Wines, the produce of France, imported into the United States
before the nonintercourse act, reexported to a Danish island, there
sold to a merchant of that place, and thence exported to New
Orleans during the operation of that act of Congress, were liable
to forfeiture under that law.
An information in the admiralty for a forfeiture must contain a
substantial statement of the offense. A general reference to the
provisions of the statute is not sufficient. If the information be
defective in that respect, the defect is not cured by evidence of
the facts omitted, to be averred in the information.
The decree must be
secundum allegata as well as
secundum probata.
This was an appeal from the sentence of the District Court for
the District of Orleans, exercising the jurisdiction of a circuit
court of the United States, condemning the schooner
Hoppet
and her cargo as forfeited to the United States under the Act of
Congress of March 1, 1809, vol. 9, p. 243, entitled "An act to
interdict the commercial intercourse between the United States and
Great Britain and France and their dependencies, and for other
purposes."
The 4th section of that act makes it unlawful
"to import into the United States or the territories thereof
from any foreign port or place whatever any goods, wares, or
merchandise whatever being of the growth, produce, or manufacture
of France or of any of her colonies or dependencies"
or of any country in the possession of France.
By the 5th section it is enacted
"That whenever any article or articles the importation of which
is prohibited by this act shall, after 20 May, be imported
Page 11 U. S. 390
into the United States or the territories thereof contrary to
the true intent and meaning of this act, such articles, as well as
all other articles on board the same ship or vessel belonging to
the owner of such prohibited articles, shall be forfeited."
And by the 6th section it is enacted
"That if any article or articles the importation of which is
prohibited by this act shall, after 20 May, be put on board of any
ship or vessel . . . with intention to import the same into the
United States or the territories thereof contrary to the true
intent and meaning of this act, and this the knowledge of the owner
or master of such ship or vessel, . . . such ship or vessel shall
be forfeited."
The information against the vessel did not aver that the goods
were put on board the vessel with intention to import the same into
the United States or the territories thereof contrary to the act
with the knowledge of the owner or master of the vessel, nor did
the information against the cargo state that such of the goods as
were not prohibited belonged to the owner of the prohibited goods,
but both informations averred generally that the goods were
imported contrary to the 4th, 5th and 6th sections of the act.
It appeared from the evidence and admissions in the case that
the wines, which constituted the principal part of the cargo, were
the produce of France, and had been shipped from New York to the
Danish Island of St. Bartholomews, where they were purchased by a
merchant of that place and shipped to New Orleans. It did not
appear certainly whether they had been imported into New York since
20 May, referred to in the act of Congress.
Page 11 U. S. 391
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the Court as
follows:
This is an appeal from a sentence of the court for the District
of Orleans condemning the schooner
Hoppet and her cargo as
forfeited to the United States for violating the nonintercourse
law.
In the district court, two informations were filed by the
attorney for the United States, one claiming the ship as being
forfeited and the other claiming the cargo. Objections have been
made to each of these informations which will be separately
considered.
The information against the vessel charges in substance that
while the act, entitled "An act to interdict commercial
intercourse," &c., was in force, certain goods of the growth,
produce, or manufacture of France were imported into the United
States, to-wit, into the port of New Orleans, in the said vessel
from some foreign port or place, to-wit from St. Bartholomews,
contrary to and in violation of the 4th, 5th, and 6th sections of
the act. By reason of which, and by virtue of the act of Congress
entitled "An act, &c.," the said vessel her tackle, apparel and
furniture have become forfeited to the United States.
Page 11 U. S. 392
The charge contained in this information, and the only charge it
contains, is an importation into the United States of certain
prohibited articles while the prohibitory act was in force. How far
does this crime affect the vessel?
This question must be answered by the law. The 6th section of
the act enacts in substance that if any article the importation of
which is prohibited, shall be put on board of any ship, &c.,
with intention to import the same into the United States or the
territories thereof contrary to the true intent and meaning of this
act and with the knowledge of the owner or master of such ship,
&c., such ship, &c., shall be forfeited.
This is the only section of the act which imposes a forfeiture
on the vessel. It will be perceived that the crime consists in the
prohibited articles being laden on board a ship with intent to be
imported into the United States and with the knowledge of the owner
or master of the vessel. A union of a lading with the intention to
import and with the knowledge of the owner or master is necessary
to constitute the crime. Without these essential ingredients, the
particular offense, which alone incurs a forfeiture, cannot be
committed.
In the information under consideration neither of these offenses
is charged. It is neither alleged that the prohibited goods were
put on board the ship with intention to be imported into the United
States nor with the knowledge of the owner or master.
The information against the cargo charges in substance that
certain prohibited articles and certain other articles not stated
to be prohibited were brought into the United States, to-wit, into
the port of New Orleans, while the act, entitled "An act to
interdict commercial intercourse" &c. was in force from some
foreign port or place, by reason of which, and by virtue of the
act, the whole cargo of the
Hoppet has become
forfeited.
The 5th section of the act, under which this prosecution was
sustained, inflicts forfeiture on the prohibited articles imported
contrary to law, and also on "all other articles on board the same
ship or vessel, boat,
Page 11 U. S. 393
raft, or carriage belonging to the owner of such prohibited
articles."
The innocent articles are liable to forfeiture only where they
belong to the owner of the prohibited articles. It is this
association, and this alone, which constitutes their crime. Their
being in the same vessel exposes them to no forfeiture unless they
belong to the same person.
In the case under consideration, the information does not allege
that the innocent and the prohibited articles did not belong to the
same person.
The first question made for the consideration of the Court is
this -- will this information support a sentence of condemnation
pronounced against the vessel and the innocent part of the
cargo?
That the information states a case by which no forfeiture of the
ship or the innocent part of the cargo has been incurred unless its
defectiveness be cured by the allegation that the act was done
contrary to and in violation of the provisions of the statute has
been already fully shown.
It is not controverted that in all proceedings in the courts of
common law either against the person or the thing for penalties or
forfeitures, the allegation that the act charged was committed in
violation of law or of the provisions of a particular statute will
not justify condemnation unless, independent of this allegation, a
case be stated which shows that the law has been violated. The
reference to the statute may direct the attention of the court and
of the accused to the particular statute by which the prosecution
is to be sustained, but forms no part of the description of the
offense. The importance of this principle to a fair administration
of justice, to that certainty introduced and demanded by the free
genius of our institutions in all prosecutions for offenses against
the laws, is too apparent to require elucidation, and the principle
itself is too familiar not to suggest itself to every gentleman of
the profession.
Does this rule apply to information in a court of admiralty?
Page 11 U. S. 394
It is not contended that all those technical niceties which are
unimportant in themselves, and standing only on precedents of which
the reason cannot be discerned, should be transplanted from the
courts of common law into the courts of admiralty. But a rule so
essential to justice and fair proceeding as that which requires a
substantial statement of the offense upon which the prosecution is
founded, must be the rule of every court where justice is the
object, and cannot be satisfied by a general reference to the
provisions of a statute. It would require a series of clear and
unequivocal precedents to show that this rule is dispensed with in
courts of admiralty, sitting for the trial of offenses against
municipal law.
It is, upon these and other reasons, the opinion of the Court
that the information is not made good by the allegation that the
offense was committed against the provisions of certain sections of
the act of Congress.
Is it cured by any evidence showing that in point of fact the
vessel and cargo are liable to forfeiture?
The rule that a man shall not be charged with one crime and
convicted of another may sometimes cover real guilt, but its
observance is essential to the preservation of innocence. It is
only a modification of this rule that the accusation on which the
prosecution is founded should state the crime which is to be proved
and state such a crime as will justify the judgment to be
pronounced.
The reasons for this rule are
1st. That the party accused may know against what charge to
direct his defense.
2d. That the court may see with judicial eyes that the fact
alleged to have been committed is an offense against the laws, and
may also discern the punishment annexed by law to the specific
offense. These reasons apply to prosecutions in courts of admiralty
with as much force as to prosecutions in other courts. It is
therefore a maxim of the civil law that a decree must be
secundum allegata was well as
secundum probata.
It would
Page 11 U. S. 395
seem to be a maxim essential to the due administration of
justice in all courts.
It is the opinion of the Court that this information will not
justify a sentence condemning the schooner
Hoppet and that
part of her cargo which is not alleged to be of the growth,
produce, or manufacture of either France or Great Britain or the
dependencies of either of those powers, whatever the fact may
be.
There are certain wines imported in this vessel alleged to be of
the growth, produce, or manufacture of France. These wines were
exported from the United States to St. Bartholomews, where they
were purchased by the consignee and shipped to New Orleans. It is
contended that having been imported into the United States previous
to the passage of the nonintercourse law, their exportation and
reimportation does not subject them to the penalties of that law.
But the Court is unanimously of opinion that they come completely
within the provisions of the act of Congress.
It is the opinion of the Court that there is no error in that
part of the sentence of the District Court of Orleans which
condemns the wines in the information mentioned as forfeited to the
United States, but that there is error in that part of the sentence
which condemns the schooner
Hoppet and the residue of her
cargo.
This Court doth therefore adjudge and order that so much of the
sentence of the district court as condemns the schooner
Hoppet and the thirty-five hogsheads of molasses, five
barrels of molasses, twelve dozen of cocoa nuts and twelve pounds
of starch, part of the cargo of the said schooner, be and the same
is hereby
Reversed and annulled, and the said sentence as to the
residue of the cargo is in all things affirmed.
