Charles Wilkes, Plaintiff In Error v. Samuel Dinsman

• Decision Date: 01 January 1849
• Citation: 7 How. 89,48 U.S. 89,12 L.Ed. 618
• Parties: CHARLES WILKES, PLAINTIFF IN ERROR, v. SAMUEL DINSMAN
• Court: U.S. Supreme Court

48 U.S. 89

7 How. 89

12 L.Ed. 618

CHARLES WILKES, PLAINTIFF IN ERROR, v. SAMUEL DINSMAN.

January Term, 1849

THIS case was brought up, by writ of error, from the Circuit Court of the United States for Washington county in the District of Columbia.

It was an action of trespass vi et armis, for assault and battery and false imprisonment, brought, in the Circuit Court, by Dinsman, a marine in the service of the United States, who served in the Exploring Expedition, which was commanded by Wilkes.

The facts were these.

On the 14th of May, 1836, Congress passed an act (5 Stat. at Large, 23), authorizing the President to send out a surveying and exploring expedition to the Pacific Ocean and South Seas, and appropriating $150,000 for the object.

On the 21st of November, 1836, Dinsman enlisted in the marine corps of the United States for four years.

On the 2d of March, 1837, Congress passed an act (5 Stat. at Large, 153), entitled, 'An act to provide for the enlistment of boys for the naval service, and to extend the term of the enlistment of seamen.' The second section was as follows, viz.:——

'That when the time of service of any person enlisted for the navy shall expire while he is on board any of the public vessles of the United States employed on foreign service, it shall be the duty of the commanding officer of the fleet, squadron, or vessel in which such person may be to send him to the United States in some public or other vessel, unless his detention shall 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.'

In October, 1837, Thomas Ap Catesby Jones, then commanding the vessels which were preparing to sail on the expedition, issued a general order, proposing to give three months' pay as bounty, and forty-eight hours of liberty on shore, to all the petty officers, seamen, and marines who should re enter for three years from the first of the ensuing November.

In the same month, viz. October 1837, a contract was made between Jones and the non-commissioned officers and privates of marines, which was as follows:——

'We, the subscribers, non-commissioned officers and privates of marines, do, and each of us doth, hereby agree to and with Thomas Ap Catesby Jones, captain of the United States navy, in manner and form following, that is to say: In the first place, we do hereby agree, for the consideration hereinafter mentioned, to enter into the South Sea surveying and exploring service of the United States, and in due and seasonable time to repair on board such armed vessel or vessels as may be ordered on that service; and to the utmost of our power and ability, respectively, to discharge our several services or deties, and in every thing to be conformable and obedient to the several requirings and lawful commands of the naval officers who may, from time to time, be placed over us.

'Secondly. We do also oblige and subject ourselves to serve during the term of the cruise; and we do severally oblige ourselves, by these articles, to comply with, and be subject to, such rules and discipline of the navy of the United States as are, or that may be, established by the Congress of the United States.

'Thirdly. The said Thomas Ap Catesby Jones, for and in behalf of the United States, doth hereby covenant and agree to and with the said non-commissioned officers and privates of the marines, who have hereunto signed their names, and each of them, that they shall be paid for such services the amount per month which, in the column hereunto annexed, is set opposite to each of their names, respectively; and likewise to advance to each and every of them three months' bounty, the receipt whereof they do hereby acknowledge; and that they shall be punctually discharged at the expiration of the term of their enlistment, or as soon thereafter as each vessel of the expedition shall return to a port of safety in the United States.

Pay

Name. Grade. per Signatures. Witness.

month.

his

Philip Baab Private $7 Philip X Baab James Edelin.

mark.

his

Samuel Dinsman " 7 Samuel X Dinsman James Edelin."

mark.

On the 25th of October, 1837, a part of the bounty was paid, amounting to $15, and soon afterwards the remaining $6, making together three months' pay.

On the 20th of April, 1838, Lieut. Com. Charles Wilkes was appointed to the command of the squadron.

On the 2d of August, 1838, A. O. Dayton, the Fourth Auditor of the Treasury Department, wrote letters to the pursers of the vessels, directing them to charge the marines with the amount of bounty which had been paid to them, alleging that it was prohibited by law.

In the course of the month of August, 1838, the expedition sailed.

On the 1st of September, 1838, Captain Wilkes addressed a letter to the Secretary of the Navy, expressing surprise that the pursers had been directed by the Fourth Auditor to charge the marines with the amount paid to them as bounty, and informing the Secretary that he had ordered the pursers not to do so. With this letter were sent some other papers, illustrative of the transaction. The pursers obeyed the order of Captain Wilkes.

In the months of November and December, 1840, the transactions occurred, which are set forth with great particularity in the bills of exceptions.

On the 24th of November, 1842, (the squadron having returned home,) Dinsman brought this action against Wilkes.

In the mean time, however, a court-martial had been held upon Wilkes, one of the charges before which was 'cruelty and oppression,' founded upon the same occurrences which are set forth in the bills of exceptions. The finding of the court was, that the accused was 'not guilty.'

In March, 1845, the cause came on for trial before the Circuit Court, the counsel on both sides having previously agreed that the defendant might give the special matter in evidence as though it was fully pleaded. The jury found a verdict of guilty, and assessed the damages of the plaintiff at five hundred dollars.

The following bills of exceptions were taken in the progress of the trial:——

Plaintiff's 1st Bill of Exceptions.

SAMUEL DINSMAN v. CHARLES WILKES.

At the trial of this case, the plaintiff, to support the issues on his part joined, read in evidence, to have the same effect, by consent of parties, as if the original enlistment of the said plaintiff were produced, the certificate of Major Parke G. Howle, adjutant of the marine corps of the United States; and also read in evidence, for the purpose of showing the forms and mode of such enlistment, without objection, certain blank forms, used and adopted in all regular enlistments or re enlistments into said marine corps. And said Howle testified, he being exemined as a witness, that, by the rules and regulations of said corps, the said forms of said enlistment were required to be indorsed by the recruiting officer, for the purpose of identifying the officer by whom such enlistment was made, and that such enlistment was regularly made.

The said plaintiff then gave evidence, further tending to prove, that he embarked, under orders as a private in said marine corps, in the United States Exploring Expedition, which sailed from the United States on or about the 18th day of August, A. D. 1838, under the command of the defendant, who was a lieutenant in the navy of the United States; that afterwards, while the United States ship Vincennes, one of the vessels of the said expedition, was at the island of Oahu, one of the Sandwich Islands, in the Pacific Ocean, (from which American vessels frequently sailed to the United States,) the term of four years, for which the said plaintiff had enlisted as aforesaid, expired and was fully ended; and the said plaintiff, then and there, to wit, on the 16th day of November, A. D. 1840, on board said ship, claimed of the defendant his discharge from the service of the United States, and refused to perform the duties required of him by the defendant, (still commanding

said expedition and said ship,) and his subordinate officers; whereupon the defendant, then and there, committed the trespasses, as alleged in the declaration in this case on the part of the said plaintiff; and afterwards the said expedition and the said ship sailed from the said island, carrying said plaintiff on board of said ship, commanded by the said defendant in person; and that, while the said plaintiff was on board of said ship, as last aforesaid, he was repeatedly flogged and put in irons, by order of said defendant, for refusing to perform the duties of a marine on board of said ship, required of him by order of said defendant; and the said plaintiff was detained on board said ship, or some other vessel of said expedition, continually, by order of said defendant, and against his consent, until the return of said ship or other vessel to the United States, about the 15th of June, A. D. 1842, although the said ship touched at various foreign ports before her said return to the United States, and after the term for which said plaintiff had enlisted, as aforesaid, was completed and expired.

The said plaintiff then rested his case.

And thereupon the defendant offered evidence tending to show, that, after the passage, by the Congress of the United States, of the act of 1836, making appropriations for the naval service, the President of the United States proceeded to carry the said act into effect, and appointed Thomas Ap C. Jones, a captain in the United States navy, to command the expedition authorized by said act; that the vessels designed for the expedition were assembled at New York, under the command of said Jones, and were there in the month of October, 1837, and on the 21st day of said October the said Jones issued his general order No. 2; that the...