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
were transshipped from a small sloop called the
into the schooner Paulina
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,"
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
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
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,"
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
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,
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
Page 11 U. S. 60
MARSHALL, CHIEF JUSTICE, delivered the opinion of the Court as
The libel in this case, as amended in the Circuit Court for the
District of Rhode Island, claims the schooner Paulina
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
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
The fact made out in the present case is this:
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
a small vessel of fifteen tons burden,
accustomed to ply between Providence and Newport. The lading of the
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
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
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
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
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,"
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
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
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
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,"
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.
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
carried a considerable part of her cargo to the
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
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
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
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,
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
erroneous, and ought to be
The court certified that there was probable cause of
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
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.