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The Edward.–SCOTT

March 15, 1816

THE EDWARD.–SCOTT, CLAIMANT.


APPEAL from the circuit court for the district of Massachusetts. The offense charged in the information filed, in this case, in the district court of Massachusetts, is, that the ship Edward, on the 12th day of February, 1810, departed from the port of Savannah with a cargo, bound to a foreign port with which commercial intercourse was not permitted, without a clearance, and without giving a bond in conformity with the provisions of the act of congress of the 28th of June, 1809. A claim was interposed by George Scott, of Savannah, in which he alleged, that the ship did not depart from Savannah, bound to a foreign port, in manner and form as stated in the information. The district court condemned the ship; from which sentence an appeal was taken to the circuit court, where the district attorney was permitted by the court to amend the information, by filing a new allegation, that Liverpool, in Great Britain, was the foreign port to which the ship was bound when she departed from Savannah, and that she did so depart without having a clearance, agreeably to law. The circuit court affirmed the sentence, and the cause was brought before this court upon an appeal.

The opinion of the court was delivered by: Washington, J., delivered the opinion of the court, and, after stating the facts, proceeded as follows:

Harper, for the appellants and claimant. 1. The object of the 3d section of the act of the 2d of June, 1809, was to prevent the going to prohibited ports. When this supposed offence was committed, there were no prohibited ports, and the legislature could never mean to attach the penalty to ports permitted temporarily. If Liverpool was not, at the time, a prohibited port, and there were no other prohibited ports, the vessel was not obliged to give bond. Before the voyage was undertaken, it had become impossible to commit the offence with which the vessel is charged. 2. The information charges the vessel with going to a forbidden port without a clearance. But Liverpool was not a forbidden port, and, therefore, the information cannot stand. 3. The allegation was, that the vessel proceeded from Savannah; but the proof was, that the voyage was undertaken from Charleston. The prosecutor could not lawfully prove a proceeding from any other port than that alleged in the information.

The Attorney-General and Law, for the respondents, argued, 1. That the laws, under which the supposed offense was committed, were in force at the time. [But as the argument is fully stated in the opinions of the judges, it is omitted here.] 2. Common law strictness is not required in these proceedings, and it is unreasonable to insist on the particular foreign port being named. The prosecutor had a right to prove a voyage from Charleston. It has been decided in this court, that it is sufficient if the offence be laid in the words of the act. Even the rules of the common law applicable to indictments do not require time and place to be proved as stated; and the only case where a variance is fatal is, where it affects the jurisdiction of the court, as where criminal proceedings are required to be local.*fn1 a In no case, in civil proceedings, does the common law consider the venue as matter of substance, except where both the proceedings are in rem, and the effect of the judgment could not be obtained if the offence were laid in a wrong place.*fn2 b The circuit court had a

March 15th.

Three questions have been made and discussed by the counsel, 1st. Whether the circuit court could, upon the appeal, allow the introduction of a new allegation into the information by way of amendment? 2d. Whether the omission to give the bond required by the 3d section of the act of the 28th of June, 1809, subjected the vessel to forfeiture? and if it did, then, 3d. Whether the information, which alleges the voyage to Liverpool to have commenced at Savannah, is supported by the evidence in the cause, and whether the sentence below ought not to be reversed for this reason, although the court should be satisfied that the ship departed from Charleston for Liverpool without giving the bond required?

Upon the first question it is contended, for the claimant, that the circuit court has only appellate jurisdiction in cases of this nature, and that to allow the introduction of a new allegation, would be, in fact, to originate the cause in the circuit court. This question appears to be fully decided by the cases of the Caroline and Emily, determined in this court. These were informations in rum, under the slave trade act, and the opinion of this court was, that the evidence was sufficient to show a breach of the law; but that the informations were not sufficiently certain to authorize a decree. The sentence of the circuit court was, therefore, reversed, and the cause remanded to that court, with directions to allow the informations to be amended. But even if an amendment would be improper if it stated a different case from that which was presented to the district court, the objection would not apply to this case, in which the offence, though more definitely laid in the second allegation than it was in the first, is yet substantially the same. In both of them the charge is, departing from Savannah to a foreign interdicted port without giving bond, and the amendment, in substance, merely states the particular foreign port to which the vessel was destined.

The next question is, whether the omission to give the bond required by the third section of the act of the 28th of June, 1809, subjected the vessel to forfeiture? It is contended, by the claimant's counsel, that after the end of the session of congress in which this law passed, there were no foreign ports either permitted or interdicted by law, inasmuch as the embargo laws which prohibited exportations from the United States to foreign countries, would then stand repealed, by force of the 19th section of the act of the 1st of March, 1809, to interdict the commercial intercourse with Great Britain and France, and the 2d section of the above act of the 28th of June. That all the ports of the world being thus permitted to the commerce of the United States, no subject would remain on which the 3d section would operate; and, consequently, there could be no necessity for giving a bond not to go to an interdicted port.

An attentive consideration, however, of the two acts above mentioned, will show that the argument is not well founded. The 3d section of the act of the 28th of June, 1809, declares, that during the continuance of that act, no vessel, not within the exceptions therein stated, shall be permitted to depart for a foreign port with which commercial intercourse has not been, or may not be, permitted by virtue of this act, or the act of the 1st of March, 1809. And if bound to a foreign port with which commercial intercourse has been, or may be, permitted, still she shall not be allowed to depart without bond being given, with condition not to proceed to any port with which commercial intercourse is not thus permitted, nor be directly or indirectly engaged, during the voyage, in any trade with such port. This law was in full force at the time the offence charged in this information is alleged to have been committed.

If, then, there was any country with which commercial intercourse was interdicted, and would continue to be so after the end of the session, during which this law was passed, it seems to be admitted in the argument, that a vessel destined to a foreign permitted port would be liable to forfeiture, unless the above bond had been given. To ascertain whether there was any such country, it will be necessary to inquire what is the true meaning of the term commercial intercourse? No higher or more satisfactory authority upon this subject need be resorted to than the legislature itself, by which this act was passed.

The act of the 1st of March, 1809, which is entitled, 'An act to interdict the commercial intercourse between the United States and Great Britain,' &c., contains nineteen sections. The first ten (exclusive of the first, which denies to the vessels of those countries the privilege of entering the ports and harbours of the United States) forbid the importation into the United States of the products and manufactures of Great Britain and France, or of any other part of the world, if brought from the ports of either of those countries. The 12th section repeals, after the 15th of March, 1809, all the embargo laws, except as they relate to Great Britain and France; and the 19th section repeals them, after the end of the succeeding session of congress, as to all the world. The 13th, 14th, 15th, 16th, and 18th sections are intended to provide securities for enforcing the non-importation system established by this law; and the 17th section repeals the former non-importation law of April, 1806.

Hence, it appears, that the commercial intercourse which this law was intended to interdict, consisted of importations from Great Britain and France, and of the products and manufactures of those countries, and of exportations to them. In the 11th section it is called the trade of the United States, suspended by that act and the embargo laws, which trade the president is authorized to renew, by his proclamation, upon a certain contingency, and in pursuance of this power, he did, accordingly, renew it with Great Britain in April, 1809.

Thus stood the commercial intercourse of the United States with foreign nations, at the commencement of the extraordinary session of congress, which commenced in May, 1809; permitted by the above law, both as to exportations and importations with all the world, except Great Britain and France, and their dependencies; and, as to them, interdicted in both respects as to France, and permitted with Great Britain, by virtue of the president's proclamation. But, as the law of the lst of March would expire, by its own limitation, after the end of the May session, whereby, not only exportations, but the importations forbidden by that act, in relation to France, would become lawful; the lst section of the act, of the 28th of June, 1809, revives the whole non-importation system, except so far as it had been permitted to Great Britian by the proclamation; and the 2d section declares, in effect, that the embargo laws, which were repealed by the 12th and 19th sections of the act of the lst of March, shall be and remain repealed, notwithstanding the expiration of that law by its own limitation.

From this view of the subject, it appears, that the non-importation system of the lst of March was to continue in force until the end of the session of congress, which would succeed that of May, 1809, except as to Great Britain; and that, after the end of that session, the embargo laws would cease to operate against any nation.

If, then, importation be a branch of commercial intercourse, in the avowed meaning of congress, and if, on the 28th of June, and from thence until the end of the next session of congress, it was to continue in force, as to France, (unless the president should declare, by proclamation, the revocation of her offensive edicts,) but were inoperative as to Great Britain, it follows, inevitably, that, in February or March, 1810, when the offence is charged to have been committed by this vessel, there were foreign ports permitted, and others interdicted, to the commerce of the United States; and, consequently, that the destination of ...


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