Schooner Paulina's Cargo v. United States
11 U.S. 52 (1812)

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U.S. Supreme Court

Schooner Paulina's Cargo v. United States, 11 U.S. 7 Cranch 52 52 (1812)

Schooner Paulina's Cargo v. United States

11 U.S. (7 Cranch) 52

ERROR TO THE CIRCUIT COURT FOR

THE DISTRICT OF RHODE ISLAND

Syllabus

The third section of the Act of Congress of 9 January, 1808, which prohibited the transshipment of goods from one vessel to another, did not include the case of a vessel lading in port by means of river craft, &c.

The second section of the Act of Congress of 25 April, 1808, did not require a permit to lade any vessel nor authorize the forfeiture and condemnation of the vessel or cargo for lading without the inspection of a revenue officer; the only penalty for such lading being the denial of a clearance.

The schooner Paulina and cargo were seized and libeled by the collector of the port of Newport, alleging that the cargo was laden on board within the District of Newport between 1 June and the last of July in the year 1808, in the night season, without a permit from the collector and without the inspection of the proper revenue officers, and contrary to the 2d section of the

"Act of Congress entitled 'An act in addition to the act entitled an act laying an embargo on all ships and vessels in the ports and harbors of the United States, and the several acts supplementary thereto, and for other purposes,'"

passed 25 April, 1808, and contrary to the 50th section of the act to regulate the collection of duties, &c., passed 2 March, 1799. In the district court, the vessel and cargo were both ordered to be restored.

Upon the appeal in the circuit court, the libellant had leave to amend his libel by stating that on the waters

Page 11 U. S. 53

of Warwick Bay, in the District of Rhode Island, at a place called the Fulling Mill in Warwick, and about 120 fathoms from the landing, at sundry times, between 1 June and the last of July in the year 1808, the articles constituting the cargo of the Paulina were transshipped from a small sloop called the Mayflower into the schooner Paulina without the intervention of any other watercraft or of any intermediate landing, with intent to be transported without the United States contrary to the 3d section of the

"Act of Congress entitled 'An act supplementary to the act entitled an act laying an embargo on all ships and vessels in the ports and harbors of the United States,' passed on 9 January, 1808, whereby the said cargo is forfeited,"

&c.

The words of the 2d section of the Act of 25 April, 1808, vol. 9, p. 146, are

"That during the continuance of the act laying an embargo on all ships and vessels in the ports and harbors of the United States and of the several acts supplementary thereto, no ship or vessel of any description whatever, other than those described in the next preceding section, and wherever bound, shall receive a clearance unless the lading shall be made hereafter under the inspection of the proper revenue officers, subject to the same restrictions, regulations, penalties, and forfeitures as are provided by law for the inspection of goods, wares, and merchandise imported into the United States upon which duties are imposed, any law to the contrary notwithstanding."

By the 50th section of the Act of 2 March, 1799, vol. 4, p. 360, to regulate the collection of duties, &c., it is enacted

"That no goods, wares, or merchandise brought in any ship or vessel from any foreign port or place shall be unladen or delivered from such ship or vessel within the United States but in open day -- that is to say, between the rising and setting of the sun, except by special license from the collector of the port and naval officer of the same (where there is one) for that purpose, nor at any time without a permit from the collector and naval officer (if any) for such unlading or delivery, and if any goods, wares, or merchandise shall be unladen or delivered from any such ship or vessel contrary to the directions aforesaid, or any of them, the master . . .

Page 11 U. S. 54

shall forfeit and pay, each and severally, the sum of $400 for each offense, and shall be disabled from holding any office of trust or profit for a term not exceeding seven years, . . . and all goods, wares, or merchandise, so unladen or delivered shall become forfeited and may be seized by any of the officers of the customs,"

and if the value shall exceed $400, the vessel, &c., shall be subject to like forfeiture and seizure.

By the 3d section of the act of 9 January, 1808, vol. 9, p. 11, it is enacted

"That if any ship or vessel shall, during the continuance of the act to which this is a supplement, depart from any port of the United States without a clearance or permit, or if any ship or vessel shall, contrary to the provisions of this act or of the act to which this is a supplement, proceed to a foreign port or place, or trade with or put on board of any other ship or vessel any goods, wares, or merchandise of foreign or domestic growth or manufacture, such ships or vessels, goods, wares, and merchandise shall be wholly forfeited . . . and the master or commander of such ship or vessel, as well as all other persons who shall knowingly be concerned in such prohibited foreign voyage, shall each respectively forfeit and pay a sum not exceeding $20,000,"

&c.

The circuit court affirmed the sentence of the district court so far as it decreed the restitution of the vessel, but reversed it so far as it decreed restitution of the cargo, which the circuit court condemned.

To reverse this sentence of condemnation the present writ of error was sued out by Simeon Jones, the owner and claimant of the vessel and cargo.

On 20 February, 1810, a dedimus was issued from the supreme court to take depositions in Rhode Island, which was executed and returned on 14 March.

The material facts appearing upon these depositions were that the former owners of the Paulina, being prevented by the embargo from using their vessel, in order

Page 11 U. S. 55

to save expense, took her into Warwick Bay, which was near the residence of one of the owners. Shortly afterwards they sold her to the present claimant, Jones, who caused her to be publicly, and in open day, laden by means of the sloop Mayflower, which was a little vessel of 15 tons burden, whose usual business it was to carry goods from Providence to Warwick and East Greenwich. That he thus caused her to be laden in the expectation that the embargo would be very shortly taken off. There was also some evidence tending to excite suspicion that the intention was to evade the embargo.

Page 11 U. S. 60

MARSHALL, CHIEF JUSTICE, delivered the opinion of the Court as follows:

The libel in this case, as amended in the Circuit Court for the District of Rhode Island, claims the schooner Paulina and her cargo as forfeited under the 3d section of the act supplementary to the act laying an embargo, and under the 2d section of the act in addition to the original embargo act and its several supplements, and under the 50th section of the act regulating the collection of duties on imposts and tonnage.

In the district court, both vessel and cargo were acquitted, but in the circuit court the cargo was condemned.

In construing these laws, it has been truly stated to be the duty of the court to effect the intention of the legislature; but this intention is to be searched for in the words which the legislature has employed to convey it. The legislature has declared its object to be to lay an embargo on the vessels of the United States and to prevent the transportation of any article whatever from the United States to any foreign port or

Page 11 U. S. 61

place, and therefore such transportation is prohibited. To prevent evasions of this law, certain acts which do not in themselves amount to a breach of the embargo, but which may lead to it, have been successively prohibited under such penalties as the wisdom of Congress has prescribed. Those acts become criminal and subject the person to such punishment as the law inflicts. In ascertaining what they are, the Court must search for the intent of the legislature, guided by those rules which the wisdom of ages has sanctioned.

But should this Court conjecture that some other act, not expressly forbidden and which is in itself the mere exercise of that power over property which all men possess, might also be a preliminary step to a violation of the law, and ought therefore to be punished for the purpose of effecting the legislative intention, it would certainly transcend its own duties and powers, and would create a rule instead of applying one already made. It is the province of the legislature to declare in explicit terms how far the citizen shall be restrained in the exercise of that power over property which ownership gives, and it is the province of the Court to apply the rule to the case thus explicitly described -- not to some other case which judges may conjecture to be equally dangerous.

The fact made out in the present case is this:

The Paulina, a registered vessel, lying in the common anchorage ground of Warwick Bay, in the District of Rhode Island, about two hundred fathoms from the shore, received her cargo from the Mayflower, a small vessel of fifteen tons burden, accustomed to ply between Providence and Newport. The lading of the Paulina was continued in open day for several weeks, but not under the inspection of a revenue officer. When her cargo was nearly on board, she was seized and libeled as having violated the acts of Congress which have been mentioned.

The question will, it is conceived, be the more clearly understood if we consider the laws in the order in which they were passed and inquire first whether the 3d section of the supplementary act has been violated.

Page 11 U. S. 62

In pursuing this inquiry, it is essential to examine how far lading a vessel under the circumstances of the Paulina was prohibited by the original and supplementary acts without taking into view any subsequent act of Congress.

The original act, passed on 22 December, 1807, lays an embargo on all vessels bound to foreign ports, and directs that no clearance be furnished to such vessel. The 2d section directs that before a registered vessel shall receive a clearance for a port in the United States, a bond shall be given with a condition that the cargo shall be relanded in some port of the United States, dangers of the seas excepted.

This act contains no provision applicable to the lading of any vessel whatever, or to licensed vessels, nor does it inflict any forfeiture or penalty on vessels which should depart without a clearance.

The incompetency of this act to effect its object could not be long unobserved. It was soon perceived that foreign trade might be carried on by licensed vessels, and that further regulations respecting registered vessels would also be necessary.

On 9 January, 1808, the supplemental act was passed.

The first section directs that bonds shall be given on the part of vessels licensed for the coasting trade, conditioned not to proceed to any foreign port or place and to reland the cargo in some port of the United States.

The second section contains a proviso declaring that it shall be sufficient for the owners of vessels of the description of the Mayflower to give bond with a condition not to be employed in any foreign trade.

This review of the prohibitions contained in the original and supplementary embargo acts was necessary to a complete understanding of the 3d section of the supplemental act, which is the section supposed by the libellants to comprehend the present case.

Page 11 U. S. 63

That section is in these words:

"And be it further enacted that if any ship or vessel shall, during the continuance of the act to which this is a supplement, depart from any port of the United States without a clearance or permit, or if any ship or vessel shall, contrary to the provisions of this act or of the act to which this act is a supplement, proceed to a foreign port or place or trade with or put on board of any other ship or vessel any goods, wares, or merchandise of foreign or domestic growth or manufacture, such ships or vessels, goods, wares, and merchandise shall be wholly forfeited,"

&c.

This section contemplates three distinct transactions.

1. A departure from any part of the United States without a clearance or permit.

2. Contrary to the provisions of the original or supplementary acts to proceed to a foreign port or place, or

3. To trade with or put on board any other ship or vessel any goods, wares, or merchandise.

The offense last described is supposed to have been committed by the Paulina.

Nothing can be more apparent than that the legislature could not have intended to prohibit any person from putting a cargo on board a vessel of any description.

1. The coasting trade was still lawful, and might be carried on by either registered or licensed vessels; consequently any vessel might be laden for that purpose.

2. There is no direct prohibition to lade a vessel with any articles whatever.

3. There are provisions in subsequent laws on the same subject which regulate the manner of lading vessels in order to entitle them to a clearance, which provisions are entirely incompatible with the idea that all lading was prohibited.

Page 11 U. S. 64

With a view to this principle the section must be construed.

The first inquiry which presents itself to the mind is this: do the words "contrary to the provisions of this act or of the act to which this act is a supplement" limit and restrain both the succeeding members of the sentence, or only the first of them? Are they applicable only to "proceeding to a foreign port or place," or also to "trading with or putting on board any other ship or vessel any goods, wares or merchandise."

If the sentence be construed literally and grammatically, the introductory words which have been stated are attached to all the offenses afterwards described. The departure without a clearance under any circumstances is an offense. The circumstances of the departure do not affect the case. But to render the facts afterwards enumerated criminal, they must be committed under circumstances described in the law.

"If any ship or vessel shall, contrary to the provisions of this act, or of the act to which this is a supplement, proceed to any foreign port or place, or trade with, or put on board of any other ship or vessel, . . . such ships or vessels, goods, wares, and merchandise, shall be wholly forfeited."

The connection between the different parts of this sentence is inseparable. There is nothing to disjoin them. The nominative to the verbs "proceed," "trade with," and "put on board" is the same. It is not repeated, but is to be found in the first part of the sentence, and must be taken in the same sense and with the same qualifications. The relative "such" in that part of the sentence which inflicts the forfeiture, refers to the ship or vessel, which contrary to the provisions, &c., shall have done anyone of the acts described.

If this be the literal construction of the sentence, it is still more apparently its real meaning.

If the words, "trade with or put on board any other ship or vessel" be not limited by the words "contrary to the provisions of this act, or of the act to which this act is a supplement," they would not only prohibit a vessel from lading, but from unlading in a manner which is frequent and perfectly innocent. There are

Page 11 U. S. 65

many ports in the United States whose situation requires that a sea vessel should stop at a considerable distance from the place for which she is destined and convey part of her cargo in lighters or river craft to the place of destination. Under such circumstances, to load or unload would amount to a forfeiture. But such was not the intention of the legislature.

Most apparently, then, both the letter and the spirit of the law must be disregarded, or it must be admitted that the "trading with or putting on board" that is rendered culpable must be such a trading with or putting on board as is "contrary to the provisions" of the original or supplementary act.

The subsequent words of the section imposing a penalty of from one to twenty thousand dollars on the offense tend still further to illustrate and confirm this construction. They are

"the master or commander of such ship or vessel, as well as all other persons who shall knowingly be concerned in such prohibited foreign voyage, shall forfeit and pay,"

&c.

The master or commander of the "ship or vessel" described in this part of the sentence would seem to be the master or commander of any ship or vessel which had committed anyone of the offenses previously described. If this be true, it is difficult to resist the opinion that the words "as well as all other persons who shall knowingly be concerned in such prohibited foreign voyage" were considered by the legislature as applicable to all the voyages previously prohibited. Consequently the legislature, at the time, supposed itself to be punishing foreign voyages only.

The Paulina having committed no offense by taking her cargo on board unless she incurred the penalties of the law by receiving it from the Mayflower, the sentence will now be examined with a view to this question: is the employment in this way of a vessel whose business is confined to the rivers, bays, and sounds within the jurisdiction of the United States a forfeiture of the vessel and cargo?

Page 11 U. S. 66

The bond given by such vessel is that she will not be employed in any foreign trade.

This exemption from the necessity of relanding the cargo proves the intention of the legislature that such craft might be employed in lading vessels. This employment is not contrary to the provisions of either the original or supplemental act.

If, then, the Mayflower had transshipped her cargo in the port in which she was laden, it is apparent that no part of the law would have been violated.

The section under consideration inflicts forfeiture on any ship or vessel which shall depart from any port of the United States without a clearance or permit.

If by law this would produce a forfeiture of the cargo when on board the Paulina, it is to be inquired whether, under this libel, the fact of her having passed out of one port into another without a clearance or permit is examinable.

The libel charges the simple fact of transshipment, without alleging the only circumstance which could render such transshipment criminal. The question, then, of a departure from the port of Providence into that of Newport is not brought before the Court. It does indeed appear in the evidence that, in consequence of an opinion among the revenue officers as well as others, a clearance in such a case was not requisite -- the Mayflower carried a considerable part of her cargo to the Paulina without having obtained permits. But the Court cannot notice this fact unless the prosecution had in some degree been founded upon it.

It is, then, the opinion of the majority of the Court that as this case stands, the sentence cannot be sustained under the 3d section of the Act of January, 1808. No opinion is given on the construction of that act in a case of transshipment from a vessel which has actually passed from one district to another without a clearance.

The libel also claims a forfeiture under the 50th section

Page 11 U. S. 67

of the Collection Law and under the 2d section of the act commonly called the Additional Act.

It has been very truly observed that the Collection Law is in itself totally inapplicable to the case, and can only be relied on for the purpose of explaining the 2d section of the Additional Act, which refers to the Collection Law.

The operative words of the 2d section are

"No ship or vessel shall receive a clearance unless the lading shall be made hereafter under the inspection of the proper revenue officers subject to the same restrictions, regulations, penalties, and forfeitures as are provided by law for the inspection of goods, wares, and merchandise imported into the United States upon which duties are imposed."

Had the sentence terminated with the word "officers," it is admitted that its only operation would have been to exclude from a right to a clearance a vessel laden in a different manner from that which the act prescribes. The doubt grows out of the residue of the sentence.

This section does not, in terms, refer to the 50th section of the Collection Law. Whether, in strict grammatical construction, the adjective "subject" agree with and refer to the words "lading," "inspection," or "officers," still the "restrictions, regulations, penalties, and forfeitures" which are inflicted are those which are provided by law for the inspection of goods, not those which are provided by law for unlading them. The word "inspection" is the governing word which explains the meaning of the sentence, and the provisions for the inspection of goods contain restrictions, regulations, penalties, and forfeitures, but they do not affect the cargo.

It is difficult to read the sentence without being impressed with the opinion that the sole penalty intended by the legislature was the denial of a clearance. This will strike any person as the principal object of the clause. What follows is expressed with some confusion, and would not seem to constitute the most essential part of the sentence. It cannot be believed that the legislature

Page 11 U. S. 68

could intend to inflict so heavy a forfeiture under such cloudy and ambiguous terms. The natural as well as usual course would be to inflict the forfeiture in direct and substantive terms, not by way of loose uncertain reference.

But if this section be construed as the libellants construe it, then if the value of $400 be put on board a vessel, not only the goods so put on board, but the vessel itself shall be forfeited. For what purpose, then, direct that she shall not receive a clearance? The legislature can scarcely be suspected of making a solemn regulation which, in terms, forbids its officers to grant a clearance to a vessel, which vessel is, by the same sentence, confiscated.

It is the decided opinion of the Court that no forfeiture is incurred under this section of the act.

The majority of the Court is of opinion that the sentence of the circuit court condemning the cargo of the Paulina is erroneous, and ought to be

Reversed.

The court certified that there was probable cause of seizure.

THE CHIEF JUSTICE observed that three of the judges who had heard the argument in the present case, and one who did not hear it but who had heard the points argued in another case, concurred in this opinion, and that the other judges concurred in the result of the opinion.

JOHNSON, JUSTICE, observed that he dissented from the opinion just delivered by THE CHIEF JUSTICE upon one ground only.

He was of opinion that the transshipment, if with intent to prosecute a foreign voyage in violation of the embargo, subjected the goods to forfeiture. But as the evidence of that intent was doubtful, he was of opinion that the cargo should be acquitted, and two other judges concurred with him in opinion.

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