The principles of the preceding case
(The Kate),
redeclared in this case, and a vessel bound to the west coast of
Africa, condemned under circumstances -- individually not very
strong, but collectively of weight raising a presumption, which
there was no attempt to overcome by explanation, that she was about
to engage in the slave trade.
Like the preceding case, this was a libel of forfeiture, filed
in the District Court for the Southern District of New York,
against a vessel and cargo, under the 1st section of the Act of
Congress of 22 March, 1794, [
Footnote 1] and the 2d of that of 20th April, 1818,
[
Footnote 2] prohibiting
persons engaging in the slave trade.
Page 69 U. S. 367
The former declares that no person shall
"build, fit, equip, load, or otherwise prepare any ship or
vessel, within any port or place of the United States, nor shall
cause any ship or vessel to sail from any port or place within the
same, for the purpose of carrying on any trade or traffic in
slaves, to any foreign country; or for the purpose of procuring
from any foreign kingdom, place, or country, the inhabitants of
such kingdom, place, or country, to be transported to any foreign
country, port, or place whatever, to be sold or disposed of as
slaves, any ship or vessel so fitted out &c., to be forfeited
to the United States,"
&c.
The latter is of an import essentially the same, its language
being, "for the purpose of procuring any negro, mulatto, or person
of color."
One Couillard intervened on the 3d of May, 1861, as claimant and
bailee of the cargo, which was stated to belong to R. J. Arguelles,
who, however, did not in any way appear. Arguelles, or some person
bearing that name, had sworn to it as of the value of $22,000.
There was no denial that the vessel was on her voyage to the
African coast. Her clearance, in fact, had been for Cape
Palmas.
The Sarah was a bark of about 260 tons, 103 feet long, 25 feet
broad, 11 feet 3 inches deep, with three masts, was similar to the
Kate, condemned (
supra, p. <|69 U.S.
366|>366) for being engaged in the slave trade. She was
clipper-built, intended for fast sailing, with high and light
spars, calculated to carry a press of canvas, and sharp. Her
cooking galley was 19 to 20 feet long, and wide in proportion. She
had on deck a number of extra spars, similar to those on the Kate,
and besides her ordinary boats, two large surf boats. The manifest
showed a large quantity (19,448 gallons) of what is called "oil
cask shooks," with a proportionate quantity of iron hoops and
rivets. These would hold water as well as oil. It was proved that
these casks -- "oil casks" -- are found in large quantities on
nearly all vessels condemned as slavers. On examining the cargo, 15
or 16 barrels of beef or pork not on the manifest, also 16 barrels
of bread and 6 barrels of flour, and 1 tierce of rice, marked for
the homeward
Page 69 U. S. 368
passage in plain letters, were found on the vessel. There were
half a dozen water casks on deck, besides the casks in shucks on
manifest, which were of the same style as those on board the
Kate.
The manifest showed 150 hogsheads of rum, also cases of
muskets.
On the 7th of March, 1861, Augustus Head, Jr., of Boston, had
purported to sell the bark to one "C. P. Smith, of the City of New
York," for $9,250, and he, on the 11th of March, sold her to
Couillard, the intervener, for $10,000. No proof of actual sale was
made. De Grew, a clerk in the custom house for seven years,
testified that, on the sale or transfer of slavers, he had noticed
that there are usually two or three transfers made previous to the
sailing; that he did not know of any P.C. Smith engaged in the
trade; that he had looked in New York city directories carefully
for C. P. Smith for five years; that the name was not there; and
had looked (though in vain) in one Brooklyn directory. The claimant
did not attempt to prove the existence of such a person. De Graw,
the clerk above mentioned, stated that he knew the principal houses
in New York engaged in the legal trade to the African coast, but
did not know any such persons as Couillard or Arguelles.
The deputy marshal who seized the bark stated that he seized her
fifteen miles down the New York Bay. When approaching, and within
half a mile of her, he saw through a spy glass that several persons
on board were examining the vessel he was on, and that immediately
after, from the vessel which they were watching, somebody threw a
box, about 2 by 3 feet in size, overboard, which sank. Couillard
was on board, in command, when this occurred. He gave no
explanation of the fact.
In addition to the facts already stated, it appeared that one
Miller, who had shipped under the name of Reed, had authority to
ship men for the voyage, and to exercise control in the absence of
Captain Couillard. He stated to a seaman named Delano that he was
to be the actual master
Page 69 U. S. 369
of the vessel. He shipped Delano under the name of Comstock and
paid his advance money.
Delano swore that Miller, "on board, acted as captain, mate, and
all hands," and signed receipts for the cargo. Miller, in the act
of employing Delano, represented himself as master of the vessel;
said "he was going to the coast of Africa; was going black
birding," and sometimes used the word "ebony," and tried to induce
the witness to go along by giving him liquor, and by promises of
large profits. He said, "If you go with me, you will be gone about
four months, and have about $3,000 or $4,000 when you get back." On
another occasion, he said that "he was going over to the coast of
Africa, and wanted me to go as second mate." Such, at least, was
the testimony of some of these parties. There was, however, no more
specific evidence against the vessel. No manacles nor unusual
supply of medicines were found on her, and the cargo was one which
would have suited a lawful voyage to the African coast.
The district court condemned the bark. The circuit court
affirmed the decree. Appeal here.
MR. JUSTICE CLIFFORD delivered the opinion of this Court.
This was a case of seizure and forfeiture, and the case comes
before the court on appeal from a decree of the Circuit Court of
the United States for the Southern District of New York.
Referring to the transcript, it will be seen that the libel of
information was against the bark Sarah, her tackle, apparel, and
furniture, and the lading on board, and that a decree was entered
in the district court condemning both the vessel &c., and her
cargo, as forfeited to the use of the United States. Appeal was
taken by the claimant to the circuit court, where the parties were
again heard, but the circuit court affirmed the decree, and the
claimant again appealed to this Court.
1. Allegations of the libel are founded upon the first
section
Page 69 U. S. 370
of the Act of the twenty-second of March, 1794, and the second
section of the act of the twentieth of April, 1818, prohibiting any
person or persons from engaging in the slave trade. In order to
entitle the libellants to a decree of condemnation, they must prove
either that the vessel was fitted, equipped, loaded, or otherwise
prepared for the voyage, or that she was caused to sail on the
voyage in which she was engaged for the purpose of carrying on a
trade or traffic in slaves to some foreign country, or for the
purpose of procuring from some foreign country &c., the
inhabitants of such country, to be transported to some other
foreign country, port, or place, to be sold or disposed of as
slaves, or for the purpose of procuring negroes, mulattoes, or
persons of color from some foreign country, to be transported to
any port or place whatsoever, to be held, sold, or otherwise
disposed of as slaves, or to be held to service or labor. [
Footnote 3]
2. Intervening for the interest of himself as owner of the bark
and bailee of the cargo, the appellant, on the third day of May,
1861, made claim in the district court to the vessel and cargo,
averring that he was in possession of the same at the time of the
seizure, and that he was the true and
bona fide owner of
the vessel and the bailee of the cargo on board. One of the charges
is the fitting out of the vessel, and the other is the causing the
vessel to sail, either of which, if proved, will induce a
forfeiture. Full proof is exhibited that the vessel had completed
her fitting, equipment, and lading, and that she was avowedly
proceeding on a voyage to the west coast of Africa, when she was
boarded and seized. Obviously, therefore, the main question is one
of fact, whether she was fitted out, equipped, and loaded, and was
proceeding to that coast for the purpose of a lawful trade, or for
the purpose of engaging in the trade or traffic in slaves.
Undoubtedly the statutory offense is completed when the
preparations for the voyage have reached a stage which shows
satisfactorily that the purpose of the fitting and equipment
Page 69 U. S. 371
was such as is described in the libel of information. Plainly,
the object of the law is to prevent the preparation of vessels in
our ports for that trade, and consequently the law looks at the
intention, and confers the authority to take from the offender the
means required to enable him to perpetrate the mischief. [
Footnote 4]
3. Argument for the United States is that the evidence clearly
shows that the voyage for which the bark was fitted and prepared,
and which she commenced from the port of New York under a clearance
for Cape Palmas, on the western coast of Africa, was undertaken for
the purpose and with the intent of engaging in the slave traffic.
Claimant denies that proposition, and insists that the evidence
offered to prove the allegation is wholly insufficient to warrant
any such finding, and, consequently, that both the district and
circuit courts were in error. He admits, however, that the
character of the vessel, her size, build, and equipment, do not
absolutely exclude the conclusion that she was capable of such
service. Denial of the fact involved in the admission could not
well be made, because the proofs are full to the point, not only
that she was capable of such service, but that she was in all
respects well suited to the service, and indeed that she was such a
vessel as those engaged in the nefarious traffic usually select as
best modeled for such an adventure.
4. Unlike what is usual in cases of this description, the
destination of the vessel is admitted; and it cannot be denied that
the destination would have carried her to markets where it is known
that the traffic in slaves is prosecuted. Proofs show that she was
a vessel of about two hundred and sixty tons burden; that she was a
hundred and three feet in length, twenty five feet in breadth, and
eleven feet and three inches deep. She was clipper built, with
three masts, and was adapted for a large press of canvas, and was
fast sailing. Expert witnesses also say that she had a number of
extra spars on her deck, similar to other vessels condemned as
slavers, and that besides her ordinary boats, she had two
Page 69 U. S. 372
large surf boats not needed by a vessel bound to a regular
commercial port. Certain articles of the cargo are also significant
of an unlawful purpose. Unusually large quantities of shooks for
casks appear on the manifest, and also a proportionate quantity of
iron for hoops and rivets for fastening the same. "Casks in shooks"
are the words of the manifest, and the quantity stated is nineteen
thousand four hundred and forty eight gallons for oil; but it is
quite obvious that the shooks, when set up and hooped, would be as
suitable to hold fresh drinking water as oil; and the evidence
shows that they are found in large quantities on most or all of the
vessels condemned as slavers. Some half dozen water casks were on
deck, besides the casks in shooks appearing on the manifest.
Fifteen barrels of beef and pork were found on board not on the
manifest, and sixteen barrels of bread, and six barrels of flour,
and one tierce of rice, plainly marked for the homeward voyage.
Other articles on the manifest, which deserve notice, are ten cases
of muskets, eleven hogsheads of tobacco, and one hundred and fifty
hogsheads of rum, which, the expert witnesses say, is a well known
article of trade in the purchase of negroes. One of the expert
witnesses, who had been an entrance and clearance clerk in the
custom house at New York for seven years, testified that he had
noticed that vessels designed to be used in the slave trade were
usually transferred two or three times just previous to the sailing
of the vessel; and in this case it appears that the bark was, on
the seventh day of March, 1861, sold by one Augustus Head to one C.
P. Smith, of the City of New York, for the sum of nine thousand two
hundred and fifty dollars; and that the purchaser, four days
afterwards, conveyed the same to the present owner. None of the
witnesses know the last named grantor, and one of them testifies
that he has looked carefully into the directories of the City of
New York and of the City of Brooklyn for the last five years, and
that he can find no such name. Suspicion also attaches to the
conduct of the present owner, both in his character as such, and as
master for the voyage, and he has not employed any proper means to
repel that suspicion.
Page 69 U. S. 373
He has produced a bill of sale from C. P. Smith, but he has not
introduced the grantor as a witness or either of the witnesses of
the bill of sale. And he has failed to show, what might easily be
proved, if true, that he actually paid the consideration expressed
in the bill of sale or any other sum for the vessel, or that there
is or ever was any such person as the one therein named as his
grantor.
5. Common prudence required him to explain these matters, and
yet he has neglected to do so; and he has also neglected to furnish
other explanations of equal importance: as for example the bill of
lading discloses the fact that the vessel was under a charter
party, but he neither produces the instrument nor attempts to
account for its absence. Testimony was also introduced by the
libellants showing beyond controversy that as the boarding officers
approached the vessel for the purpose of seizing her, some person
or persons on board the bark were seen to throw overboard a large
box, which immediately sank, and yet the claimant does not attempt
to explain the transaction. Although he claims as bailee of the
cargo, still he offers no proof to show where or by whom it was
purchased, or how or by whom it was paid for, and furnishes no
explanation upon the subject. Evidence to show that he was engaged
in any legitimate trade to that quarter of the globe, or that he
had any connection with any commercial house lawfully trading on
that coast, is entirely wanting, and it does not appear that he had
made any arrangements for an honest return cargo. Large quantities
of beef, pork, and bread, not on the manifest, were found on board,
but he offers no explanation of the matter, and does not even
examine the mate or anyone of the crew. Shipper of the cargo, R. J.
Arguelles, is not introduced, although it appears that the value of
the shipment, as sworn to by him, was twenty two thousand dollars;
still, he does not appear as claimant, nor is he examined as a
witness. Appellant claims the cargo as bailee, but he nowhere
states or proves for whom he is bailee, and nothing in the case
shows satisfactorily who is the real owner of the goods.
Page 69 U. S. 374
6. Considered as a whole, the various circumstances to which
reference has been made afford very strong ground of presumption
that the allegations of the libel of information are true. Evidence
which satisfies the mind of the truth of the fact in dispute, to
the entire exclusion of every reasonably doubt, says Mr. Starkie,
constitutes full proof of the fact, and it would seem that the
combined force of these various circumstances can scarcely fail to
generate that full belief. [
Footnote 5]
Doubt cannot be entertained, that the circumstances adverted to
are fully established, and it is certain that they are consistent
with the hypothesis assumed by the United States. Some of them, it
must be admitted, if separately considered, are not of a conclusive
nature and tendency, but taken as a whole, it is difficult to say
that they do not satisfy the mind of the truth of the charge, even
to the exclusion of every reasonable doubt.
7. Suppose it were otherwise, however, still there is direct
evidence in the case which, when considered in connection with the
circumstantial facts, fully establishes the charge. Reference is
here made to the statements of the mate, who is proved to have
shipped under a false name, and the whole evidence shows that he
had authority to ship men for the voyage, and to exercise control
in the absence of the master. Suggestion of the appellees is that
he was to have been the master for the voyage, and it must be
admitted that there are many facts and circumstances in the case
which give countenance to that theory, but it is unnecessary to
determine the point in this investigation, as it is clearly proved
that he was authorized to ship men as part of the crew, and to
perform the duties of master, when the person recognized as such in
the ship's papers was absent. Seaman Delano was shipped by him
under the name of Comstock, and he collected his advance money from
the clerk of the shipping notaries, and paid it to the seaman as
one of the crew. Delano testifies that the mate "acted as master,
mate and all
Page 69 U. S. 375
hands," and it is fully shown that he signed receipts for cargo.
While in the act of employing the seaman, when clearly he was
acting as master of the vessel, he stated that he was going to the
coast of Africa, and that he was to be master of the vessel. He
also "said he was going blackbirding," and endeavored to persuade
the witness to enlist and go with him, by promises of large
profits. Among other things, he also stated that they would be gone
about four months, and that the witnesses, if he would go, would
have three or four thousand dollars when he got back, and on
another occasion, he stated that the bark was going on a trading
voyage to the African coast, and would probably bring back some
negroes. Viewed in connection with the circumstantial evidence,
these statements are regarded as affording full proof of the truth
of the allegations contained in the libel of information. Such were
the views of the district and circuit courts, and we have no doubt
they are correct.
The decree of the circuit court is therefore
Affirmed.
[
Footnote 1]
1 Stat. at Large 347.
[
Footnote 2]
3
id. 450.
[
Footnote 3]
1 Stat. at Large 347; 3
id. 451.
[
Footnote 4]
The Emily and
Caroline, 9 Wheat. 381.
[
Footnote 5]
1 Starkie on Evidence, p. 450.
