The Pitt, 21 U.S. 371 (1823)

U.S. Supreme Court

The Pitt, 21 U.S. 8 Wheat. 371 371 (1823) The Pitt

21 U.S. (8 Wheat.) 371

APPEAL FROM THE CIRCUIT

COURT OF DELAWARE

Syllabus

The Nonintercourse Act of 18 April 1818, c. 65, prohibits the coming of British vessels to the ports of the United States from a British port closed against the commerce of the United States, either directly or through an open British port, but it does not prohibit the coming of such vessels from a British closed port through a foreign port (not British) where the continuity of the voyage is fairly broken.

This was an allegation of forfeiture in the District Court of Delaware, against the British sloop Pitt, under the Nonintercourse Act of April 18, 1818, c. 65, the first section of which provides

"That from and after 30 September next, the ports of the United States shall be and remain closed against every vessel owned wholly or in part by a subject or subjects of his Britannic Majesty coming or arriving from any part or place in a colony or territory of his Britannic Majesty that is or shall be by the ordinary laws of navigation and trade closed against vessels owned by citizens of the United States, and such vessel that in the course of the voyage shall have touched at or cleared out from any port or place in a colony or territory of Great Britain which shall or may, by the laws of navigation and trade aforesaid, be open to vessels owned by citizens of the United States shall nevertheless be deemed to

Page 21 U. S. 372

have come from the port or place in the colony or territory of Great Britain, closed as aforesaid against vessels owned by citizens of the United States, from which such vessel cleared out and sailed before touching and clearing out from an intermediate and open port or place as aforesaid, and every such vessel so excluded from the ports of the United States that shall enter or attempt to enter the same in violation of this act shall, with her tackle, apparel, and furniture, together with the cargo on board such vessel, be forfeited to the United States."

The vessel in question, belonging to British subjects in the Island of Jamaica, departed from the port of Kingston in that island on 16 August, 1818, with a cargo belonging to the same owners and a clearance for San Blas, and arrived at Old Providence, a small Spanish island on the coast of Honduras, on the 22d of the same month. At this island the cargo was discharged and another taken in consisting principally of Caracas cocoa, fustic, and Spanish hides. She sailed from thence 6 September following with orders to come to anchor off the lighthouse at Cape Henlopen, the western cape of Delaware Bay, and there waited instructions from the agents of the owners at Philadelphia. The vessel arrived off Fenwick's Osland, about 30 miles south of the Delaware, on 29 September, 1818, when a pilot boarded her and delivered to the master written instructions from the agents of the owners not to enter the Delaware, but to proceed to Halifax or Bermuda. But the master

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stated that his bread and water were insufficient for the voyage, and proceeded off the capes of the Delaware to procure a supply of those articles, but was compelled (as alleged) by stress of weather, on 1 October, 1818, to put into the Whorekiln Roads opposite to Lewiston, where the vessel was seized by the officers of the revenue for a breach of the act before mentioned.

The district court pronounced a decree of condemnation, which was reversed in the circuit court, and the cause was then brought by appeal to this Court.

Page 21 U. S. 377

MR. JUSTICE JOHNSON delivered the opinion of the Court.

This vessel, with her cargo, was condemned in the District Court of Delaware for a violation of the Act of April, 1818, entitled, "An act concerning navigation." That decree having been reversed in the circuit court, the cause is now brought up by appeal to this Court.

Several grounds in support of the latter adjudication have been insisted on in the argument, but

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the Court deems it unnecessary to advert to more than one, as that will dispose of the case finally and fix the most important point which it presents, to-wit the correct construction of the first section of the act in question.

We are unanimously of opinion that the construction insisted on by the claimant's counsel is the only correct construction. It is perfectly clear that the case of this vessel is not literally comprised within the provisions of this act, for it only prohibits a voyage from a closed port of Great Britain to a port of the United States, and the purport and effect of the latter part of the first clause, amounts to no more than a declaration, that the continuity of such a voyage shall not be broken by the act of touching at, or clearing out from, any port of a colony or territory of Great Britain which may be open to American shipping.

But it has been contended in behalf of the appellants that although not within the letter, it is within the mischief intended to be obviated by the statute, and therefore subject to the penalty.

If by this argument it be intended to maintain that acts done in fraud of a law are acts in violation of the law, the principle may be conceded; but we fully concur in the views of the policy of this law, as explained by the claimant's counsel, and are satisfied that the latter provisions of the first clause were solely intended to guard against the effects which the permission of a general trade at one or more of the British colonial ports, may have had in defeating the policy of the act altogether. The legislature had not in view a fair

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unaffected trade through the ports of any other nation. It is obvious that attempts might have been made to evade the law by an affected trade through an intermediate port, and it is not to be supposed that this government or its courts would have failed to check such an attempt; but we are fully satisfied that this was not such a case. The evidence of fairness is full and unequivocal. There was time, even upon ordinary calculation, to have completed the voyage from Jamaica to Old Providence, and thence to Philadelphia, before the prohibition was by law to take effect, as is proved by the fact of her having arrived in the Delaware at a time which left it doubtful whether she was or was not within the period specified for its suspension. The cargo, too, was taken in at the port of Old Providence, and was of a description well known to belong to the trade of that port, from its having been the depot of captures, and probably of a covered trade from the continent of South America. Everything conspires to exempt the vessel from the charge of fraudulent intention, and therefore leaves no ground for the condemnation.

Decree of the circuit court affirmed.