Upon an indictment under the slave trade act of 20 April, 1818,
ch. 373, against the owner of the ship, testimony of the
declarations of the master, being a part of the
res gestae
connected with acts in furtherance of the voyage and within the
scope of his authority as agent of the owner in the conduct of the
guilty enterprise is admissible in evidence against the owner.
Upon such an indictment against the owner charging him with
fitting out the ship with intent to employ her in the illegal
voyage, evidence is admissible that he commanded, authorized, and
superintended the fitment through the instrumentality of his
agents, without being personally present.
It is not essential to constitute a fitting out under the acts
of Congress that every equipment necessary for a slave voyage, or
any equipment peculiarly adapted to each a voyage, should be taken
on board; it is sufficient if the vessel is actually fitted out
with intent to be employed in the illegal voyage.
In such an indictment it is not necessary to specify the
particulars of the fitting out; it is sufficient to allege the
offense in the words of the statute.
Nor is it necessary that there should be any principal offender
to whom the defendant might be aiding and abetting. These terms in
the statute do not refer to the relation of principal and accessory
in cases of felony; both the actor and he who aids and abets the
act, are considered as principals.
It is necessary that the indictment should aver that the vessel
was built, fitted out, &c., or caused to sail, or be sent away
within the jurisdiction of the United States.
An averment that the ship was fitted out, &c. "with intent
that the said vessel should be employed" in the slave trade is
fatally defective, the words of the statute being, "with intent to
employ" the vessel in the slave trade, and exclusively referring to
the intent of the party causing the act.
Objections to the form and sufficiency of the indictment may, in
the discretion of the court, be discussed and decided during the
trial before the jury, but generally speaking they ought regularly
to be considered only upon a motion to quash the indictment or in
arrest of judgment or on demurrer.
In criminal proceedings, the
onus probandi rests upon
the prosecutor, unless a different provision is expressly made by
statute.
Page 25 U. S. 461
This was a prosecution in the Circuit Court of Maryland against
the defendant, Gooding, under the Slave Trade act of 20 April,
1818, ch. 373. The indictment alleged (1) that the said Gooding,
being a citizen of the United States, after the passing of the act
of the Congress of the United States entitled
"An act addition to an act to prohibit the introduction of
slaves into any port or place within the jurisdiction of the United
States from and after the first day of January in the year of our
Lord 1808 and to repeal certain parts of the same,"
that is to say, after 20 April, 1818, to-wit, on 30 September,
1824, at the District of Maryland, did fit out for himself, as
owner, in the port of Baltimore, within the jurisdiction of the
United States and within the jurisdiction of this Court, a certain
vessel called the
General Winder with intent to employ the
said vessel, the
General Winder, in procuring negroes from
a foreign country, to-wit, from the continent of Africa, to be
transported to another place, to-wit, to the Island of Cuba in the
West Indies, to be sold as slaves contrary to the true intent and
meaning of the act of Congress in such case made and provided, to
the evil example of all others in like case offending, and against
the peace, government, and dignity of the said United States.
2. That the said Gooding, a citizen of the said United States
and residing therein, to-wit, at the district aforesaid, after the
passing of the act of Congress aforesaid, to-wit on the day and
year last aforesaid, within the jurisdiction of this Court, at the
district aforesaid, did, for himself, as owner, send away from the
port of Baltimore, within the jurisdiction of the United States, a
certain other vessel, called the
General Winder, with
intent to employ the said vessel, the
General Winder, in
procuring negroes from a foreign country,
Page 25 U. S. 462
to-wit, from the continent of Africa, to be transported to
another place, to-wit, to the Island of Cuba, to be sold as slaves,
contrary to the true intent and meaning of the act of Congress in
such case made and provided, to the evil example of all others in
like case offending, and against the peace, government, and dignity
of the United States.
3. That the said Gooding, a citizen of the said United States,
and residing therein, after the passing of the act of Congress
aforesaid, to-wit, on the day and year last aforesaid, at the
district aforesaid, and within the jurisdiction of this Court, did
aid in fitting out for himself as owner, in the port of Baltimore,
within the jurisdiction of the United States, to-wit, at the
district aforesaid, a certain other vessel, called the
General
Winder, with intent that the said vessel, the
General
Winder, should be employed in procuring negroes from a foreign
country, to-wit, from the continent of Africa, to be transported to
another place, to-wit, to the Island of Cuba, to be sold as slaves,
contrary to the true intent and meaning of the act of Congress in
such case made and provided, to the evil example of all others in
like case offending, and against the peace, government, and dignity
of the said United States.
4. That the said Gooding, a citizen of the said United States,
and residing therein, after the passing of the act of Congress
aforesaid, to-wit, on the day and year last aforesaid, at the
district aforesaid and within the jurisdiction of this Court, did
abet the taking on board from one of the coasts of Africa divers
negroes, to-wit, 290, not being inhabitants nor held to service by
the laws of either of the states or territories of the United
States, of a certain other vessel, called the
General
Winder, for the purpose of selling such negroes as slaves,
contrary to the true intent and meaning of the act of Congress in
such case made and provided, to the evil example of all others in
like case offending, and against the peace, government, and dignity
of the said United States.
5. That the said Gooding, a citizen of the United States and
residing therein after the passing of the act of Congress
aforesaid, to-wit, on the day and year last aforesaid at the
district aforesaid and within the jurisdiction of this Court,
Page 25 U. S. 463
did, for himself as owner, cause to sail from the port of
Baltimore, within the jurisdiction of the United States, a certain
other vessel called the
General Winder, with intent that
the said vessel, the
General Winder, should be employed in
procuring negroes from a foreign country, to-wit, from the
continent of Africa, to be transported to another place, to-wit, to
the Island of Cuba, to be sold as slaves contrary to the true
intent and meaning of the act of Congress in such case made and
provided, to the evil example of all others in like case offending,
and against the peace, government, and dignity of the said United
States.
6. That the said Gooding, a citizen of the United States, and
residing therein, after the passing of the act of Congress
aforesaid, to-wit, on the day and year last aforesaid, at the
district aforesaid and within the jurisdiction of this Court, did,
for himself as owner, cause to be sent away from the port of
Baltimore, within the jurisdiction of the United States, a certain
other vessel, called the
General Winder, with intent that
the said vessel, the
General Winder, should be employed in
procuring negroes from a foreign country, to-wit, from the
continent of Africa, to be transported to a certain other place,
to-wit, to the Island of Cuba, to be sold as slaves, contrary to
the true intent and meaning of the act of Congress in such case
made and provided, to the evil example of all others in like case
offending, and against the peace, government, and dignity of the
said United States.
7. That the said Gooding, a citizen of the United States and
residing therein, after the passing of the act of Congress
aforesaid, to-wit, on the day and year last aforesaid, at the
district aforesaid and within the jurisdiction of this Court, did
for himself as owner or for other persons as factor fit out, equip,
load, or otherwise prepare a certain other ship or vessel called
the
General Winder, in the port of Baltimore, within the
jurisdiction of the United States, to-wit, at the district
aforesaid, or did cause the same ship or vessel, the
General
Winder, to be so fitted out, equipped, loaded, or otherwise
prepared, with intent that the said ship or vessel, the
General
Winder, should be employed in procuring negroes, mulattoes, or
persons of color, from a foreign kingdom, place or country, to-wit,
from the continent of Africa, to be transported to another port or
place, to-wit, to
Page 25 U. S. 464
the Island of Cuba, in the West Indies, to be there sold or
otherwise disposed of as slaves or held to labor or service
contrary to the true intent and meaning of the act of Congress in
such case made and provided, to the evil example of all others in
like case offending and against the peace, government and dignity
of the said United States.
At the trial in the circuit court, the United States offered
evidence that the defendant purchased of one McElderry the vessel
called the
General Winder, in the indictment mentioned,
and that said vessel was built in the port of Baltimore, also in
the said indictment mentioned. They further offered in evidence
that at the time said purchase was made, the said vessel was not
completely finished, and that the same was finished under the
superintendence of a certain Captain John Hill, who was appointed
by the defendant master of said vessel on her then intended voyage.
They also offered in evidence that the defendant was, at the time
when the offense laid in the indictment is charged to have been
committed and at the time of his purchase of the said vessel and
ever since has been a citizen of the United States, and has
constantly, from the time of the purchase of the said vessel till
the present period, been an actual resident of the said port of
Baltimore.
They further offered evidence that after the said purchase and
after the appointment of the said captain Hill as master as
aforesaid, the said Hill ordered various fitments for the said
vessel at the said port of Baltimore, which said fitments were
furnished for said vessel and afterwards on the order of said Hill
were paid for by the defendant. They also offered in evidence that
some of these fitments were peculiarly adapted for the slave trade,
and are never put on board any other vessels than those intended
for such trade; a part of such fitments so ordered by captain Hill
and paid for by the defendant, to-wit, three dozen of brooms,
eighteen scrapers, and two trumpets, were actually put on board the
General Winder in the port of Baltimore, the residue of
the equipments on board the
General Winder at the time of
her departure being such as are usual on board vessels carrying on
trade between said port and the West Indies. And the rest of such
fitments, peculiar to the slave trade as
Page 25 U. S. 465
aforesaid, were shipped at the said port of Baltimore on board
another vessel called the
Pocahontas, chartered by the
defendant. That the said vessel called the
General Winder,
sailed from the port of Baltimore, fitted as aforesaid and with the
said Hill as master, on or about the twenty-first day of August,
eighteen hundred and twenty-four, having cleared for the Island of
St. Thomas in the West Indies. That the other vessel called the
Pocahontas also sailed for St. Thomas from the port of
Baltimore with the part of the said fitments put on board her as
before mentioned, sometime in the month of September following.
They also gave evidence that both the said vessels, the
General
Winder and the
Pocahontas, afterwards arrived at St.
Thomas, and that at that island the said peculiar fitments shipped
as aforesaid in the
Pocahontas were there transshipped
from said vessel to the
General Winder, the said Hill
still being the master of the said last mentioned vessel. They also
further offered in evidence that the defendant, about six or seven
months after the sailing of the
General Winder from the
said port of Baltimore, declared in the presence of a competent
witness that the
General Winder had made him a good
voyage, having arrived with a cargo of slaves, the witness thought
he said 290, and that he also declared in the presence of the same
witness at another time that he, the defendant, was the sole owner
of the said vessel, called the
General Winder. They also
offered in evidence by another witness that the defendant had at
another time declared in the presence of this other witness that
the said witness, who was a creditor of the defendant, should be
paid one-half his debt on the arrival of the
General
Winder at Trinidad de Cuba. The United States, further to
support the said indictment, offered to give in evidence to the
jury by a certain Captain Peter L. Coit that he, Captain Coit, was
at St. Thomas while the
General Winder was at that island
as before stated, in September, 1824, and that he was frequently on
board the said vessel at that time at St. Thomas; that the said
Captain Hill the said master of the
General Winder then
and there proposed to the said witness, Captain Coit, to engage on
board the
General Winder as mate for the voyage
Page 25 U. S. 466
then in progress, and described the same to be a voyage to the
coast of Africa for slaves and thence back to Trinidad de Cuba.
That he offered to the said witness 70 dollars per month, and five
dollars per head for every prime slave which should be brought to
Cuba. That on the witness' inquiring who would see the crew paid in
the event of a disaster attending the voyage, Captain Hill replied,
"uncle John," meaning (as witness understood) John Gooding, the
defendant.
The defendant's counsel objected to the admissibility of this
evidence, and the judges divided in opinion upon its admissibility.
They also moved the Court for its opinion upon the following
points:
1. That on the charges contained in the lst, 2d, 3d, 5th and 6th
counts in the indictment, it is incumbent on the United States to
prove that the vessel, named or mentioned in the indictment was
fitted out, sent away, caused to sail, or caused to be sent away
with intent to transport negroes from the coast of Africa to the
Island of Cuba.
2. That evidence that the defendant caused the vessel in
question to be fitted out by Captain John Hill or anyone else will
not support the first count in the indictment, in which he is
charged with fitting her out himself.
3. That the first count charges a fitting out in the port of
Baltimore, which, according to the true legal interpretation of the
words in an indictment, means a complete equipment, and that
evidence of a partial preparation here and a further equipment at
St. Thomas will not support the charge contained in this count.
4. That the defendant cannot be convicted on the first count,
because no offense is legally charged in the said count, it being
necessary to specify the particular equipments in the indictment in
order that the defendant may have notice of the particular charge
against him.
5. That the defendant cannot be convicted upon the third and
fourth counts because these counts do not charge any offense to
have been committed by any principal to whom the defendant was or
could be aiding or abetting; also that he cannot be convicted upon
the fourth count unless he was actually or constructively present
when the negroes were
Page 25 U. S. 467
taken on board on the coast of Africa, and if the defendant was
in Baltimore at the time the said negroes were taken on board on
the coast of Africa, he could not aid or abet within the meaning of
the fourth section of the Act of Congress of 20 April, 1818, upon
which he was indicted.
6. That the defendant cannot be convicted on the second, fifth
and sixth counts in the indictment because no legal offense is
charged in either of these counts, the said counts not charging
that the
General Winder was built, fitted, equipped,
loaded, or otherwise prepared within the jurisdiction of the United
States, and that the said fifth and sixth counts are also defective
in charging the defendant with intent that the vessel should be
employed in the slave trade instead of charging him with intent to
employ her.
7. That the defendant cannot be convicted on the third, fourth,
fifth, and sixth counts unless there be a previous conviction of
the principal in the offense in the said counts mentioned.
The opinions of the judges being divided upon these points, and
also upon the question of allowing objections to the form and
sufficiency of the indictment to be discussed at the trial before
the jury, the questions were certified to this Court for final
determination.
MR. JUSTICE STORY delivered the opinion of the Court.
This is the case of an indictment against Gooding for being
engaged in the slave trade contrary to the prohibitions of the Act
of Congress of 20 April, 1818. It comes before us upon a
certificate of division of opinions in the Circuit Court of the
District of Maryland upon certain points raised at the trial. We
take this opportunity of expressing our anxiety lest, by too great
indulgence to the wishes of counsel, questions of this sort should
be frequently brought before this Court and thus in effect an
appeal in
Page 25 U. S. 468
criminal cases become an ordinary proceeding to the manifest
obstruction of public justice and against the plain intendment of
the acts of Congress. Cases of real doubt and difficulty or of
extensive consequence as to principle and application and
furnishing matter for very grave deliberation are those alone which
can be reasonably presumed to have been within the purview of the
legislature in allowing an appeal to this Court upon certificates
of division. In this very case, some of the questions certified may
have been argued and decided in the court below upon the motion to
quash the indictment, and there are others upon which it is
understood that the circuit court had no opportunity of passing a
deliberate judgment.
The first question that arises is upon the division of opinions
whether, under the circumstances of the case, the testimony of
Captain Coit to the facts stated in the record was admissible. That
testimony was to the following effect: that he, Captain Coit, was
at St. Thomas while the
General Winder was at that island
in September, 1824, and was frequently on board the vessel at that
time; that Captain Hill, the master of the vessel, then and there
proposed to the witness to engage on board the
General
Winder as mate for the voyage then in progress, and described
the same to be a voyage to the coast of Africa for slaves and
thence back to Trinidad de Cuba; that he offered to the witness
seventy dollars per month and five dollars per head for every prime
slave which should be brought to Cuba; that on the witness'
inquiring who would see the crew paid in the event of a disaster
attending the voyage, Captain Hill replied, "Uncle John," meaning
(as the witness understood) John Gooding, the defendant.
It is to be observed that as preliminary to the admission of
this testimony, evidence had been offered to prove that Gooding was
owner of the vessel, that he lived at Baltimore, where she was
fitted out, and that he appointed Hill master and gave him
authority to make the fitments for the voyage and paid the bills
therefor; that certain equipments were put on board peculiarly
adapted for the slave trade, and that Gooding had made declarations
that the vessel had been engaged in the slave trade and had made
him a good
Page 25 U. S. 469
voyage. The foundation of the authority of the master, the
nature of the fitments, and the object and accomplishment of the
voyage being thus laid, the testimony of Captain Coit was offered
as confirmatory of the proof, and properly admissible against the
defendant. It was objected to, and now stands upon the objection
before us. The argument is that the testimony is not admissible
because, in criminal cases, the declarations of the master of the
vessel are not evidence to charge the owner with an offense, and
that the doctrine of the binding effect of such declarations by
known agents is and ought to be confined to civil cases. We cannot
yield to the force of the argument. In general, the rules of
evidence in criminal and civil cases are the same. Whatever the
agent does within the scope of his authority binds his principal
and is deemed his act. It must indeed be shown that the agent has
the authority and that the act is within its scope, but these being
conceded or proved either by the course of business or by express
authorization, the same conclusion arises in point of law in both
cases. Nor is there any authority for confining the rule to civil
cases. On the contrary, it is the known and familiar principle of
criminal jurisprudence that he who commands or procures a crime to
be done, if it is done, is guilty of the crime and the act is his
act. This is so true that even the agent may be innocent, when the
procurer or principal may be convicted of guilt, as in the case of
infants or idiots employed to administer poison. The proof of the
command or procurement may be direct or indirect, positive or
circumstantial, but this is matter for the consideration of the
jury, and not of legal competency. So in cases of conspiracy and
riot, when once the conspiracy or combination is established, the
act of one conspirator in the prosecution of the enterprise is
considered the act of all and is evidence against all. Each is
deemed to consent to or command what is done by any other in
furtherance of the common object. Upon the facts of the present
case, the master was just as much a guilty principal as the owner,
and just as much within the purview of the act by the illegal
fitment.
The evidence here offered was not the mere declarations
Page 25 U. S. 470
of the master upon other occasions totally disconnected with the
objects of the voyage. These declarations were connected with acts
in furtherance of the objects of the voyage, and within the general
scope of his authority as conductor of the enterprise. He had an
implied authority to hire a crew, and do other acts necessary for
the voyage. The testimony went to establish, that he endeavored to
engage Captain Coit to go as mate for the voyage then in progress,
and his declarations were all made with reference to that object,
and as persuasive to the undertaking. They were therefore, in the
strictest sense, a part of the
res gestae, the necessary
explanations attending the attempt to hire. If he had hired a mate,
the terms of the hiring, though verbal, would have been part of the
act, and the nature of the voyage, as explained at the time, a
necessary ingredient. The act would have been so combined with the
declarations, as to be inseparable without injustice. The same
authority from the owner which allows the master to hire the crew
justifies him in making such declarations and explanations as are
proper to attain the object. Those declarations and explanations
are as much within the scope of the authority as the act of hiring
itself. Our opinion of the admissibility of this evidence proceeds
upon the ground that these were not the naked declarations of the
master, unaccompanied with his acts in that capacity, but
declarations coupled with proceedings for the objects of the
voyage, and while it was in progress. We give no opinion upon the
point whether mere declarations, under other circumstances, would
have been admissible. The principle which we maintain is stated
with great clearness by Mr. Starkie in his Treatise on Evidence, 2
Stark. Evid., part 4, p. 60. "Where," says he,
"the fact of agency has been proved, either expressly or
presumptively, the act of the agent, coextensive with the
authority, is the act of the principal, whose mere instrument he
is, and then, whatever the agent says within the scope of his
authority, the principal says, and evidence may be given of such
acts and declarations as if they had been actually done and made by
the principal himself.
* "
Page 25 U. S. 471
The other questions arise from the instructions or opinions
prayed for by the defendant at the trial upon matters of law, upon
which also the judges were divided in opinion.
The first instruction prayed puts the point whether the burden
of proof of the offenses charged in the indictment did not rest
upon the United States. Without question it does in all cases where
a party stands charged with an offense, unless a different
provision is made by some statute, for the general rule of our
jurisprudence is that the party accused needs not establish his
innocence, but it is for the government itself to prove his guilt
before it is entitled to a verdict or conviction. This question has
been abandoned at the argument here, and is too plain for
controversy, since there is no statutable provision altering the
general principle in this particular.
The second instruction is conceived in very general terms -- so
general, indeed, that it cannot be supported if it is to be
understood in its obvious sense. It asks the court to instruct the
jury that evidence that the defendant caused the vessel to be
fitted out by Captain Hill or anyone else, will not support the
first count in the indictment, in which the defendant is charged
with fitting her out himself. This obviously covers the case where
the fitting out is by the instrumentality of any other persons,
however innocent of his design, even though the defendant himself
should be personally present, either really or constructively, and
superintending the whole operations. To this extent it is clearly
unmaintainable. But in a more restrictive sense it involves the
question whether evidence that the owner commanded, authorized, and
superintended the fitment through his agents, without his personal
presence, would support this count. We are of opinion in the
affirmative. The act of Congress does not require that the fitting
out should be by the owner personally, without the assistance or
agency of others. The act itself is of a nature which forbids such
a supposition. The fitment of a vessel is ordinarily, and indeed
must be done through the instrumentality of others. It is not a
single act, but a series of subordinate operations requiring the
cooperation of persons in various trades and arts, all conducing to
the same end. It would be against the plain sense of the
Page 25 U. S. 472
legislature, to interpret its language to mean that the act
which it punishes, and which must or may be done by many in the
ordinary course of business, shall only be punishable when the
extraordinary fact occurs of its being done by one person. If done
by others under the command and direction of the owner, with his
approbation and for his benefit, it is just as much in
contemplation of law his own act as if done by himself. To this
extent, at least, the maxim may be safely applied
qui facit per
alium, facit per se. And it cannot be material whether it be
done in his absence from, or his presence in, the scene. Especially
there can be no doubt that the principle ought to be applied with
increased force, where the owner resides at the same port or
neighborhood and superintends the course of the operations, even if
he does not see them. Even in the highest crimes, those who are
present, aiding and commanding or abetting are deemed principals,
and if absent, in treason and in misdemeanors, they are still
deemed principals; though it may be necessary in treason to lay the
overt acts precisely according to the fact, from considerations
peculiar to that offense. This instruction ought therefore to have
been refused.
The third instruction turns upon the point, whether the fitting
out, in the sense of the act of Congress, means a complete
equipment, so that a partial equipment only will extract the case
from the prohibitions of the statute. This objection appears to us
to proceed from a mistaken view of the facts applicable to the
case. If the vessel actually sailed on her voyage from Baltimore
for the purpose of employment in the slave trade, her fitment was
complete for all the purposes of the act. It is by no means
necessary, that every equipment for a slave voyage should have been
taken on board at Baltimore, or indeed that any equipments
exclusively applicable to such a voyage should have been on board.
The presence of such equipments may furnish strong presumptive
proof of the object of the voyage, but they do not constitute the
offense. The statute punishes the fitting out of a vessel with
intent to employ her in the slave trade, however innocent the
equipment may be, when designed for a lawful voyage. It is the act
combined with the intent, and not either separately, which is
punishable. Whether the
Page 25 U. S. 473
fitting out be fully adequate for the purposes of a slave voyage
may, as matter of presumption, be more or less conclusive; but if
the intent of the fitment be to carry on a slave voyage, and the
vessel departs on the voyage, her fitting out is complete so far as
the parties deem it necessary for their object, and the statute
reaches the case.
But we are also of opinion that any preparations for a slave
voyage which clearly manifest or accompany the illegal intent, even
though incomplete and imperfect and before the departure of the
vessel from port, do yet constitute a fitting out within the
purview of the statute. This was held by this Court upon full
consideration in the cases of
The Emily and
Caroline, 9 Wheat. 381, and
The
Plattsburg, 10 Wheat. 133. Those cases, indeed,
arose upon the construction of the slave trade acts of 1794, 1800
and 1807, but the language of those acts is almost literally
transcribed into the statute of 1818, and the construction adopted
therein must govern the present case. In either view, therefore,
our answer to the third prayer is that a complete equipment is not
necessary to be proved, but any partial preparation, which
demonstrates or accompanies the illegal intent, will bring the case
within the statute, and support the charge in the first count of
the indictment.
The fourth instruction respects the sufficiency of the averments
of the first count, and it is contended that there ought to have
been a specification of the particulars of the fitting out, and
that it is not sufficient to allege the act itself without them.
The indictment in this respect follows the language of the statute,
and is as certain as that is. We cannot perceive any good reason
for holding the government to any greater certainty in the
averments of the indictment. The fitting out of a vessel may and
must consist of a variety of minute acts and preparations, almost
infinite in their detail, and the enumeration would answer no
valuable purpose to the defendant to assist him in his defense, and
subserve no public policy. The fitting out of a vessel is a sort of
business, which is as clear and definite as any other, and we might
just as well in an indictment upon the act for building a ship with
the illegal intent, require that the government
Page 25 U. S. 474
should particularize the acts of building through their whole
details, as those of equipment. The building of a ship is not an
act more certain in its nature than the fitting out of a ship. The
particular preparations are matters of evidence, and not of
averment. Every man may well be presumed to know what are the
fitments of a vessel for a voyage, without more particularity. The
objection proceeds upon the supposition that ordinary equipments
only, though combined with the illegal intent, are not within the
act, and that extraordinary equipments only for such a voyage are
provided for. This has been already shown to be an incorrect
exposition of the statute. It imputes no guilt to any particulars
of the equipment, but to the act combined with the illegal
intent.
In general it may be said that it is sufficient certainty in an
indictment to allege the offense in the very terms of the statute.
We say, in general, for there are doubtless cases where more
particularity is required, either from the obvious intention of the
legislature, or from the application of known principles of law. At
the common law, in certain descriptions of offenses, and especially
of capital offenses, great nicety and particularity are often
necessary. The rules which regulate this branch of pleading were
sometimes founded in considerations which no longer exist either in
our own or in English jurisprudence; but a rule, being once
established, it still prevails, although if the case were new, it
might not now be incorporated into the law. So, again, in certain
classes of statutes, the rule of very strict certainty has
sometimes been applied where the common law furnished a close and
appropriate analogy. Such are the cases of indictments for false
pretenses, and sending threatening letters, where the pretenses and
the letters are required to be set forth from the close analogy to
indictments for perjury and forgery. Courts of law have thought
such certainty not unreasonable or inconvenient, and calculated to
put the plea of
autre fois acquit or
convict, as
well as of general defense at the trial, fairly within the power of
the prisoner. But these instances are by no means considered as
leading to the establishment of any general rule. On the contrary,
the course has been to leave every class of cases to be decided
Page 25 U. S. 475
very much upon its own peculiar circumstances. Thus, in cases of
conspiracy, it has never been held necessary to set forth the overt
acts or means, though these might materially assist the prisoner's
defense. So, in cases of solicitation to commit crimes, it has been
held sufficient to state the act of solicitation, without any
averment of the special means. And in endeavors to commit a revolt,
which is by statute in England made a capital offense, it has
always been deemed sufficient to allege the offense in the words of
the statute, without setting forth any particulars of the manner or
the means. These cases approach very near to the present, and if
any, by way of precedent, ought to govern it, they well may govern
it. The case of treason stands upon a peculiar ground; there, the
overt acts must, by statute, be specially laid in the indictment,
and must be proved as laid. The very act and mode of the act must
therefore be laid as it is intended to be proved. If the party be
only constructively a principal, as an absent and distant coadjutor
or leader, it may be necessary to aver the fact accordingly. There
is great good sense in the rule which has been laid down that where
the offense is made up of a number of minute acts, which cannot be
enumerated upon the record without great prolixity and
inconvenience, and the danger of variance, they ought to be
dispensed with. The present case is a fit illustration of the rule;
the fitting out is a compound of various minute acts, almost
incapable of exact specification.
The fifth instruction turns upon a doctrine applicable to
principal and accessory in cases of felony, either at the common
law or by statute. The present is the case of a misdemeanor, and
the doctrine therefore cannot be applied to it, for in cases of
misdemeanors, all those who are concerned in aiding and abetting,
as well as in perpetrating the act are principals. Under such
circumstances, there is no room for the question of actual or
constructive presence or absence, for whether present or absent,
all are principals. They may be indicted and punished accordingly.
Nor is the trial or conviction of an actor indispensable to furnish
a right to try the person who aids or abets the act; each in the
eye of the law is deemed guilty a principal. In the
Page 25 U. S. 476
present indictment, the offense is in the third and fourth
counts laid by aiding and abetting, in the very terms of the act of
Congress. If the crime, therefore, could be supposed to be of an
accessorial nature, it is truly alleged, according to the fact, and
not merely according to the intendment of law. We do not consider
that the terms "aid" and "abet," used in this statute, are used as
technical phrases belonging to the common law, because the offense
is not made a felony, and therefore the words require no such
interpretation. The statute punishes them as substantive offenses,
and not as accessorial, and the words are therefore to be
understood as in the common parlance, and import assistance,
cooperation, and encouragement. These remarks furnish an answer to
the seventh instruction, which must share the fate of the
fifth.
The sixth instruction is that which has presented the most
difficulty. It embraces two propositions; the first is that the
second, fifth, and sixth counts in the indictment, ought to have
contained an averment that the vessel was built, fitted out,
&c., within the jurisdiction of the United States; the second
is that the fifth and sixth counts do not allege the offense in the
words of the statute, those words being, "with intent to employ the
vessel" in the slave trade, &c., whereas each of these counts
avers, "with intent that the said vessel should be employed" in the
slave trade, which imports a very different state of facts. In
order to understand these exceptions it is necessary to attend
carefully to the very words of the act of Congress. The second
section enacts
"That no citizen or citizens . . . shall, after the passing of
this act as aforesaid, for himself, themselves, or any other person
or persons whatsoever, either as master, factor, or owner, build,
fit, equip, load, or otherwise prepare any ship or vessel in any
port or place within the jurisdiction of the United States, nor
cause any such ship or vessel to sail from any port or place
whatsoever within the jurisdiction of the same for the purpose of
procuring any negroes . . . to be transported . . . as slaves."
The third section enacts
"That every person or persons so building, fitting out,
equipping, loading, or otherwise preparing or sending away or
causing any of the acts aforesaid to be done with intent to
employ
Page 25 U. S. 477
such ship or vessel in such trade or business after the passing
of this act, contrary to the true intent and meaning thereof, or
who shall in any wise be aiding or abetting therein, shall
severally, on conviction thereof by due course of law, forfeit. . .
."
The first point turns upon the interpretation of the words "such
ship or vessel" in each of these sections. To what do they refer?
The only ship or vessel spoken of in either section is such as have
been built, fitted out, &c., in some port or place of the
United States. "Such ship or vessel" must therefore refer to a ship
or vessel so built, fitted out, &c., as its antecedent, or the
relative "such" can have no meaning at all. The word is sensible in
the place where it occurs, and it is the duty of the court, when it
can, to give effect to every word in every enactment if it can be
done without violating the obvious intention of the legislature.
This is a penal act, and is to be construed strictly -- that is,
with no intendment or extension beyond the import of the words
used. There is no certainty that the legislature meant to prohibit
the sailing of any vessel on a slave voyage which had not been
built, fitted out, &c., within the jurisdiction of the United
States. If a foreign vessel, designed for the slave trade and fully
fitted out for that purpose were, by accident or design, to anchor
in our ports, it would not be reasonable to suppose that the
legislature could have intended the sailing of such a vessel from
our ports to be an offense within the purview of our laws. Yet if
the construction contended for on behalf of the United States be
adopted, that would be the result.
But it is sufficient to say that the word "such" has an
appropriate sense, and can be reasonably referred only to the ship
or vessel previously spoken of, and such ship or vessel is not
merely one built, fitted out, &c., but one built, fitted out,
&c., in a port or place within the United States. The whole
description must be taken together. If we were to adopt any other
construction, we should read the words as if "such" were struck
out, and the clause stood, "any ship or vessel." Such a course
would not be defensible in construing a penal statute. It is
remarkable that in the Slave Trade acts of 1794, 2 U.S.L. 333, and
of 1807, 4 U.S.L.
Page 25 U. S. 478
94, the word "such" is omitted, and seems to have been
introduced into the act of 1818,
ex industria. We must
take the law as we find it, and, upon examination of its language,
we are of opinion that this exception is well taken. The cases of
United States v. Lacoste, 2 Mason 129, and
United
States v. Smith, 2 Mason 143, have been cited at the bar as
containing a different opinion expressed in the circuit court in
Massachusetts. I owe it in candor to acknowledge, that the fact is
so, but I have no recollection that the point was made at the
argument, and I am confident that it never was insisted upon in the
view which has been presented by the argument in this Court. My own
error, however, can furnish no ground for its being adopted by this
Court, in whose name I speak on the present occasion.
The other point is equally fatal. There is a clear distinction
between causing a vessel to sail or to be sent away with intent to
employ her in the slave trade, and with intent that she should be
employed in that trade. The former applies to an intent of the
party causing the act, the latter to the employment of the vessel,
whether by himself or a stranger. The evidence may fully support
these counts, and yet may not constitute an offense within the act
of Congress, for the employment by a mere stranger would not
justify the conviction of the party charged with causing her to
sail or to be sent away with intent to employ her in the slave
trade as owner. There is no reason in criminal cases why the court
should help any such defective allegations. The words of the
statute should be pursued.
It remains only to consider the point whether these objections
to the sufficiency of the indictment could be properly taken at
this stage of the proceedings. Undoubtedly, according to the
regular course of practice, objections to the form and sufficiency
of an indictment ought to be discussed upon a motion to quash the
indictment, which may be granted or refused in the discretion of
the court, or upon demurrer to the indictment, or upon a motion in
arrest of judgment, which are matters of right. The defendant has
no right to insist that such objections should be discussed or
decided during the trial of the facts by the jury. It would
Page 25 U. S. 479
be very inconvenient and embarrassing to allow a discussion of
such topics during the progress of the cause before the jury, and
introduce much confusion into the administration of public justice.
But we think it is not wholly incompetent for the court to
entertain such questions during the trial, in the exercise of a
sound discretion. It should, however, be rarely done, and only
under circumstances of an extraordinary nature. The circuit court
in the present case did allow the introduction and discussion of
these questions during the trial, and were divided upon the
propriety of the practice. We can only certify that the court
possessed the authority, but that it ought not to be exercised
except on very urgent occasions.
A certificate will be sent to the Circuit Court of the district
of Maryland, according to this opinion.
CERTIFICATE. This cause came on, &c., on consideration
whereof, it is ORDERED and ADJUDGED that the following opinions be
certified as the opinions of this Court on points of division to
the circuit court aforesaid.
First. That the testimony of Peter L. Coit, set forth in the
record, was, under the circumstances of the case, admissible as
competent evidence against the defendant Gooding.
Secondly. That the opinions prayed for by the counsel for the
defendant Gooding, in the first and sixth prayers, set forth in the
record, were correct in law and ought to have been given by the
court.
Thirdly. That the opinions prayed for in all the other prayers
of the defendant were incorrect in law, and ought to have been
refused.
Fourthly. That the objections taken to the form and sufficiency
of the indictment by the defendant's counsel, were not matters of
right which the defendant might insist upon, and discuss, and
require to be decided during the trial of the issue by the jury,
and that the same should, according to the regular course of
practice, have been discussed on a motion to quash the indictment,
or on demurrer, or on motion in arrest of judgment, but that the
court had nevertheless
Page 25 U. S. 480
competent authority, in the exercise of a sound discretion, to
permit such objections to be discussed and decided during the
trial.
* See also 2 Stark. Evid. part 4, pp. 403-404.
