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factory, but were it material, the Court would require much stronger proof on the part of the United States than has been given, that she arrived without guns. The superficial inspection made by Norwood, proves only that they were not mounted. They may have been in the hold, and yet it might be very difficult for the master after the dispersion of his crew to prove the fact. In this state of things the captain's claim, where there is no contradictory evidence whatever, deserves some attention. In a doubtful case it must ever be the disposition of a Court, if a leaning in any case be justifiable, to lean against a forfeiture, and to decide questions of fact accordingly. Such then being the state of the testimony respecting this fact, the Court thinks it a duty to believe that when the brig arrived she had on board six guns and an arm chest. Whether she took out the same or others of equal size, is not material. There is no evidence of any deception having been practised at the custom-house on this subject, either as to the number or size of the guns, other than what may be inferred from what is said to be contrary to its usage in such cases. Whatever this usage may have been, it is certain that it was not invariable, for in this very case there was a departure from it, according to the relation of one of the witnesses on the part of the United States.
The collector should have required further proof at the time, if he thought it necessary, that this vessel was entitled to take out guns. Not having done so, the Court will not easily lend its ear to suggestions of fraud and imposition, especially when so feebly supported as in this case, and where they are deduced rather from reference to a general usage of the custom-house than from any positive proof of undue practice or misrepresentation. It will have already been perceived that the Court does not consider the taking of the guns, arm chest, or cannon ball on board under these circumstances, a cause of confiscation,
If Mr. Gillespie be credited, there is as little difficulty about the powder: and here the Court must depart from all the rules by which testimony is to be weighed, before it can free itself from the influence which this testimony is entitled to. Without any interest in the event of this prosecutionplaced in a situation which afforded him an opportunity of knowing every thing that was going on--under the obligations of an agent to act with more than ordinary circumspectionand without any attempt to impeach his character, how can the Court refuse its assent to his relation, if not in conflict with that of other witnesses of equal credit. It must be confessed too, that his account of this whole transaction is such as it is natural to have supposed it to have been. Under this view of the testimony of the witness, the Court feels itself bound to suppose that a regular permit was obtained for the gun-powder. It is hardly possible to believe that a man of ordinary prudence would have so publicly purchased and sent thirteen casks of powder on board of a vessel which had already incurred some suspicion, and which if discovered, would have inevitably occasioned her forfeiture. Independent then, of his positive asseveration on this subject, I should be disposed to think that a permit had been obtained. If one were had, and such is the belief of the Court, the collector must have considered the powder as necessary sea stores for an armed vessel ; and whether he judged right or wrong, there being no mala fides on either side, it is not the business of the Court to condemn the property of an innocent man for the error of an officer in whom the government had vested a discretion.
Of the plank it cannot be expected that much will be said. It is not believed that great reliance is placed on this articles being on board. The probability is, for much credit is not due to the story of the Silvas, which in this respect is contradictory, that what plank might have been on board when the Isabella
proceeded to sea, were the remains of some which had been sept thither by Brown the carpenter, for the purpose of repairs, and that the whole not being used, she carried a few feet in small pieces with her, to be used on her passage, it being usual, as Mr. Brown states, to have some pieces of spare plapk on board of vessels in case of accident. This Court cannot see in the letter or spirit of the embargo laws, any thing which calls for a condemnation of a vessel for taking away the remnant of a plank or two, which the master may have purchased and paid for to repair his vessel while in port, but all of which may not have been found to be absolutely necessary for that purpose.
Upon the whole, as every thing except the trifling article of one plank, or the part of a plank, was put on board under a license from the custom house, and under the inspection or with the knowledge of its officers, and a clearance granted with the opportunity of a full knowledge of every thing that had been put on board ; and as the articles thus permitted to be taken, were, in the judgment of the collector, necessary provisions and sea stores, and were actually used as such; and as there is no evidence of fraud in the obtaining of the permits, or in any part of the transaction, this Court thinks that no forfeiture was incurred, and therefore decrees that the judgment of the District Court be reversed.
N. PENDLETON for the appellants.
THE SLOOP ELIZABETH.
By the provisions of the embargo laws, a vessel licensed for the coasting trade was not required to obtain a clearance or permit on departing from a port of the United States, but a clearance was pecessary only on her departure from a district of the United States. The bond required to be given by vessels of this description was the only security provided against their leaving a
port. Long Island Sound does not belong to either Connecticut or New-York, nor to
any district of either of those states. A coasting vessel, therefore, sailing from the port of New-York into the Sound, although she did not enter a district of Connecticut, departed from the district of New-York, and not having a clearance, as required by the embargo laws, was held to be forfeited.
LIVINGSTON, J. THE Sloop Elizabeth, a vessel whose employment was confined to the navigation of the river Hudson, sailed about the middle of July, 1808, from the port of New-York with a cargo of 190 barrels of flour, without a permit or license, and without a manifest of her cargo having been delivered to any person. A few days after she was taken by the Revenue Cutter in Long Island sound, at the distance of about 110 miles from the city of New-York. When she was first discovered by the Cutter, on the day of her capture, she was considerably nearer to the shore of Connecticut than to that of Long Island.
On being brought to the city of New York, the Elizabeth and her cargo were libelled in the District Court of this district, and condemned for a contravention of the act laying an embargo, and certain acts supplementary thereto.
· The infractions relied on, and to which alone the proofs and admissions apply, are
That she departed from the port of New-York without a clearance or permit, and also that she left the district of the city of New-York without such papers.
It being admitted that the Elizabeth left the port of NewYork without a permit or clearance, it becomes a question of
law, how far such conduct in a vessel of this description, works a forfeiture of herself or cargo. This consequence is supposed to be produced by the 3d section of the first supplementary act, which passed the 9th of January, 1808; and which declares “ that if any ship or vessel shall depart from any port of the United States without a clearance or permit, such ship or vessel, and goods, &c., shall be wholly forfeited.” From the very general and comprehensive phraseology here used, it is contended on behalf of the United States, that the Court cannot except vessels of any description whatever. It is very certain that this section taken by itself, and without reference to other parts of this and other acts made in pari materia, would include the case of the Elizabeth. But it is the duty of a Court, in construing a written law, in doubtful cases, to compare all its parts, in order to discover the intention of the legislature; and however broad some of its expressions may be, yet, if on such examination, it shall clearly appear that they are and were intended to be limited by other provisions of the same or other acts on the same subject, it cannot be improper to restrain them accordingly.
The first embargo law having required no security against its violation from any others than registered or sea-lettered vessels, those licensed for the coasting trade were at liberty to depart from any port without bond being given to reland their cargo in the United States. . This omission was soon perceived, and in the very next month a supplementary act was passed. By the first section of this act, in case of a vessel licensed for the coasting trade, a bond was to be given in double her value, and that of her cargo, that she should not proceed to any foreign port, and that the cargo should be relanded in the United States; and the second section provides, that it shall be sufficient, in the case of a licensed vessel whose employment has uniformly been confined to rivers, bays, and sounds, to give bond in an amount equal to three hundred