify the corporal punishment, and that the reasonable ness of it must be found by the jury. The shipping articles in this case is the contract of enlistment. The plaintiff expressly agreed to be subjected to the rules and discipline of the navy. If punished in a given case precisely according to those rules, the act is justified by 117*] the agreement, and the *charge that its reasonableness must be found by the jury is misapplied and erroneous. The question of "reasonableness" arises in those cases only where the law authorizes the application of reasonable force. But where the law, and the consent of the party, authorize the application of force according to certain definite rules, the only question is, whether it has been applied ac cording to those rules. The fourth and ninth bill of exceptions may be considered together. By the fourth the court refused the instruction, that, if the plaintiff's detention was deemed essential to the public interests by the commander, the defendant, as such commander, had a right to detain him, and that the plaintiff was thereby made subject to the rules and regulations for the government of the navy. The court further instructed the jury affirmatively, that the burden of proof was on the defendant, to show that the detention of the plaintiff was essential to the public interests, and that it was not confided absolutely to the discretion of the commander. By the ninth, the court, at the plaintiff's request, charged, that, if the jury believed the The Act of the 2d of March, 1837 (5 Stat. at Large, 153), provides, that when the time of service of any person enlisted for the navy shall expire when he is on board any of the public vessels of the United States employed on foreign service, it shall be the duty of the commanding officer, &c., to send him to the United States in some public or other vessel, unless his detention be essential to the public interests, in which case the said officer may detain him until the vessel in which he shall be serving shall return to the United States; and it shall be the duty of said officer immediately to make report to the Navy Department of such detention, and the causes thereof." It further provides, that the person so detained "shall be subject in all respects to the laws and regulations for the government of the navy, until their return to the United States, and all such persons as shall be so detained, and all such as shall voluntarly re-enlist to serve until the return of the vessel in which they shall be serving and their regular discharge therefrom in the United States, shall, while so detained, and while so serving under their re-enlistment, receive an addition of one fourth to their pay." Are the marines comprehended in these terms? The words are, "when the time of service of any person enlisted for the navy shall expire." Marines are enlisted for the navy. The court assumed they were within the law. They are pre-eminently within its reason, and are precisely within its *letter. The contract [*118 with them was only commensurate with the power conferred by that act. It was to take effect after the existing term expired; it was not material when it was made; it might be necessary to make it before the cruise; it is enough that it secured consent to what the law authorized. 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. 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. It is the declared consequence of its exercise, that they shall be subject to the rules and regulations for the government of the navy. Others are to act upon that decision thus made, and are not required to revise it, or permitted to question it. It is the duty of all the subordinate officers, and of the crews of the different ships, to obey the orders of the commanding officer founded on that decision, and such order is not only a sufficient warrant for their obedience, but they are liable to the penalty of death if they disobey it. It is the duty of the Treasury Department and pension office to act upon it. The power itself, |