« 이전계속 »
case of this vessel and her cargo, must be af- claimants of the slaves on board of the Constifirmed.
tution is different. That vessel, with her car. The same decision would, of course, be made go, was seized in the bay of Pensacola by a in the cases of The Merino and The Louixa, and military officer, and was conducted by his their cargoes,
it were not for the circum- agent to Mobile, for the purpose of being listance that the second count in the informations beled for his use. The 1st section of this act, against those vessels alleges that the citizens of which declares the forfeiture of any vessel bethe United States, who took the slaves on longing to a citizen of the United States, emboard at the Havana, did so for the purpose of ployed in transporting slaves from one foreign holding them as slaves, which allegation is not country to another, *contains a provis- [*408 proved by the evidence in those cases. They ion, that the said vessel may be libeled and 406*] were taken on board *merely as pas- condemned for the use of the person who shall sengers, to be delivered at Pensacola to their sue for the same. The right to seize the vessel, owners, or to those to whom they were con- and slaves on board, would seem to be a necessigned. The sentences in these two cases must sary consequence of the right to enforce the therefore be reversed, and the causes remitted forfeiture. The possession of the vessel, then, to the District Court, with directions to permit being lawfully vested in Col. Brooke, at the the libelants to amend, it being obvious to this time she was boarded by the revenue boat, off court, from the evidence, that the negroes Mobile Point, it could not, with any propriety, taken on board of those vessels were trans- be asserted that she was employed in carrying ported for the purpose of their being held to on trade, contrary to law, ai the time she was service.
so boarded. Her employment in such trade The three remaining cases present the claims was completely terminated by the first seizure, of the asserted owners of the slaves transported and she was on her way for adjudication when in the above vessels, from Havana to Pensaco the second seizure was made. If, under these la, which were brought before the court below, circumstances, a capture of the vessel could in the form of libels for restitution. To these not be legally made by the revenue boat, then libels no claims were filed, and the sentence of the claims of the owners of the slaves on the court in each of the cases was, “ that the board is not precluded by the 4th section of slaves remain subject to the laws of Alabama:" the act of 1800; the sentence above quoted apfrom which decision appeals were taken; and plying only to persons interested in the voyage as they amount, substantially, to a dismission in which the vessel was employed at the time of the libels, it becomes necessary to examine of such capture. their correctness. The ownership of the slaves, as The court is therefore of opinion, that in claimed by the respective libelants, appears to the case of Antonio de Frias and David Nagle the court to be sufficiently established. It is against eighty-four African slaves, the sentence in proof, that slavery was, and is, permitted to of the court below is erroneous, and ought to exist in the Island of Cuba, either by particu- be reversed, and that a decree of restitution Jar ordinances of the Spanish government, or ought to be made. by custom; that the slaves in question were Sentence in the case of The Constitution af. imported into that island from Africa by Anfirmed. Sentences in the case of The Louisa tonio de Frias, and were shipped at Haavana and Merino reversed, with leave to amend. for Pensacola by these libelants, as their prop. Sentence reversed as to the claim of Frias and erty, under a passport regularly granted by the Nagle, and restitution decreed. Governor-General of Cuba; the slaves claimed by the libelants, other than Frias, having been Cited-20 Wall. 111; Blatchf. Pr. 505; 2 Sumn. 245; purchased from him by those libelants. It 3 Wood. & M. 348;' 1 Cliff. 535; 4 Blatchf. 103;
Blatchf. & H. 15. 407*] would *seem unreasonable to require other or better proof of ownership, in property of this description, than these facts furnish.
SLAVE TRADE 1*409 The only question, then, is, whether these [*INSTANCE COURT. persons are prevented from claiming restitution
LIEN OF MATERIAL MEN.] of these slaves by any law of the United States.
THE ST. JAGO DE CUBA. The only act which bears upon this subject, is that of the 10th of May, 1800, the 4th section
VINENTE ET AL., Claimants. of which, after declaring that it should be lawful for any of the commissioned vessels of the condemnation pronounced.
A question of fact, under the slave trade acts. United States to seize any vessel employed in The claim of seamen, for wages, on a voyage, carrying on trade, business or traflic, contrary undertaken in violation of the slave trade acts out to the intent and meaning of that act, or the of the proceeds of the forfeited vessel in the regis
try, rejected. act of 1794, enacts, that “all persons interested The claims of seamen, for wages, and of material in such vessel, or in the enterprise or voyage in men, for supplies, where the parties were innocent which such vessel shall be employed, at the own knowledge of. or participation in the illegal
voyage, preferred to the claim of forfeiture on the time of such capture, shall be precluded from part of the government. all right or claim to the slaves found on board Material men have a lien, which may be enforced such vessel, and from all damages or retribu- by a proceeding in the admiralty, in rem, for
necessaries or supplies, furnished in a port to tion on account thereof." There can be no which the vessel dues not belong. question but that this section is strictly applicaBlerim hercda imunts of the slawes oma bimardhebe APPEAL from the Circuit Court of Maryseized whilst employed in carrying on trade This cause was argued by the Attorney-Genforbidden by the act of 1800, by a commissioned eral for the appellants, and by Mr. Winder for vessel of the United States. The case of the the respondents and claimants.
Mr. Justice JOHNSON delivered the opinion | her, in ballast, to St. Jago de Cuba, under the of the court:
care of Strike, a personage who, from that This vessel, with her lading, found on board | time, makes a conspicuous figure in the res at the time of seizure, were libeled for an in- gesta. For no sooner does she arrive at St. fraction of the laws prohibiting the African Jago, than she is colorably conveyed to Vinente, slave trade.
but still under the absolute control of Strike; The causes of forfeiture alleged in the libels and without having *shipped an article, [*412 comprise all those contained in the 1st section appears at once with a valuable cargo on board, of the act of 1794, and those of the 2d section the property also of Strike, furnished with a of the act of 1818, with the exception of the Spanish coasting license, on a voyage to ofiense of being laden for the prohibited trade. Havana, thence to Matanzas, where a part of 410* *The claims filed to this libel were, her cargo is sold, and she is completely equip
1. That of one Vinente, a Spanish subject, ped, colorably a Spaniard, but really an Ameriwho alleges her to be a regularly documented can, for the African trade. Spanish vessel, engaged in traffic sanctioned by On her voyage thence to the coast of Africa, the laws of Spain. This claim goes both to she is pursued by hostile vessels, and in the vessel and cargo.
chase sustains damage, which compels her to 2. Of certain seamen, who demand compen put into Baltimore to refit. There she encountsation for their wages from the proceeds of the ers Gunn, her original and equitable owner, vessel.
but who finds in her nothing of her original 3. And, lastly, of several material men, who character, but what served to identify his vesclaim the payment of their bills, alleging the sel, and expose to him how his confidence had vessel to be foreign, and their being employed been abused, and his property forfeited, in her equipment and repairs by the captain, through his own indiscretion, in conveying her and one Strike, as his agent.
to Maher. In the present cause, his interests The court below condemned the vessel, but are out of the question, and he appears only as restored the cargo, and from that decree the a witness, on behalf of the prosecution. Spanish claimant has not appealed. The fate It is immaterial to inquire whether this vesof the vessel, therefore, is irrevocably fixed; sel was in the inception of her voyage," laden' but the United States having appealed from the for the illegal purpose for which she was decree of restitution in favor of the cargo, that caused to sail. The court below has attached appeal gives rise to a complicated inquiry. much importance to the omission of this allega
The court below repelled every other charge tion; and, certainly, as a substantive offense, against the vessel, except that of having been the vessel could not have been condemned for
caused to sail," with a view to be employed that cause, unless comprised among the allegain the prohibited traffic. But “ being caused tions in the libel. to sail” is not among the offenses enumerated But as to the liability of the lading, found on in the latter part of the 2d section of the act of board at the time of the seizure, to forfeiture 1818, under which alone the lading of the ves- under the act, that consequence is made to desel is subjected to forfeiture. That offense is pend upon the liability of the vessel herself to among those enumerated in the enacting clause condemnation; and, although this court is not of the section, but in the forfeiting clause it is *prepared to carry that forfeiture be. [*413 dropped; and if, therefore, the case of this ves- yond the limits of an intimate connection with sel exhibits no other offense than that which the prohibited voyage, they are of opinion 411*] in the decree below was made the that, in this case, that connection is so intimate ground of her condemnation, the decree restor- as to leave no doubt of its liability, to the full ing the cargo would be well sustained; hence extent of the liability of the vessel. If, then, it becomes necessary to review the whole case. the evidence will sustain any one of the offenses
One John Gunn, it appears, built and alleged in the libel, which offense is made a equipped this vessel in the port of Norfolk, as ground of forfeiture by law, the cargo must a packet, intending her for sale; but falling in share the fate of the vessel. debt, it became necessary to raise a sum of One of those allegations is, that she was fitted money upon her hull, and he accordingly took out; and, contrary to the opinion of the court her to Baltimore for that purpose.
When below, we think the evidence establishes that there, he addressed himself to one Maher, who she was fitted out for the prohibited trade. advanced him the money, and instead of an This conclusion we place on the ground ashypothecation in ordinary form. Gunn executed sumed in the cases of The Emily and Caroline, a bill of sale to Maher. admitted, on all hands, decided at the present term. The general purto have been intended to serve only as the poses of the enterprise, in its inception, are means of enabling Maher to expedite the vessel affirmed by the ground on which the court beon a voyage to Cuba, there to be sold, and to low founded its sentence against the vessel, and account with Gunn for the proceeds, as well of are fully made out by her subsequent conduct. freight as of sale.
This point being established, it follows that This purposc Maher appears soon to have acts, which otherwise would be indifferent, and abandoned, for an enterprise of a very different might be intended as well for an innocent as a nature. The vessel was put up for freight, and prohibited enterprise, become offenses with a various applications ensued; but Maher under- view to their purpose. Besides these, the utter took himself to load her for St. Jago de Cuba, improbability that this voyage could have been and Gunn left Baltimore under the persuasion undertaken from Baltimore to St. Jago, withthat her destination was fixed. Some time, out many acts wbich would amount to a fitting however, having elapsed, and not hearing of out, we have the positive words of Maher himher sailing, he writes to Maher on the subject, self, the dux facti in the transaction, in his letand is then informed that he had dispatched l ter of the 28th of October, to Gunn, in which, when speaking of having dispatched the and places them on the footing of subsequent 414*] *vessel to St. Jago, he says: “ Mr. purchasers, whether with or without notice of Strike has an account of all her expenses in the forfeiture. fitting out."
These questiors are all solved by a reference This charge, therefore, we consider as estab to the nature, origin, and objects of maritime lished against her; and this is one of the contracts. The precedence of forfeiture bas enumerated offenses which subject vessel and never been carried further than to overreach lading to forfeiture.
common law contracts entered into by the own. The court below having subjected the vessel er; and it would be unreasonable to extend to forfeiture, and the proceeds being in the them further. The whole object of giving adregistry, was then called on to distribute those miralty process and priority of payment to proceeds among the various claimants, the sea- privileged creditors, is to furnish wings and men and material men. Among the former, it legs to the forfeited hull, to get back for the dismissed all except that of Pietro Rosso. benefit of all concerned; that is, to complete From the decree, as to those whose claims are her voyage. dismissed, there is no appeal, and the Court is There are two considerations that fully illusnot called on to pass an opinion upon the trate this position. It is not in the power of grounds of the decision as relates to their anyone but the ship-master, not the owner claims. But the decree in favor of Pietro Rosso himself, to give these implied liens on the ves. is appealed from by the United States, and it sel; and, in every case, the last lien given will becomes necessary to examine that part of the supersede the preceding. The last bottomry decree which awards him both his account, and bond will ride over all that precede it; and an precedence in payment of it.
abandonment to a salvor will supersede every We think it erroneous, and that it must be prior claim. reversed, since it is impossible to believe that he The vessel must get on; this is the consideraentered this vessel without a perfect knowledge tion that controls every other; and not only the of her character and destination. Spanish vessel, but even the cargo, is sub modo submasters, in common with all others, may com- jected to this necessity. mit infractions of the act of 1818, within the for these purposes, the law maritime attaches ports of the United States; and it is easy to the power of pledging or subjecting the vessel conceive, that engaging a crew, as well as to material men, to the office of ship-master; many other acts of preparation for this trade, and considers the owner as vesting him with may be committed by a vessel coming lawfully those powers, by the mere act of constituting into the ports of this country. If the plea of him ship-master. The necessities of commerce stress of weather, and other incidental em require. *that when remote from his [*417 barrassments, be set up, as taking a vessel' owner, he should be able to subject his own415*] *out of the action of the laws against er's property to that liability, without which, the slave trade, it is incumbent on the party it is reasonable to suppose, he will not be able who claims benefit of the excuse, to establish it. to pursue his owner's interests. But when the In the present instance, this seaman was en-owner is present, the reason ceases, and the gaged in the port of Baltimore, and so far was contract is inferred to be with the owner him. the vessel from a want of seamen, that we find self, on his ordinary responsibility, without a the master actually refusing recruits, when view to the vessel as the fund from which comoffered by Strike to be put on board his vessel. pensation is to be derived. From this view of If one seaman may be engaged, why may not the subject, this court will be best understood a crew? the offense is the same in essence, wher it speaks of the home port of the vessel, though not in magnitude. The general policy an epithet which, it is very easy to preceive, of the law is, to discountenance every contribu- has no necessary reference to State or other tion, even of the minutest kind, to this traffic limits. And from this view of the subject it in our ports; and the act of engaging seamen, results, both that the forfeiture does not ride is an unequivocal preparatory measure for over the rights derived under maritime consuch an enterprise. This part of the decree, tracts, whether they be called liens or privi. therefore, must also be reversed.
leges, and that the real owners of a vessel, wlio The next question arises on the claims of the have themselves contributed to give her a material men, or rather of those whose claims foreign aspect or character, hold out the forwere sustained in the court below. From eign captain to material men, as one legally authose which were rejected there is no appeal. thorized to exercise the rights and powers over
On this point, the material facts are these: bis vessel which appertain to a foreign vessel. That this vessel, although appearing under the They are thus precluded by their own act from character of a foreign vessel, was, in reality, in denying her foreign character. In case of her home port; and this, whether considered as wreck and salvage, it is unquestionable that the property of Gunn, or of Maher and Strike. forfeitures would be superseded; and we see no The questions then arise, on what does the ground on which to preclude any other mariprivilege of material men depend? On the time claim, fairly and honestly acquired. state of facts, or on their knowledge or belief We concur, then, in the opinion of the of facts? On the actual absence of a vessel court below, that the fair claims of seamen, from her home port, or the power given to the and subsequent material men, are not overship-master, in another port, to subject his ves- reached by the previous forfeiture; and that, sel to admiralty process and implied lien, in even in the home port, a vessel may be subfavor of material.men? And, lastly, whetherjected to the liabilities of *a vessel in a [*418 416*) the prior forfeiture of the *vessel to the strange port, by being falsely held up as foreign United States precludes their general rights, by her owners. And the question will now be considered, whether these material men have sus-, ceeds of the vessel and cargo adjudged to the tained their claims against this.vessel upon that United States. principle.
Decree reversed. With this view the claims must be examined separately. The large claim of Maher himself, the real &c. On consideration whereof, it is adjudged,
DECREE.—This cause came on to be heard, owner, but effected agent, of the vessel, has ordered and decreed, that so much of the been properly rejected, and he has not ap- decree of the Circuit Court as affirms the pealed.
That of Despreux, for $1,856, was sustained decree of the District Court, dismissing so in the court below, and from that the United much of the libel as relates to the lading of
said vessel, and also so much thereof as susStates appeal. This item, we are of opinion, is effected by Despreux, Hubbard & Carr, James Ramsay,
tains the several claims of Pietro Rosso, Joseph express notice. Guion swears, that upon the and Richard Coleman, be, and the same hereby arrival of the vessel at Baltimore, he gave no
is annulled. tice to Despreux of her American character, ordered, that the proceeds of the cargo or
And it is further decreed and warned him against repairing her, and received lading of the said schooner St. Jago de Cuba, for answer that he was secured for the repairs. and so much of the proceeds of the sale There is nothing in the transcript to repel this of the said schooner as is embraced in the evidence, but many circumstances to corroborate it. He, therefore, does not bring himself appeal to this court, be, aud the same are
hereby cond ned as forfeited to the United within the rule. There is, however, one item in this account, schooner St. Jago de Cuba, and her cargo,
States, and that the proceeds of the said to the amount of $300 or $400, which was cer: be distributed according to Jaw; for which tainly good against all the world. This was for wharfage; but the credits in the account Circuit Court, with instructions to make such
purpose, this cause is remanded to the said will more than cover it, and having been paid distribution. by Maher, or Strike, his employer, it is but reasonable that the payments should be applied Criticised-19 How. 29, 38. to the item entitled to precedence.
Cited.--12 Wheat. 632; 5 How. 459; 6 How. 390; 19 The three claims of Hubbard & Co., for How. 29, 38; 7 Wall. 159; 10 Wall. 212; 11 Wall. 368; 419*) $72.04, James Ramsay, for *$645.99, 310, 341; Blatcht. & H. 92, 178, 232; Newb. 273, 312 and Richard Coleman, for $256.03, have noth- 1 Ware, 153; 2 Ware (Da.), 31, 74; 2 Abb. U. 8. 91; 1 ing in their circumstances to distinguish them Low. 377: Abb. Adm. 267, 272; 2 Wood. & M. 97: 3 from each other. They all allege the vessel to Wood. & M. 203, 505; Taney, 410, 501 ; 2 Curt. 410; 4
Ben. 296; 5 Ben. 65, 68, 153; 1 Sumn. 74; Crabbe, be foreign, and as she was, in fact, not foreign, 200 ; 1 Biss. 5. the question is, whether there was an imposition practiced upon them, under circumstances calculated to deceive and mislead men of or- [*INSTANCE COURT. SHIP REGISTRY [*421 dinary vigilance.
ACT.] We are of opinion there was not. It appears, that immediately on the vessel's arrival she was THE MARGARET, ALIAS CARLOS FERlibeled by Gunn, and although some difficulty has existed in the cause, in consequence of
NANDO. HALEY, Claimant. Gunn's libel not having been inserted in the
A transfer of a registered vessel of the United transcript, yet there are documents connected States, to a foreign subject, in a foreign port, for with it inserted, which sufficiently explain the the purpose of evading the revenue laws of the tenor and purport of the libel, if any doubt foreign country, with an understanding that it is could be entertained what that tenor was. These to be afterwards reconveyed to the former owner,
works a forfeiture of the vessel, under the 16th are, the answer and claim to it, and a retraction section of the ship registry act of the 31st of Decemof that claim, from which it appears, that dur- ber, 1792, c. 1, unless the transfer is made known in ing the whole time these material men were
the manner prescribed by the 7th section of the act.
The statute does not require a beneficial or bona furnishing this vessel, she was under arrest by fide sale; but a transmutation of ownership, “by the court of admiralty, under a libel, claiming way of trust, confidence, or otherwise,” is sufher as American property, in her home port,
Quære, Whether, in such a case, a reconveyance which claim, the retraction of the answer filed would be decreed by a court of justice in this to the libel fully admits. There was, then, to country. say the least of the facts, enough to put rea
The proviso in the 16th section of the ship registry
act, being by way of exception from the enacting sonable men upon inquiry. Despreux, it ap- Clause, need not be taken notice of in a libe pears, was put upon inquiry, and obtained brought to enforce the forfeiture. It is matter of security, and with ordinary prudence or vigi. defense to be set up by the party in his claim. lance these material men may have done the owner, and not to a sole owner of the ship. same. Many facts in the case concur to affect The trial, in such a case, is to be by the court, them with suspicion of positive knowledge of and not by a jury, in seizures on waters pavigable her real character. We think they have not from the sea by vessels of ten tons burthen and
upwards. sustained the exception made in the court below A registered vessel, which continues to use its 420*] in their favor, *from the general doc- register, after a transfer under the above circumtrine, that such claims cannot be sustained tion of the act, as using a register without being against a vessel in her home port.
actually entitled to the benefit thereof. The decree of the court below, therefore, so far as the appeal of the United States brings it APPEAL from the Circuit Court of Mary
This cause was argued by the Attorney-Gen- | nevertheless, a transfer binding between the eral for the appellants, and by Mr. D. B. parties, and changing the legal ownership. It Ogden for the respondent and claimant. was completely, within *the words of [*424
the law, a transfer, “by way of trust and 422*] *Mr. Justice STORY delivered the confidence,” to a foreign subject; the trust and opinion of the Court:
confidence being, that the vessel should be This is a case of seizure, for an asserted for reconveyed to the American owner when the feiture under the ship registry act of the 31st special purposes of the transfer were entirely of December, 1792, c. 1. The libel contains consummated. That a reconveyance would be five counts, the four first of which are founded decreed in an American court of justice, upon on the 16th section, and the last on the 27th such a transaction with a foreign subject, in a section of the act. The former declares, “that foreign port, in violation of the municipal if any ship or vessel heretofore registered, or laws of his country, is a point which we are by which shall be hereafter registered, as a ship or no means disposed to admit. It is sufficient vessel of the United States, shall be sold or for us, however, that the case is brought withtransferred, in whole or in part, by way of in the very terms of the act of Congress, which trust, confidence, or otherwise, to a subject does not require a beneficial or bona fide sale, or citizen of any foreign Prince or state, and but a transmutation of ownership,“ by way of such transfer shall not be made known, in trust, confidence, or otherwise." But it is said manner hereinbefore directed, such ship or that the case is not within the policy of vessel, together with her tackle, apparel and the act. What the policy of the act is, furniture, shall be forfeited.” The manner of can be known only by its provisions; and making known the transfer here referred to, is every section of it betrays a strong solicitude found prescribed in the 7th section of the on the part of the legislature to trace and act; and, so far as respects the present case, inspect every change of ownership; and, for would have been a delivery of the certificate of this purpose, to require a public avowal of registry by the master of the vessel to the it, and an alteration of the ship's documents, so collector of the district, within eight days after as to exhibit, at all times, the names of all perhis arrival in the district, from the foreign port sons who are the legal owners. The policy where the transfer was made.
evinced by this course of legislation, is the It appears, from the evidence, that the encouragement of American navigation and claimant was the sole owner and master of the American ship-building, to the exclusion of schooner under seizure. She was duly regis- foreign navigation and foreign ownership, and tered at the port of Baltimore; and on the 4th securing to American registered ships a preferday of May, she was duly transferred at ence, in all our revenue transactions, over all Havana, by procuration, to a Spanish subject vessels which were not strictly entitled to the domiciled in Cuba, and received the proper character. The legislature foresaw that it documents evidencing her Spanish character. would be impossible for the officers of governThe schooner was, at this time, lying at Ma- ment to ascertain the secret intentions of 423*) tanzas, and soon afterwards sailed *on *parties, or the object of ostensible [*425 the homeward voyage, under her American transfers of ownership. Whether such transfers papers, still having the Spanish documents on were bona fide, or colorable, for meritorious or board, in the custody of a person who assumed illegal purposes, were matters of private conthe character of a passenger, but who was, in fidence, and could rarely be ascertained by comfact, the Spanish master, and kept them con- petent and disinterested proof. To admit secret cealed. The name of the vessel had been iransfers of ownership to any persons, and blacked out of the stern, which was the first especially to foreigners, and allow, at the same circumstance that excited suspicion of her time, to the ships the full benefit of the American character. On further inspection, it was found character, would be hazarding the main objects that her name, Margaret, of Baltimore,” was of the act; it would invite all sorts of coninserted on a movable sheet of copper; and trivances to evade the laws, and disable the upon a close search, directed by the captain of government from possessing means to detect the revenue cutter, the Spanish documents frauds. The correct course of legislation was, were discovered, and delivered up to the col- therefore, obvious. It was to lay down a strict lector of Baltimore.
and plain rule, requiring all transfers to be The fact of the transfer of the schooner to a made known, from time to time, as they ocSpanish subject, and the assumption of the curred; 'and a surrender of the American Spanish character, are not denied; and the documents, when the legal ownership passed defense is put upon this point, that it was a to a foreigner, whatever might be the secret mere colorable iransfer, for the purpose of trusts with which it was accompanied. The evading the Spanish revenue laws, the real words of the section now under consideration American ownership not having been bona fide are direct to this purpose; and so far from changed. There is certainly nothing in ihis contravening, they support, in the fullest manrecord that shows that the intention might not ner, the general policy of the act. They are also have been to evade the American revenue not, then, to be consirued in a more limited laws; for the obvious purpose of keeping the sense than their obvious purport indicates. Spanish master and papers on board, was to But it is agreed that the proviso of this secassume the American character in our ports, tion shows that the forfeiture inflicted by the and to re-assume the Spanish character on the enacting clause is not absolute, and that the next voyage, so that the parties might obtain trial ought not to have been by the court, as a the fullest benefit of the double papers. But, cause of admiralty and maritime jurisdiction, assuming that the sole object of the transfer but by a jury, as upon an exchequer informawas a fraud upon the laws of Spain, it was, I tion, since a verdict alone can fix the forfeiture.