
    The United States against John Smith.
    THIS was an action of debt to recover double the value of the interest which the defendant had in certain slaves, transported in the brig Heroine, whereof the defendant was sole owner and master, from .Africa to Ha-■vanna, and there sold, by the direction of the defendant, and for his benefit, contrary to the provisions of the act of congress of May 10, 1800. The action was commenced March 31,1808. The transportation and sale of the slaves were thus alleged in the declaration: “ That while yessej remained of! ⅜¾⅛ epajftof -Africa, to wit, after the'first day of December, 1805, and before the first day of Ap.rU then next following, by direction of said John Smith, and for his use, the crew of said vessel did forcibly seize, carry on board said vessel, and thefts confine more than one hundred of the natives of Africa, a foreign country, with intent them to transport, and sell and dispose of, as slaves, in some other foreign country. And afterwards said vessel, pursuant to the previous advice and direction of said John Smith, did sail from said coast of Africa, having on board more than one hundred pf the said inhabitants and natives of Africa, destined to the port of Havanna, a foreign port and place in the dominions of the King of Spain, at which port said vessel arrived before the first day of June, 1806. And the said United States further declare, that after the first day of April, and before the 30th day of June, in the year last mentioned, and within two years next before the date of this writ, by the previous advice and direction of said John Smith, and for his use and benefit, at Havanna aforesaid, one hundred of said inhabitants and natives of Africa, so as aforesaid, by said John Smith, caused to be taken and transported to the place last mentioned, were there sold and disposed of as slaves, and at a price not less than one hundred dollars for each of said Africans, amounting in the whole to ten thousand dollars; against the form, force and. effect of the several acta of the congress of the United States in such cases made, and then in force.” The declaration then concluded thus : “ By means whereof, and by force of the statutes aforesaid, the $»id John. Smith hath forfeited and become liable to pay a sum of money equal to double the value of the interest which he then had in said slaves so transported in said brig Heroine, whereof said John Smith was sole owner* front jdffiea to Savanna aforesaid, and there sold as aforesaid, for the benefit of said John Smit/l, amounting to twenty thousand dollars.”
    
      Sept, 1809.
    
      The defehdant pleaded not^guilty.
    
    On the trial, the District Attorney, {Huntington,') fot the United States, offered William. Mills, one of the crew of the brig Heroine, as a witness to prove that the defendant was owner of the slaves mentioned in the declaration.
    
      Daggett, of counsel for the defendant,
    objected to his being sworn, on the ground that his testimony would implicate himself, and subject him to finé and imprisonment. The second section of the act of May 10, 1800, declares “ that it shall be unlawful for any citizen of the United States, or other person residing therein, to serve on board any vessel employed or made use of in the transportation or carrying of slaves from one foreign country or place to anotherand provides, that “ any such citizen, or other person, voluntarily serving aS aforesaid, shall be liable to be indicted therefor, and on conviction thereof, shall be liable to a fine not exceeding two thousand dollars, and be imprisoned not exceeding two years.” A prosecution has already been commenced against the witness, for serving on board the defendant’s Vessel during the voyage in question. Any Tacts within the knowledge of this witness, which will subject the defehdant, will also show that the witness is guilty.
    The District-Attorney replied, that he had entered a nolle firos-eyui on the prosecution against the witness; and the time for instituting anew prosecution has elapsed, the offence having been committed more than two years ago. Further, the only point to which we propose to direct the testimony of the witness is, that John Smith was owner of certain slaves. To establish that point will not implicate the witness. Nothing is more common in criminal trials, than to call upon a fiarticefis criminis to testify.
    
      ín an action of debt to re* cover the penalty given by the act of congress of JMay 10, 1800, for transporting slaves from one foreign, port or place to another, h parliceps cH■> minis, after the expiration of two years from the commission of the offence, without any prosecution against him being- commenced, maybe compelled to testify against the defendant, though such witness has. been out of he jurisdiction of the United States a considerable part of the two years. A Jleeingfrom justice within the proviso to the United States statute of limitations fop cpimes, does not nc. cessari/y ini. popt a fleeing from proseen tion fepgtm.
    
      
      ⅜) S¿at. U. 8. v. 5. p. 167 — 170. The ]st section of that act is as follows; “ That it shall be unlawful for any citizen of the tfnited States» or other person residing within the United States, directly or indirectly, to hold or have any right or property in any vessel employed or made use of in the transportation or carrying of slaves, from one foreign country, or place» to another, aiid any right or property belonging, as aforesaid, shall he forfeited» and may be libelled and condemned for the use of the person who shall sue for the same; and such person transgressing the prohibition aforesaid, shall also forfeit and pay a sum of money equal to double the value of the right or property in such vessel, which he held as aforesaid ; and shall also forfeit a sum of money equal to double the value of the interest which he may have had in the slaves, which at any tiipe have been transported or carried in such vessel, after the passing of this act, and against the form thereof.”
    
    
      
      
        Stitt. U. S. v. l. p. 188.
    
   Edwards, J.

That is inhere the witness does not object. But here the witness does object.

The District-Attorney observed further, that the witness came here voluntarily, and agreed to testify. He ought not now to surprise us by refusing to testify. It Would be hard on the part of the United States, if he were permitted to conduct in this manner.

Edwards, J. That is of no consequence. The only question is, whether he can be compelled to testify to what may implicate himself, because two years have elapsed since the transaction.

The District-Attorney then insisted, that the lapse of two years after the offence was committed without any prosecution, is unquestionably a complete bar; and cited Adams, q. t., v. Wood, 2 Cranch, 336. The witness is now as secure from the penalties of the statute, as though he had never committed the offence,

Daggett, for the defepdant. The United Slates statute of limitations has a proviso expressly excepting persons fleeing from justice from its operation. It appears that this witness has béen out of the United States a'considerable part of the time since the transaction took place; [This had been previously stated, and admitted by the counsel for the United States.^ Now, a fleeing from justice is nothing more than avoidance, a going out of the jurisdiction to avoid prosecution. So the con-? struction has been as to fugitives from justice from one state into another. But at any rate, the witness will be jeopardized by testifying; and this is sufficient to excuse him. If prosecuted for this offence, he must plead the statute of limitations. The attorney for the United, States may then reply over a fleeing from justice. This he will attempt to support, by showing that the witness has actually been without the jurisdiction of the United States. Will not this jeopardize him ? The statute of limitations never purges the offence. Nothing but a pardon will afford the offender complete security. The case of Bollman, on Burr's Trial, was referred to: The question there was, whether Bollman was bound to accept the pardon. But without the pardon, jt was admitted that he could not be called upon to testify,

Peters, for the United States, contended, that a fleeing from justice within the proviso of the statute, must be a fleeing from a prosecution begun.

Edwards, J. That point was decided otherwise by Cfi. J. Ellsworth, in the case of Isaac Williams. He said, it tpade no difference whether a prosecution was commenced, or not.

Goodrich stated, that in Williams's Case, the offender had simply been in a foreign ’country; and it was considered as a fleeing from justice.

Edwards, J. I am prepared to give my opinion on the point; but if the jury should find a verdict a*nst the defendant, I will give him an opportunity to move for a new trial, and have the opinion of Judge Li-oingti Hon" appears to me, that the witness is prima fatiei protected from prosecution, by the statute of limitations! answer comes from him. He says he ⅛ not pro* tecled, because he has fled from justice. But he ought not to make his fleeing from justice (his own crime) a ground for withholding his testimony. At the same time, the court will take care that the witness be not entrapped. The attorney will not be allowed to say now that the prosecution is barred, and thus obtain his testimony; and afterwards bring forward a prosecution, and say that it is not barred, because the witness has fled from jus*-tice. The witness must testify.

Where the ^magistrate taking a depo-amoti, stated it to have \T"his’‘pre-⅛⅛ and it sab-Radie™ reduced to writing by the de* ponent ten days before, at l>laeeiIelwhen the magistrate 8ent;I 0¡t was deposition was inadmissible: ¡States courts,

In the course of the trial, the District-Attorney offered the deposition of Thaddeus R. Austin, It appeared that tyie substance of this deposition had been copied by the deponent, from another paper which he had written at Suffield, about ten days before. The certificate of the magistrate who took the deposition, was as follows s « Personally appeared the above-named Thaddeus R. Austin, of Suffield, in the state of Connecticut, and being duly cautioned, made oath to the truth of the above deposition by him subscribed, and written in my presence,'* &C.

Daggett objected to the admission of this deposition, on the ground that it was not taken as the act of congres? requires. The 30th section of the Judiciary Act (vol. P- 690 provides, that every person deposing shall be carefully examined, and cautioned, and sworn, or affirmed to testify the whole truth, and shall subscribe the testimony by him or her given, after the same shall be reduced to writing, which shall be done only by the magistrate taking the deposition, or by the deponent in his presence. This testimony was not reduced to writing fcy tftc joaagjstrate taking the deposition, nor by the 4e* ponept in his presence.

The offence of congress1!!!' ^10> )!'®< transporting one^foreigw co,untr!' to »n-other, with a view to their being sold as slaves; and the °?enee l* when the ves-the *^*ce th9ether°nihe slaves are sold or not.

Peters, contra.

: Edwards, J. The provisions of the act of congress relative to the taking of depositions, are very important, and ought to be adhered to strictly. This deposition cannot be read. The question is not a new one. In England, the lord chancellor has refused to admit depositions taken as this was.

The transportation of the slaves from Africa to Ha-■vanna, as stated in the declaration, was clearly proved by. the evidence adduced on the part of the United States. It appeared that the vessel arrived at Havanna more than two years before the commencement of the suit; but it did not appear that the slaves were actually sold . . . 1 until some time within the two years.

Goodrich and Daggett contended, that the offence charged in this declaration is complete when the vessel arrives; and her arrival takes place when she is moored, It is not necessary that the slaves should be landed, or Sold.

The District Attorney and Peters, contra, insisted, that in order to constitute the, offence in question, the persons transported must be sold as slaves ; if they are transported for the purpose of colonization, or any other purpose than to be sold as slaves, it is no offence. But at any rate, they must be landed before the offence is cothplete. It does not appear that these slaves were landed more than two years before the commencement of the suit. If the defendant relies upon the statute of limitations for his protection, it belongs to him tcMhow this, which he has not done.

gCT” In the other causes tried at this term, no points oí law were decided of sufficient importance to render it expedient to report them.

The District Attorney (Huntington) and Peters, for the United States.

Goodrich, Daggett, Mosely and Dwight, for the defend* ant*

Goodrich, in reply, observed, that it clearly belonged to the United States to prove the offence committed within two years from the commencement of the suit otherwise there could be no recovery. There is a manifest distinction between this case and that where a dpbt is admitted by the defendant, and claimed to be barred by the statute of limitations- '

Edwards, J. That part of the case which rests upon the statute of limitations is extremely clear. My opinion is, and so I shall charge the jury, that the offence consists in transporting persons from one foreign country to another, with a view to their being sold as slaves; and as soon as the vessel arrives at the place of destina-, tion, the offence is completed, whether the slaves are sold or not. It is incumbent on the attorney for the United States to show an offence committed within two years ; and as this has not been done, there must be a verdict for the defendant.

The jury found accordingly. 
      
      if) The latter clause of the S2d section of the act of congress qf •Aprils0, 1790, (vol. 1. p. 114.) is as follows: “ Nor shall any person be prosecuted, tried or punished for any offence not capital, nor for any fine or forfeiture under any penal statute, unless the indictment or information for the same shall be found or instituted within two years from the time of committing the offence, or incurring the fine or forfeiture aforesaid.” Then follows this proviso; “ Provided that nothing herein contained, shall extend to any person or persons fleeing, from justice'9
      
     