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Brig William Gray.
proposition of law. If the necessity which leaves no alternative but the violation of law to preserve life, be allowed as an excuse for committing what would otherwise be high treason, parricide, murder, or any other of the higher crimes, why should it not render venial an offence which is only malum prohibitum, and the commission of which is attended with no personal injury to another. The Court, therefore, cannot but yield to the weight of so many authorities, especially too when every decision accords with reason, common sense, and the feelings of mankind, which are universal and indelible.
But is it so very clear that the law itself does not make the exception? The Court is inclined to think, that on a fair .comparison of the different acts with each other, this will be found to be done. The legislature, by some of the provisions of the enforcing law, as it is called, certainly appear to have been of the same opinion.
The Court, therefore, thinks that the necessity which is proved to have existed, excused the party from all guilt, and of.course from the forfeiture which is sought; and that none having accrued, it is not among those cases which are referred for mitigation to the Secretary of the Treasury.
The sentence of the District Court must accordingly be reyersed.
J. O. HOFFMAN and S. Harris for the appellants,
Ship Cotton Planter.
THE SHIP COTTON PLANTER.
The promulgation of laws should be such as to afford every person who is to
be affected by them a reasonable opportunity of being as early as possible
acquainted with them. As it regards trade laws, unless previous notice of them be brought home to the par
ty charged with violating their penal provisions, they are to be considered as begiming to operate in the respective collection districts only from the times
they are received from the proper department by the collector. The Court in considering a question of forfeiture disregards a refusal of the
Secretary of the Treasury to remit the penalty. The embargo law was passed the 22d of December, 1807. A vessel cleared out and
sailed from St Mary's, Georgia, on the 15th of January, and in the evening the collector received the information of the passage of the law, and gave public notice of it. It did not appear that it was known to the master or owners of the vessel prior to her sailing. Having been seized for a violation of the law, the Court decreed her restoration.
LIVINGSTON, J. THE libel in this case alleges that the Cotton Planter, being a ship of the United States, proceeded on the 18th of January, 1808, from St. Mary's in Georgia, to Antigua in the West Indies, contrary to the act,a laying an embargo on all ships and vessels in the ports and harbours of the United States; and that by reason of the premises and by force of the statute in such cases made and provided, the said ship with her tackle, &c. became forfeited.
Benjamin Chase, who claims for himself and Benjamin Morris, as owners of the said ship, states in his answer, that she was cleared out on the 15th of January, 1808, in due form of law by the collector of the port of St. Mary's, for a voyage to Antigua, with a proper cargo for that island. That the same day she proceeded on her said voyage and left the territories of the United States, and having discharged the cargo she took out, she returned with another to the port of New-York. He further says that when the Cotton Planter was cleared at St. Mary's, and when she sailed from thence for Antigua,
a 4 Laws United States, 129,
Ship Cotton Planter.
and when she quitted the territories of the United States, on that voyage, no law of the United States was known to him, or to the said Benjamin Morris, or had been promulgated at St. Mary's, whereby such clearance and voyage were prohibited, or the exportation of such cargo for Antigua rendered unlawful.
A replication being filed, and proofs taken, the District Court, after argument, condemned the Cotton Planter as forfeited to the United States.
From this decree an appeal was interposed to this Court, on the argument of which both fact and law have been greatly controverted.
Did the claimant know of the act laying an embargo which passed the 22d of December, 1807? or of the act supplementary thereto, passed on the 9th of January, following, or had these laws been duly promulgated at St. Mary's antecedent to the clearance of the vessel from the United States. ?
If he were ignorant of these laws, and they had not been thus previously made known at St Mary's, is his vessel pro, tected from forfeiture ?
The Court, whose office it is in cases of this kind to decide the fact as well as law, is of opinion that this ignorance in the claimant was real and not affected. But did it entertain doubts on this point, considering itself bound by the same rules which govern juries in penal cases, it would acquit the owners of all knowledge of the laws in question.
It is certain that the collector of the port of St. Mary's did not receive the first embargo law until the evening of the day on which the Cotton Planter was cleared at his office, nor until she had sailed beyond the jurisdiction of the United States. It is not proved that a printed or any other copy of the act had reached St. Mary's, or been published, or that the same was in any other way known there. The claimant denies such knowledge on oath ; and the mate declares that at the
Ship Cotton Planter.
time the yesssl sailed he had never heard of any act of Congress laying an embargo, and that he does not believe the owners had.
Several witnesses also who reside in Port St. Mary's, and who have been examined under a commission, testify that they knew nothing of the act until the collector's publication of it in the market, which was on the 16th of January, 1808.
If then the law was not published at St. Mary's, and not known even to the collector, why impute without proof a knowledge of it to the claimant ? Although rumours may have reached St. Mary's of such an act prior to the 15th, there could be no reason for the merchants there suspending their ordinary business until the truth of them could be known. It appears, indeed, from his letter to the Secretary of the Treasury, that the collector of that port believed, after the vessel had sailed, that the claimant knew of the act when he obtained a clearance; but all his information being hearsay, whatever credit the Secretary of the Treasury might very properly be disposed to give to it, the rules of evidence compel this Court to pass it by as no testimony. The persons from whom his information was received, should have been examined.
The fact then, on which the defence rests being satisfactorily established, it remains to see what influence it is to have on this prosecution.
On the part of the United States it is said, that ignorance is no excuse ; that every man is bound, or at least presumed, to know the law; that such an inquiry is therefore never made, and would, if tolerated, lead to uncertainty and introduce incalculable mischiefs. That if ignorance be allowed as an excuse in one case, it must be in another ; by which means the ignorant members of a community, who are as apt as any to commit offences, would generally escape with impunity. That there is power in the Secretary of the Treasury to relieve in case
Ship Cotton Planter.
of an intentional violation of laws relative to trade, and therefore the less occasion for the interposition of the judiciary; that the Secretary has refused relief here, because he considered the alleged ignorance of the claimant a mere pretence.
The Court will not dispute the correctness of any of these principles, but it is much doubted whether they apply to this case. We are not inquiring whether ignorance of a law is ever to be received as an excuse, but at what time an act of Congress is to be considered as having the force of a law within a particular district. The act under consideration, it is said, is silent as to the time of its commencement. It neither fines on any particular day, nor is it declared in terms that it shall be in force from and after the passing thereof. It is unnecessary therefore to decide whether Congress has it not in their power by express provisions for the purpose to pass a law of the most penal nature, which shall go into operation in every part of the United States on the very day on which it receives the President's sanction. This law has no such provisions ; and therefore in settling the time of its commencement, the Court is not required to encroach upon the province of the legislature, or to interfere with any of its proceedings ; an office at all times of high delicacy, and which no Court would enter upon without great reluctance, and extreme circumspection. ·
But whether a law thus worded be in force throughout the United States on the day of its passage, or not until after a reasonable time for promulgation of it in the different parts of the union, is a question purely of judicial cognizance, and may be decided without interfering with any other department of government; and this again resolves itself into the simple question, whether in a case like this any promulgation is necessary
A more abject state of slavery cannot easily be conceived, than that the legislature should have the power of passing laws inflicting the highest penalties, without taking any mea