sited in other hands; and that by so doing, we should prostrate that every instrument which we have taken a solemn oath to support. VIRGINIA, 1815. Jackson V. Row. To claim a Isaac Turner, a man of colour, was brought before the Hon. Ashur Ware, judge of the district court of the Uni- seaman, who had absented ted States in Maine, on the 8th of March last by writ of himself from habeas corpus. It appeared on examination, that Turner the ship for had shipped on board the brig Effort, of Salem, Capt. Mil- two nights, by ler, which was then lying at the wharf in Portland; that an iron chain Turner had absented himself from the vessel two nights deck for the successively without leave, and the second time was purpose brought on board, late in the following forenoon, by the preventing his assistance of a civil officer. fastened to the of escape is not It appeared by the declaration of the owner, that the contrary to the general captain, by his direction, then caused a chain to be fastspirit of the ened to the cook's leg by a blacksmith, with an iron maritime law, rivet above the ancle; and that the chain, which was of nor to the act sufficient length to enable him to traverse the deck, was of congress secured by a lock to an iron ring, bolted into the deck. July 20, 1790. It appeared that during the day time, he was kept in this situation confined to the caboose house or galley, at his work as cook. At night his chain was unlocked, and he was secured in a place particularly fitted up for him. between the decks, so as to enable him to get in and out of his berth, but at the same time so as to prevent his escape. He was kept in this situation alternately day and night, for the space of from five to seven or eight days, by order of the owner, considering it, as he alleged, more for the benefit of the cook himself, than to cause MAINE, 1824. United States V. Turner. him to be committed to prison under the statute at the expense of the cook himself, which he several times solicited. There was no proof, however, of any ill treatment on the part of the owners or officers of the vessel, beyond what might necessarily arise, or be inferred from these circumstances, except from the declaration of the cook himself, that he was quite unwell during a part of the time. He was permitted to have no communication with any person on shore, from an apprehension that they might assist him in escaping. It was acknowledged by the cook that he finally contrived to file off the rivet around his leg, and make his escape from the vessel, as it appeared, during supper time, although he complained that his leg was so much galled as to prevent his escaping to any considerable distance. He was re-taken within a day or two after, and committed to prison; and these circumstances appearing as thus stated on the examination upon the habeas corpus, it was moved on his behalf that he should be entirely discharged. It was urged on behalf of the prisoner, that this mode. of restraint, securing seamen like a criminal on the deck of a vessel, with chains and fetters, by the side of a public wharf, was such a violation of the personal rights of the seamen, such a public scandal, and so revolting to the spirit of our laws, as amounted to a total dissolution of the maritime contract, and entitled the seaman to an absolute discharge. By the court. The contract of hire for marine service stands, on reasons in many respects, peculiar to itself, and bearing a strong analogy to contracts for military service. A seaman who abandons a vessel is not considered merely as violating a civil contract, but as, in some degree, a criminal, and liable to corporeal punishment. There was nothing in the mode of punishment adopted on this occasion contrary to the general spirit and principles of the maritime law. There was, under all circumstances, no excess of punishment in this case; and lastly, the statute of the United States, (July 20th, 1790,) providing for the apprehension of deserting seamen by warrant, and their confinement in prison, is only auxiliary to the marine. law, and does not supersede it even in the ports of the United States. The prisoner was therefore remanded into custody. Present-Hon. Cadwallader D. Colden, Mayor. P. C. Van Wyck, Counsel for the People. Price and David Graham, Counsel for the Defendants. By the Court.-The defendant Scholtz was convicted An indictby the verdict of a jury, on an indictment containing two mentcharging a conspiracy counts, the first of which charges, that he and Scott in- by cheating tending unlawfully, fraudulently and deceitfully, to cheat and defraudand defraud one Miller, and unlawfully to obtain from him ing a person his property and moneys, viz. 200 dollars due to him on a of his money, pension granted by the United States, did conspire to de- need not state fraud, cheat, and from him (Miller) to obtain $200 as which theconthe means by aforesaid, viz. the money due on the pension aforesaid, &c. spiracy The second count charges that Scholtz and Scott con- effected. spired and combined to defraud and cheat the president of the Branch Bank, viz. Isaac Lawrence, to obtain by fraudulent means, $200 due the said Miller, upon a pension grant, ed to him by the government of the United States, &c. A motion is made by the prisoners' counsel, in arrest of judgment, founded on the following objections to the indictment: - 1st. That the indictment does not state the means which the conspirators intended, or had agreed to adopt, to effect their object. 2d. That it does not state that the defendants unlawfully conspired. 3d. That the indictment is fatally incorrect by the omission of the word "him." In support of the first objection, it is contended, by the defendants, that though it may be sufficient to state that the defendants conspired when the object of the con VOL. II. 78 1820. N'W YORK, spiracy is in itself unlawful, yet where this is not the case, September, where the object to be effected may be lawful, then the indictment must show that the conspirators had agreed or intended to pursue unlawful means to effect their end; and to apply these principles to this case, it is contended, that the object of the conspiracy, as set forth in the indictment, was not necessarily unlawful, because it might not have been unlawful to obtain Miller's $200. The People V. Scott. But the indictment states, that the defendants conspired and agreed to obtain the money by cheating him. To cheat and defraud a man of his money is certainly unlawful, and therefore I cannot think the principles advanced by the defendants' counsel, however correct they may be, apply to this case. I forbear to reason on the subject farther, because I think the authorities which have been referred to, on the part of the prosecution, establish the validity of the indictment. In the note to 13 East, 231. we have the opinions of Lord Mansfield and Judge Buller, that it is sufficient to state the conspiracy and its object, and that it is not necessary that the means should be set forth. In that case (The King against Eccles and others) the defendants were indicted for conspiring, by indirect means, to prevent one H. B. from exercising the trade of a tailor. It was moved to arrest the judgment, because the indictment did not state the fact upon which the indictment was founded, or the means used, or intended to be used, for the purpose. The two great law characters I have mentioned, overruled the objection: Judge Buller saying it would have been sufficient that the defendants conspired for the purpose mentioned, without saying that they intended to effect it by indirect means. Now, if it be said that this decision was made on the ground that the object of the conspiracy was unlawful, viz. to prevent H. B. from exercising the trade of a tailor, it may be answered, that it did not follow, necessarily, that it was unlawful to do this, because, peradventure, he might have wanted the qualifications requisite, by the laws of England, to authorize him to follow that trade. At all events, it must be as unlawful to cheat and defraud a man of his money, as to endeavour or design to prevent his exercising a particular trade. There are, in a variety of books of high authority, pre-cedents which support the sufficiency of this indictment; among others, (3 Chitty, 1186. 1188. Starkie, 685.) In N'W YORK, each of these cases, the indictment contains a general September, count of this nature. So, in an indictment against a person for being accessory to a felony, before the fact, it is not necessary to set forth the means, by which the accessory incited or aided the principal to commit the felony, or where the charge is against an accessory, after the fact, how the accessory comforted the felon, because, says the book, it was perfectly immaterial in what way the purpose of the one was effected, or the harbouring of the other secured; and, as the means are frequently of a complicated nature, it would lead to great inconvenience and perplexity, if they were always to be described upon the record. It is on this last ground that this case of conspiracy, and some others, are permitted to be exceptions to the general rule that an indictment must not only charge the ubi quando, quid, &c. but the quo modo; and if this exception was not admitted, as to conspiracies, it would, in most instances, be impossible to frame a good indictment. For if the means by which it was intended to effect fraud must be stated, it must be that all the means are to be fully and truly stated; an omission or mis-statement, as to any particular and essential part, would be fatal. When it is considered how ingeniously complicated these fraudulent schemes are, it must be obvious how difficult it would be, in most cases, to set out truly, on the face of an indictment, all the contrivers may have intended. The testimony on the trial afforded evidence of a combination of circumstances which the defendants had involved in their designs, that could not have been set out in an indictment with all legal force and certainty, without a prolixity which would be highly inconvenient. Indictment held sufficient. 1820. The People V. Scholtz and Scott. |