« PreviousContinue »
Ship Cotton Planter.
sure to make them known to those whose property or lives may be affected by them. It is not only necessary, therefore, in a country governed by laws, that they be passed by the supreme or legislative power, but that they be notified to the people who are expected to obey them. The manner in which this is done may vary ; but whatever mode is adopted, it should be such as to afford a reasonable opportunity to every person who is to be affected by them, of being as early as possible acquainted with them. “Whatever way is made use of, it is incumbent on the promulgators,” says the learned commentator on the laws of England, “ to do it in the most public and perspicuous manner.” The Court will not stop to inquire in what manner the laws of Congress, relating to different subjects, should be promulgated, or whether a mere deposite of them in the proper office, after a reasonable lapse of time, would not amount to a sufficient notification. But as it regards laws of trade, which is the case before it, rendering penal acts, although sanctioned by former laws, and done in concurrence and with the consent of its own officers, the Court thinks it cannot greatly err in saying, that such laws should begin to operate in the different districts only from the times they are respectively received, from the proper department, by the collector of the customs, unless notice of them be brought home in some other way to the person charged with their violation. A proposition so reasonable, and so consonant to those principles of justice and humanity which are unchangeable, requires only to be stated to receive our universal assent. That a law which passes at Washington should subject to forfeiture every vessel which sailed from the United States on the very day of its passage or the day after, however remote the port of departure, and after a regular clearance by the authorized agent of government, is a doctrine leading to such unjust and tyrannical consequences, that nothing but a course of decisions, whose meaning admitted of
no doubt, could induce this Court to sanction it. There may be a difference in name, but there is none in reality, between an ex post facto law, which Congress cannot pass, and one whose operation is to be so universal and instantaneous. The position that the law intends every person to have notice of what is done in parliament, as soon as it is concluded, because the whole realm is there represented, is too quaint to require refutation. Indeed, the same learned writer, who would very gravely persuade us that a merchant in Boston, at the distance of five hundred miles, must know every law of Congress the moment it is passed, merely because he may have had a voice in the choice of a few representatives, who may all have voted against it, as if not satisfied with his own reasoning, and feeling, no doubt, the propriety of affording to the subject some other and better means of information, tells us, that he had found upon examination, that not long after the art of printing found its way into England, which was between three and four hundred years ago, the practice had been to publish acts of parliament in the counties, to the end“ that the subjects might have express notice thereof, and not be overtaken by an intendment in law.” For this purpose he mentions, that at every parliament the acts passed were transcribed on parch-, ment, and by the King's writ, which was either in Latin or French, directed to the sheriff of every county, commanding him to proclaim the same in all places throughout his whole bailiwick when he should think most fit, and see that they were firmly observed and kept. Now this practice, which we have on such high authority, together with the forms of the writs which were used, is considered as furnishing better evidence of the ancient common law of England than any of the modern decisions which have been referred to; and although it is no reason for insisting on a similar mode of promulgating acts of Congress by proclamation, it is abundantly sufficient, were any authority necessary, to show that in some
Ship Cotton Planter.
way or other some notification must take place previous to their operation. And if such promulgation be at all necessary, it is as clear that one made at one port is not enough to bind the citizens at another, unless after a lapse of time at least sufficient to convey the intelligence thither. But whatever mode may be best suited to other laws, the practice of our government has not left us in the dark as to the manner in which laws of this nature should be promulgated. It has been its invariable practice, if my information be correct, to transmit them to the different collectors, with or without instructions from the Treasury department, as to the manner of their execution. When the inquiry then is thus limited to the time of its reception by a particular collector, none of that uncertainty will follow, which is so much deprecated by the District Attorney. From that time, and not till then, should the rule of ignorantia legis neminem excusat be enforced ; and such, if this Court be not greatly mistaken, is the meaning of it; not that a party shall suffer, notwithstanding his ignorance of a law with which he had no means of becoming acquainted, or which it was impossible for him to know; but that when this opportunity has once been afforded, the law properly presumes that every person knows or may know it, and therefore shuts its ears against every allegation to the contrary. It must have been with the same understanding of this rule, that Mr. Justice Blackstone remarks, that “all laws should be made to commence in futuro, and be notified before their commencement, which is implied in the term prescribed; but when this rule is in the usual manner notified, or prescribed, it is then the subject's business to be thoroughly acquainted therewith; for if ignorance of what he might know were admitted as a legitimate excuse, laws would be of no effect; but might always be eluded with impunity." To the rule thus modified no objection lies. But to give it the sense which the respondents put upon it, would interfere with
Ship Cotton Planter.
another maxim at least as ancient and more self-evidenta which is, that the law never compels a man to do an impossibility-lex neminem coget ad impossibilia. No man in England is bound to observe an act of Parliament impossible to be performed. Why then should he be compelled here to as great an impossibility, that of conforming his conduct to a rule which he had no opportunity of being acquainted with?
It has thus far been supposed, that the act laying an embargo contains no provision as to the time of its commencement, and the argument at the bar proceeded on that ground; but it is not very clear that it is altogether silent in this respect. With regard to foreign vessels, it is provided, that they may depart with the cargo which they have on board when notified of the act. This not only determines its commencement as to foreign vessels, but by implication at least as to our own also. It is equivalent to saying, that no vessel of the United States, although cleared, should be permitted to depart after being notified of the act. The President also is authorized to give such instructions to the officers of the revenue as shall appear best adapted for carrying the act into effect; thereby again implying that it was to have no force in the different districts until promulgated at the custom houses. A great many vessels must have sailed from the United States after the passing of this law, and previous to its being received by the different collectors, but no mention has been made of the seizure or condemnation of any such vessel. Nor is there any doubt that the Secretary of the Treasury would have remitted the forfeitures, if any had accrued, if he had been satisfied of the bona fides of the transaction. As the decision of that gentleman has been incorporated with the proceedings in this cause, and has in some way or other come up with the appeal, it may be thought by some that this Court thinks itself competent to reverse what he has done.
Ship Cotton Planter.
The Court disclaims any such right. It is not now examining or revising what he has done, but whether a forfeiture has been incurred; not whether the penalty should be remitted, but whether it ever attached. If the penalty were incurred, it would have nothing to do but to say so, and leave it to the department to which the law has assigned it to determine on its remission.('),
Upon the whole, as the act laying an embargo contains no express provision as to the time of its commencement, and as it appears that the law was not received or promulgated at the custom-house at St. Mary's, nor in any other way made known to the inhabitants of that port, or to the claimant himself, before the clearance and sailing of the Cotton Planter, this Court is of opinion that no forfeiture has accrued, and that therefore the judgment of the District Court must be reversed.
R. HARISON, J. O. HOFFMAN, and B. ROBINSON, for the
(1) After the condemnation of the Cotton Planter in the District Court, the claimant, agreeably to the act of March 3, 1797, (4 vol. Laws U. S. 585.) presented his petition to that Court in order to obtain a remission of the penalty by the Secretary of the Treasury. A statement of facts, with an expression of the favourable opinion of the Court, was transmitted to the Secretary of the Treasury, (Mr. Gallatin) who refused to remit the penalty. All the papers relating to this proceeding were sent up to the Circuit Court as a part of the transcript,