The general principle declared in
The Kate and of
The Sarah, supra, pp. <|69 U.S. 366|>366, <|69
U.S. 372|>372, acted on in a case of the same general type, but
where the facts were more close.
Where the size, build, equipment, and cargo of a vessel -- the
nonappearance and doubtful existence of her asserted owners, the
nonproduction by the claimant of important witnesses, and other
circumstances -- lead to a presumption that her purpose is to
engage in the slave trade and no attempt is made to repel that
presumption by explaining the suspicious circumstances, the vessel
may be condemned as a slaver. The fact that she is cleared for
China does not of itself repel the presumption, the clearance being
vita Ambriz, a Portuguese port on the west coast of Africa, and
that port being within about one hundred miles of the slave
coast.
Thus, like the two preceding cases, was a libel filed in the
District Court for the Southern District of New York against
Page 69 U. S. 376
a vessel in the port of that city, under acts of Congress
[
Footnote 1] prohibiting the
equipment, loading, and other preparation of the vessel for the
purpose of carrying on a trade in slaves and like fitting
&c., and causing the vessel to sail for the
purpose of
procuring negroes, mulattoes, and persons of color to be held,
sold, or otherwise disposed of as slaves &c. The libel was
served October 23, 1860. On the 30th, John Morris,
"intervening for the interest of himself as owner of the vessel
and carrier of the cargo, appears before the honorable court and
makes claim to the said vessel &c.,"
and averred himself to be true and
bona fide owner
&c. The district court condemned the vessel. On appeal, the
circuit court affirmed the decree. Appeal here. The facts were
thus:
On the 5th of September, 1860, one J. T. Woodbury purported to
sell the vessel to
John Morris of New York "for the sum of
$12,000."
The vessel was a bark of about 365 tons, 114 feet 8 inches long,
26 feet 6 inches wide, 13 feet 3 inches deep, with two decks and
three masts.
The outward foreign manifest, sworn to by Edward Mitchell, who
purported to be captain, on the 12th of September, 1860,
represented her as bound for
Hong Kong via Ambriz, with a
crew of fourteen men and a cargo valued at nearly $19,000. The
captain swore that this manifest contained "a full, just, and true
account of all the goods, and then actually laden on board said
vessel," that he will report any additional cargo, and also, that
"said cargo is truly intended to be landed in the port of Hong
Kong, via Ambriz."
The shipper's manifest purported to report of cargo shipped by
Anthony Tuero, embracing the same goods &c., contained in the
manifest sworn to by the captain, and the oath, taken on the 12th
of September, 1860, was that "the said merchandise is truly
intended to be exported to Ambriz." Tuero himself, whose deposition
was taken in the district court, though he was not examined in the
circuit,
Page 69 U. S. 377
stated the same thing -- namely that the cargo was to be
discharged at Ambriz and that he was not to have anything to do
with the vessel afterwards.
The bark had a between-deck made of rough boards, about 5 1/2
feet below the main deck; two surf boats, besides four other small
boats, which were manifested, with oars, rudders, tillers &c.
The surf boats were covered and had hatches. A lot of lumber was
stowed between decks, manifested as 100 pieces 4 by 6 timber and
762 pieces pine boards, 17 coils of rope, 3 bolts of sail duck, 8
anchors, coopers' tools, nails, and a variety of things, usual in
fitting a slaver, but not
unusual in fitting any vessel.
She had 12 swivels, and quantities of muskets and powder.
The cargo included 80 barrels of bread, 85 barrels and 100 half
barrels of rice, 57 barrels mess beef and pork, 10 barrels of
flour, beans, meal &c., 3 barrels of vinegar, sixty fathoms of
chain, 40 kegs of paint, 10 cans of linseed oil, 4 cans of spirits
of turpentine, 96 bundles of white oak shooks, 4 hogsheads of
shucks for heads of casks, 2 boxes of coopers' tools, 114 casks
filled with water, 10 furnaces and boilers, and a large lot of
firewood, and 375 sheets of copper. Other portions of the cargo
were blankets, coarse cotton goods, muskets, powder, rum, wine
&c.
All this cargo was perfectly suited to the slave
trade.
As respected Morris, it appeared that no man of that name was,
on the 6th September, when the bill of sale was made, known to be
in the shipping business of New York. No person, indeed, of the
name was known by clearing clerks, some of whom were examined, or
others at the custom house at all. Nor had he been ever heard of by
one Machado, a man extensively engaged in the African trade. The
vessel was appraised by the custom house appraisers at $9,000, the
cargo at $11,681. The partner of Woodbury -- the alleged vendor of
the vessel and confessedly a real person, one Schmidt, a ship
broker -- did not know Morris, or what his business was, or whether
he lived in New York, or whether he was "an owner or go=between."
He had only seen him once, in the street, two months before.
Page 69 U. S. 378
Woodbury was at the hearing in the district court in town, but
was not called by the claimant, nor was the witness to the
execution of the bill of sale examined or produced. When appeal was
taken to the circuit court in Morris' name on the 7th of February,
1861, the petition was signed by his counsel, and the bond then
given for appeal. It was executed by one Fogerty, surety for
Morris, but not by Morris himself. Fogerty swore that he had never
heard of such a person as Morris till that morning, and that he had
signed the bond because the counsel requested him.
Ambriz is a Portuguese town on the west coast. It was testified
that there is no regular trade to Hong Kong via that port and that
vessels never clear from New York for China via any such place,
though they do sometimes from South America. It was testified also
that the ordinary size of vessels in the trade, on the west coast
of Africa is from 200 to 400 tons, that of those trading to China
averaging from 800 to 1,200.
On the other hand, it seemed, if the testimony of
Schmidt was to be received as true, that the $12,000 purchase money
of the vessel was actually paid by Morris to his partner Woodbury.
No manacles nor any unusual supply of medicines was found on the
vessel, which was unladed carefully. Her size and equipments,
though fitting her for a slaver, were not unfit for a lawful voyage
to the region where she purported to be going.
All articles
found on the vessel were entered on the manifest. Both vessel
and cargo were consigned to one Lievas, superintendent of the
English mines at Ambriz, who it was not suggested had been
concerned at any time in the slave trade. Ambriz itself was a town
of about 3,000 inhabitants, having a certain amount of commerce,
but not any considerable amount; the same trade as the Congo River
-- palm oil, ivory, hides, pepper and gum being shipped from the
district. It is about 100 miles from any point where slaves are
got. It has a custom house, and exacts duties. It appeared that one
house in Salem, Massachusetts, testified to be "respectable,"
traded there, that barks of about the same size with the
Weathergage and
Page 69 U. S. 379
of a structure not essentially different made voyages to the
place; that temporary decks were sometimes highly convenient, and
were used accordingly in lawful voyages to Africa, and surf boats
also, these last being useful in loading and unloading. Large
quantities of water, too, is sent out in casks, "the water being
pumped out and oil from the region being poured in, just as the
casks stand." The cargo, generally, would be "as likely to go for
legal as illegal purposes." The witness, however, who testified to
this, and that $20,000 would not be an excessive value for a cargo
bound to Ambriz, had never known "just such a cargo" sent there as
the one on the
Weathergage, nor known of any vessel sent
to Hong Kong via Ambriz, while neither knew he of any slave trade
via China. He had been established for ten years trading to the
western coast of Africa and Gulf of Guinea, and had sent from
seventy eight to one hundred vessels there.
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
This was a libel of information in a cause of seizure and
forfeiture, and the case is brought here by an appeal from the
decree of the Circuit Court of the United States for the Southern
District of New York. Substance of the charge, as contained in the
libel of information, is that the bark
Weathergage was
fitted, equipped, loaded, and otherwise prepared in the port of New
York for the purpose of carrying on a trade or traffic in slaves to
some foreign country or for the purpose of procuring negroes,
mulattoes, or persons of color, from some foreign country, to be
transported to some other port or place, to be held, sold, or
otherwise disposed of as slaves, or to be held to service or labor.
[
Footnote 2]
Process was served on the 23d day of October, 1860, and on the
30th of the same month, John Morris, intervening
Page 69 U. S. 380
for the interest of himself as owner of the vessel and as the
carrier of the cargo, appeared before the court and made claim to
the same, and was allowed to make defense. Testimony was taken, and
a decree condemning both vessel and cargo was entered in the
district court. Claimant appealed to the circuit court, and the
record shows that additional testimony was taken in that court, and
that the decree of the district court was subsequently in all
things affirmed. Appeal was then taken by the claimant to this
Court, and the parties have here been again fully heard.
1. Condemnation and forfeiture were decreed both in the district
and circuit courts upon the ground that the evidence shows that the
vessel was fitted, equipped, and loaded, or caused to sail, for the
purpose of engaging in the slave trade. Claimant denies that the
finding was warranted by the evidence, and that is the principal
question in the case. Undoubtedly it is the preparation of the
vessel and the purpose for which she is to be employed that
constitute the offense and draw after it the penalty of forfeiture.
As soon, therefore, as the preparations have progressed so far as
clearly and satisfactorily to show the purpose for which they are
made, the right of seizure attaches. [
Footnote 3]
Contrary to the views of the claimant, the counsel for the
United States insist that the character of the preparations for the
projected voyage was such as to indicate clearly that the purpose
was the same as that charged in the libel of information. They
admit that the circumstances given in evidence show that the
projectors of the voyage had skillfully determined to give it the
appearance of an honest and lawful enterprise, but they insist that
a careful scrutiny of the evidence will show that the guilty
purpose is not so successfully covered up with the garb of
innocence as to conceal the true features of the transaction.
2. Looking at the evidence, it is apparent that it is, in its
general characteristics, substantially the same as that
exhibited
Page 69 U. S. 381
in the other slave trade cases decided at the present term.
Differences are seen in the details of the evidence, but the
quality and general nature of the proofs are substantially similar.
Title of the bark, on the 5th day of September, 1860, appears to
have been in one J. T. Woodbury, and the record shows that he on
that day made a bill of sale of the same to one John Morris, of New
York, for the sum of twelve thousand dollars. Counsel of the
claimant introduced the bill of sale of the vessel, but they did
not examine the person who witnessed its execution.
3. Proofs show that the
Weathergage is a bark with two
decks and three masts, and that she is of the burden of three
hundred and fifty five tons. Her outward foreign manifest, sworn to
by the master, Edward Mitchell, on the 12th of September, 1860,
represents her as bound to Hong Kong via Ambriz, with a crew of
fourteen men and a cargo valued at nearly nineteen thousand
dollars. Statements of the manifest are that it contains "a full,
just, and true amount of all the goods then actually laden on board
the vessel," and that the "cargo is truly intended to be landed in
the port of Hong Kong via Ambriz," but the shipper's manifest
states that the merchandise is truly intended to be exported to
Ambriz, which is a place on the coast of Africa.
4. Suspicion attaches strongly to the equipment of the vessel.
She had a temporary between deck, made of rough boards, about five
and a half feet below the main deck, and which was not necessary to
carry the cargo laden on board, and she had a large quantity of
lumber stowed between decks and manifested as lumber, and eight
thousand three hundred and eighty two feet of pine boards. She had
two surf boats, besides four other small boats, together with
rudders and tillers and "oars for the same." In addition to the
articles mentioned, she also had seventeen coils of rope, three
bolts of sail duck, eight anchors, coopers' tools, nails, and
almost every variety of article which is essential in the fitment
of a slaver. Mention should also be made that she had as part of
her fitment, though included as cargo, twelve swivels and a large
quantity of muskets and powder.
Page 69 U. S. 382
5. Portions of the cargo proper should also be noticed as
affording strong grounds of presumption that the purpose of the
voyage was such as is charged in the information. Among other
articles, it contains eighty barrels of bread, eighty five barrels
and one hundred half barrels of rice, fifty seven barrels of beef
and pork, besides four barrels of flour, and six barrels of beans
and meal, and three barrels of vinegar. Besides the articles
mentioned, the manifest also shows that she had one hundred and
fourteen casks filled with water, and shooks and headings to make
ninety six more, together with forty bundles of iron for hoops such
as is used on such casks. She had also ten furnaces and boilers,
with a large quantity of firewood, and three hundred and seventy
five sheets of copper. Argument for the claimants is that the cargo
was as suitable for a lawful voyage to the supposed port of
destination, as for the purpose charged in the libel of
information, but it is not possible to accede to that proposition.
On the contrary, it seems to us, in view of the evidence in the
case, that the manifest is a "more complete one, in every respect,
for engaging in the slave trade" than anyone heretofore presented
to the Court.
6. Although the master testified that the cargo was intended to
be landed at Hong Kong, the great weight of the evidence shows that
it was destined for Ambriz or some other port on the coast of
Africa. The shipper was not called as a witness in the district
court, but he was examined in the circuit court. He testified that
he owned and shipped the cargo and that it was to be discharged at
Ambriz, and that he was not to have anything to do with the vessel
after the cargo was discharged. Libellants prove that there is no
trade from New York to Hong Kong or any other port in China by the
way of Ambriz or any other port on that coast, and that no vessel
ever cleared from the port of New York for such a voyage.
7. None of the witnesses on the one side or the other know the
alleged owner and claimant of the vessel. Satisfactory proofs were
introduced, showing that there was not then and has not been since,
to the time of the hearing, any
Page 69 U. S. 393
person by that name engaged in the shipping business in the port
of New York. Two or more clearance clerks were examined, and they
testify that they never heard of a businessman there of that name.
Persons who have for years been engaged in the China and African
trades were also examined, and they testify to the same effect.
Even Schmidt, the ship broker and partner of the person who sold
the vessel for twelve thousand dollars, testifies that he never saw
him but once, and that was in the street, and that he did not know
whether he was the actual owner or merely the agent of the real
purchaser of the vessel. Woodbury, the grantor of the vessel, was
not called by the claimant. When the appeal was taken in the
circuit court, the petition was signed by his counsel, and the bond
given on the appeal, although drawn for the signature and seal of
the claimant, was executed only by a surety, and the surety
testifies that he never heard of such person until the morning of
the day when his examination as a witness took place. Neither the
master nor any of the crew were called to explain any of these
inculpatory circumstances, nor is there any attempt to afford any
explanation upon the subject. For these reasons, we are of the
opinion that the finding in the court below was clearly correct.
The decree of the circuit court is therefore,
Affirmed.
[
Footnote 1]
Acts of 22d of March, 1794, and 20th of April, 1818.
[
Footnote 2]
1 Stat. at Large 347; 3
id. 451.
[
Footnote 3]
The Emily and
Caroline, 9 Wheat. 381;
The
Plattsburg, 10 Wheat. 133;
United
States v. Gooding, 12 Wheat. 460.
