BRIG

bargo laws of the United States, by sailing to a foreign SHORT port. The fact is admitted by the Claimants, who alSTAPLE lege, in justification of it, that the vessel was captured, while on her voyage to Boston, by a British armed vesU.STATES. sel, and carried into St. Nichola Mole, where the government of the place seized the cargo.

r.

nation for going to a foreign port.

small force be

master & crew

tempt to res

It appeared in evidence that the Short Staple sailed If a vessel be from Boston, about the 10th of October, 1808, with incaptured by a structions to procure a cargo of flour, and return theresuperior force and a prize- with to Boston, unless the embargo should be removed master and a before the commencement of her return voyage, in which put on board, case she was directed to proceed to the island of Gaudait is not the loupe. At Baltimore she took on board a cargo of duty of the flour, and sailed thence for Boston, about the 28th of of the captur- October. She was detained, s veral days, in Hampton. ed vessel to at- Roads, by contrary winds. During this detention, the cue her for British armed vessel Ino put into Hampton Roads for they may the purpose of repairing some damage sustained in a thereby expose the vessel The Ino had been in the port of to condemna- Boston while the Short Staple lay there, and had cleartion although ed out for the Cape of Good Hope, though her real desnocent. tination was Jamaica. The reason her captain has since assigned for this imposition, was that by clearing out for the Cape of Good Hope, he was allowed to take on board a larger supply of provisions than would have been allowed, had he cleared out for any port in the West Indies.

otherwise

storm on the coast.

As soon as the wind was favorable, the Short Staple, together with another vessel, likewise bound from Bal-' timore to Boston, called the William King, put to sea, and was followed, by the Ino, who soon overtook them, and took possession of them both as prize, alleging that they were bound to a French Island. The captor put a prize-master and two hands on board the short Staple, and sailed in company with them until they fell in with a British ship of war. The captain of the Ino directed the prize-master to meet the ship of war, and submit to her orders; while the Ino, dreading that her hands might be impressed, made sail to the windward and escaped. After their papers had been examined, the Short Staule and the William King were permitted to proceed on their voyage, and were carried into St. Nichola Mole, the place appointed by the captain of the Ino for

v.

meeting them when he was separated from them by the BRIG ship of war. They arrived at the Mole about two days SHORT after parting from the Ino, who followed them, and en- STAple, tered the port soon after them. The government of the place insisted on detaining one of the vessels, as provi- U.STATES. sions were scarce at the Mole, and the Short Staple was given up to them. Her cargo was landed under the direction of the government, and purchased at about $ 32 per barrel. Having received about $1,200 in part pay for the cargo, the captain of the Short Staple sailed to Turk's Island, and loaded her with a cargo of salt, with which he returned to a port in Massachusetts, where his vessel was seized as having violated the embargo laws. The William King appears to have been carried to Jamaica, and there liberated without having been libelled. The Short. Staple was condemned in both the District and Circuit Courts, and the case is brought before this Court by writ of error.

P. B. KEY & R. G. AMORY, for the Appellants, contended,

1. That no law prohibited the Short Staple from going to the West Indies; and

2. That she was carried there by the superior force of a British vessel of war.

1. There was no law then in force by which the brig could be condemned for going to a foreign port.

The only embargo laws then in force which could affect this vessel were the original embargo act of 22d Dec. 1807. (vol. 9, p. 7,) and the supplementary act of 9th of January, 1808-vol. 9. p. 10.

The first act laid an embargo on all ships and vessels bound to any foreign port or place," and directed that no clearance should be granted for any foreign voyage; and that no registered or sea-letter vessel, having on board a cargo, should be allowed to depart from one port of the United States to another port of the United States, unless the master, &c. should give bond in double the value of vessel and cargo, that the cargo should be re-landed in the United States. The act did not VOL. IX.

8

BRIG give any forfeiture. The first section of the 2d embargo SHORT law (the supplementary act of January 9th, 1808,) rcSTAPLE, lates only to vessels licensed for the coasting trade." v. The 2d section relates only to vessels licensed for the U.STATES. fisheries or whaling voyages.

The 3d section enacts, that "if any vessel" "shall, "contrary to the provisions of this act, or of the act to "which this is a supplement," "procced to a foreign "port or place," "such vessel shall be wholly forfeited."

If any forfeiture is given it must be by this sectionand this section applies only to such vessels as shall violate the provisions of this or the former act. The "provisions of this act" do not apply to a registered vessel, but only to licensed coasters and fishing vessels. The first embargo law did not forbid a vessel to sail to a foreign port if she should have a clearance but relied upon the bond and security that the eargo should be relanded. It was the violation of a contract not an offence against law. It was a breach of the condition of the bond, but no crime. Every man has a right to refuse to comply with the condition of his bond if he will pay the penalty. The United States, in the present instance, did resort to the bond. It is true they did not recover, because the jury found a verdict against them upon the issue of fact. But they have had their remedy.

A registered vessel could only violate the provisions of the first or second embargo law, by going to a foreign port without a clearance; or by going to a port of the United States without giving bond. A vessel which had a clearance and had given the bond was not forbidden to go to a foreign port. The Short Staple had a clearance and had given the bond. The provisions of the supplementary act could only be violated by licensed coasters and fishing vescels, and are not applicable to the present case. The vessel did not go to a foreign port contrary to the provisions of the act, but contrary to the condition of the bond.

JONES, contra.

The only questions are whether the 3d section of the 2d embargo law superadds the forfeiture of the vessel

to the penalty of the bond, for violation of the previous BRIG law, or whether it provides a forfeiture for the violation SHORT of a new prohibition.

STAPLE, v.

The expression" contrary to the provisions of this U.STATES. act or of the act to which this is a supplement," mean contrary to the spirit and intention of those acts. The spirit of the former act was unquestionably a prohibition of all foreign trade. To go with a cargo to a foreign port was clearly against the spirit of the embargo. A vessel violates the provisions of the act when she violates the bond which the act provides. The act declares that an embargo shall be laid on all vessels bound to a foreign port. The word embargo is equivalent to a prohibition. And the words "bound to a foreign port" mean a vessel intending to go to a foreign port-not merely a vessel ostensibly bound to such port.

But if the vessel, by violating the bond does not violate the law which requires the bond, yet the third section of the second embargo act creates a new offence, viz: that of going to a foreign port. It is coupled, in the same sentence, with the prohibition to put foreign goods on board of another vess 1, which is unqucstionably an entirely new offence, and yet, according to the words of the act, must be done contrary to the provisions of this or the former act. This shows that the legislature did not mean to confine the forfeiture to violations of the first act, or of the two first sections of the second act.

AMORY, in reply,

Observed that the word embargo meant a restraint, or confinement of vessels already in port, and could not affect the conduct of a vessel after she had left the port. If she has a license to leave the port, the embargo, as such, cannot make her subsequent conduct unlawful.

February 17th. Absent....JOHNSON, J. and TODD, J.

MARSHALL, Ch. J. after stating the facts of the case, delivered the opinion of the Court as follows:

It has becu contended by the Plaintiffs in error,

BRIG

SHORT

1. That the Short Staple being a registered vessel, and having given bond as required by law for re-landSTAPLE, ing her cargo in the United States, is not liable to forfeiture, it she has violated the condition of that bond.

v. U.STATES.

2. That her sailing to a foreign port, being under the coercion of a force she was unable to resist, is justifiable under the laws of the United States.

The first error has been pressed with great earnestness by the counsel for the Plaintiffs; but the Court is not convinced that his exposition of the embargo acts is a sound one. On this point, however, it will be unnecessary to give an opinion; because we think the necessity under which the Claimants justify their going into St. Nichola Mole, is sustained by the proofs in the

cause.

It is not denied that a real capture and carrying into port by a force not to be resisted, will justify an act which, if voluntary, would be a breach of the laws imposing an embargo. Nor is it denied that if such capture be pretended, if it be made with the consent and connivance of the parties interested, such fraudulent. capture can be no mitigation of the offence. The whole question, then, to be decided by the Court is a question of fact. Was this capture real-was the force such as the Short Staple could not resist? or was it made in consequence of some secret arrangements between the captor and captured?

It is contended, on the part of the United States, that the circumstances of this case are such as to outweigh all the positive testimony in the cause, and to prove, in opposition to it, that the Short Staple was carried into St. Nichola Mole, not by force, but with her consent, and by previous concert between her owners and the captain of the Ino.

Those circumstances are,

1. The arrival and continuance of the Ino in the port of Boston, while the Short Staple lay in that port prerious to her departure for Baltimore..