
    THE SLOOP ACTIVE v. THE UNITED STATES.
    'Present*... JJll the judges.
    
    Thedepatture from Vtheel wharf of á port, and pro» andean hait'tC? therefrom not a deparport ^within110 the meaning of tfie ’3d ‘ section of the supplementary embargo act of ms^f 9the vessel had not outUof 4e port hefore seizure, fUlfn^vess feiture [under rftheaotCof°n the 18thofFe. forenróiling3¿ licensing visladenwhh^’ gotSa with intent to carry without & [i, csDse therefor, gorás” are* wholly of do. ^manufacture and not dnty8 But”y 6i# --go i3 Rabie to noi^Mong to the master, own.er> °h,f vessel.
    
      THIS was an appeal from the sentence,of the Circuit Court of the District of Connecticut which af-. Armed that of the District Court condemning the sloop Jlctive and Cargo-
    The libel stated that the sloop 'Active was an Arnerican vessel duly enrolled and licensed for the cod-iishery the sth of July, ±808, and had given the bond required tó he given by such vessels under the several ac^s °A Congress laying and enforcing the embargo | and had a permit to depart and be employed in the cod figheiT.
    That in the night between the 4th and 5th of July, 180S, at the port of New London,'there was secretly and unlawfully laden on board her, a cargo consisting barrels of beef, fish, butter, &c., without the knowledge and not under the inspection óf a revenue officer, indent unlawfully to proceed with the vessel and some place without the. port, harbor and district of New London. That the vessel so laden, left *ier place a* the wharf in the port of New London, in the night, without the knowledge of any custom house 9®cei> without a license or permit, and without any custom house papers, and departed therefrom and out °* ^lp said Por^ and proceeded on her said intended unlawful voyage to some place to the cUstom-hoiise officers unknown. That the cargo was worth more' than dollars. That the vessel was unlawfully employed in trade other than that for which she was licensed.
    The facts of the case appeared to be as stated in the ■ libel, except that the vessel was seized in the act of leaving.the port, hut before she had gone out of the pprtj and that Gates, the owner of the greater part of die, cargo, was neither master, owner ñor mariner of the vessel.
    
      Bitkin and Dana; for .the Appellants.
    Three questions arise iiNhis cause.
    1. Whether the vessel and cargo were forfeited being laden, contrary to the 2d section of the act of April, 1808 — vol. 9, p. 146, which declares that “ “ vessel shall receive a clearance, unless the lading “ shall'be made hereafter under the inspection of the 4f proper revenue officers, subject to the same restnc- “ tions, regulations, penalties and forfeitures, as are* “ provided by law for the inspection of goods, wares “ and merchandize imported,” &c.
    .2. Whether she departed from a port of the. United States without a clearance or permit,, contrary to the 3d section of the act of .the 9th of January, 1808 — 'vol. 9, p. 11.
    3. Whether she was employed in any other trade than that for which she was licensed, contrary to the 32<1 section of the act of February 18th, 1'. , for in-rolling and licensing vessels — vol. 2, p. 193.
    1. Upon the first question, nothing will be added to the arguments urged in the case of the Paulina, f Ante p. 55.J
    
    The only penalty, under that act, for lading without the inspection of a revenue officer, is the denial of a clearance.
    There was no law then in force to punish the intent to violate the embargo. The áct of January 9th, 1809, (vol. 9, ¶. 184J first made it penal to lade a vessel with that intent.
    
    The libel does r . charge the intent to be to export the cargo to any foreign place, which was the evil intended to be guarded against by all those laws. It was not unlawful to transport domestic goods from one district to another in the United States. She had given bond according to the provisions of the act of January 9th, 1808 — (vol. 9, p. 11) not to proceed to any foreign port or place.
    
      . The, 5tlr section of tlie act. of January 9th, 1809, (commonly called the enforcing _&ct) first made the vessel liable to forfeiture for lading without a permit. This is a legislative confession that the. law was not so before. It sanctions our construction of the act of the 25th of ■April, 180,8.
    2. It appears from the evidence that the vessel was seized within the port, about a mile and an half from the wharf.
    She did not « depart from” the port, and is therefore not liable to forfeiture iinder the 3d section of the act pf January 9th, 1808.
    3. Was, the Active engaged in any trade-[other than that for Which she was licensed] within the meaning of the enrolling act?
    By the 32d section of that act, vol.~2, p. 193, it is de» -dared, «that'if any licensed vessel shall be employed « iii any other trade than that for which she is licensed, « such vessel* with her tackle, apparel arid furniture, if arid the cargo found on board her, shall be forfeited.?
    The object of this provision evidently was to prevent smuggling, and other frauds, upon the revenue. This is evident from various expressions and provisions in other parts of the act.
    Thus^the S3d section provides that if the cargo belong to a person other than the master, owner, or mariners of the vessel so trading, and if the duties on the cargo have been paid or secured according to law, such cargo shall not be forfeited.
    ' Tin? reason is, that the revenue cannot he defrauded if the duties have been paid. If then this vessel had been laden with foreign goods, and the duties had been paid,, they would not have been forfeited; a fortiori, would they be exempt from forfeiture, being American produce and not liable to any duty.
    So* in the 4th section of the same act, vol.. 2,. p. 171, bond is to be given to pay to the United States 1,000 dollars in cáse it shall appear that the vessel has been employed id any trade, whereby the revenue of the United States has leen -defrauded, during the time the license was in force; and the master is to take an oath that she shall not be employed in any. trade' whereby the revenue may be defrauded.
    By the 5th section, it is declared that no license shall be in force for carrying on any Other business or employment than that for which the vessel is specially licensed j and by the 6th section, every vessel' found trading. between district and district, or between different places i» the same district, without being enrolled and licensed, if laden with goods, the growth or manufacture of the United States only, (distilled spirits excepted) or in ballast, shall pay foreign fees and tonnage, but if she has any articles of foreign growth or manufacture, or distilled spirits, the vessel and cargo shall be forfeited.
    • The license which the sloop Acñve had for the tod fishery not being m force for the coasting trade,' she was found trading between different places in the same district without a license, and therefore was within the 6th section of 'the actj and being laden, only with do-, mestic produce, was only liable to pay foreign fees and' tonnage.
    By the 8th sectioñ, if a vessel^ enrolled-and licensed, shall proceed on a foreign voyage, without giving up her enrolment and license, and being registered, such •vessel, and the goods so imported therein, shall be liable to-forfeiture. Under this section the vessel must actually. make the foreign voyage and import goods before she can be forfeited.
    The 12th section authorizes a change of. the master, and requires the new master, or the owner, to make oath that the Vessel shall not, while the license continues in force, be employed in any manner whereby the reveme may be defrauded,
    
    By the 21st section, a licensed fishing vessel trading to a foreign port without a license or permit therefor, is only liable to forfeiture. in case she be found within three leagues of the coast with" foreign goods on board to the value of 500 dollars. Domestic goods found on board are not ..Hablé to forfeiture.. It cánnot. therefore be supposed that the legislature intended to redder, such a vessel liable to forfeiture, for carrying domestic goods* upon which no duties were payable, from one part of a-port to another.
    The act of taking on board certain domestic goods and carrying them from ofte part of the port to another is not 3tich a trade as was contemplated in the 3&d section of,the act. Such a construction would be contrary to the spirit of the whole act.
    All that can be said is, that she took in 'the goods with intent to trade; hut this is ndt trading. Such. an intent is not punishable.
    Damas, Attorney of the Uniied States for the-District of Pennsylvdnia, and Pinkney, Attorney General of the United States — for Appellees.
    
    The parties engaged in this transaction were conscious that it was an unlawful business. This vessel was confined by law to the cod fishery. She could ndt lawfully carry on the coasting trader
    She was laden in the night, and was towing out of the hai’bor when she was seized. Gates* who claims the cargo, appears to be master for that voyage — at least he had the use of the vessel, and was on board and there was, no other master.
    ,1. The first énquiry is, whether this vessel is liable to forfeiture undér the embargo law,' and
    2. Whether she id liable under the enrolling and licensing act.
    1. She departed from a port of the United States without a clearance or permit, contrary to the act of January 9th, 1808 — vol. 9, p. 11. G 3.
    To depart frdm a port, does not mean to go out of the port. She departed from the ■ port when she set sail to leave the port — when she broke ground. This is the construction always given to. policies, when the insurance is from, (not at and from) a certain port.
    
      ■2. The protection of the revenue was. not the only object of the prohibition to use the license for another purpose than that for which it was given, it was raaterial to know in what kind of trade, every vessel waá engaged. All the sections which have been cited show that it was the intention of the legislature to prohibit the vessel from engaging in any other employment than that for which she was licensed, although such employment should not in any manner affect the revenue. It is a plain and express prohibition under the penalty of forfeiture of vessel and cargo — and it is unnecessary to enquire into the motives of the legislature.
    She was engaged in the business of carrying goods from one place to another — and this was pn employment or trade for which she had no license. She was as much engaged in trade at the inception as she would have been at the consummation of the vbyage. It was not necessary that she should have finished the voyage, or have been engaged in buying and selling.
    
      February 26.
   Marshaix, Chief Justice,

delivered the opinion of the court as follows :

The sloop Active, a vessel licensed for the fishing trade, was laden, in the night of the 4th of July in the year 1808, in the port of New London, and was seized by the revenue officer, after having left the wharf without a clearance, under circumstances which justify a belief that she was about to proceed on a foreign voyage in violation' of the acts laying an embargo. , The vessel and cargo were libelled as having been forfeited tinder the laws of, the United States, and were both condemned in the District Court, which sentence was affirmed in the Circuit Court.

This sentence is supported on the part of the United States tinder the 3d section of the supplementary act, to the act laying an embargo, and the 32d section of the act for enrolling and licensing ships or vessels to be employed in the coasting trade and fisheries.

This court is of opinion* that however criminal the intentions ’of those on boárd the Active might have. been, neither the vessel nor cargo were forfeited under the 3d section- of the « act supplementary- to the act, en~ an act laying an embargo on all ships and vessels in the ports and harbors of the United States,” because she appears to have been seized in port; and a depar-' ture from port without a clearance was necessary - to consummate the offence.

The case is undoubtedly 'within the words of the 32(1 section of the enrolling and licensing act. The Active was a licensed vessel employed in a trade' other than that for which she was licensed.

The argument that this act was intended merely to secure the revpnue, and that its provisions do not contemplate a vessel laden .with domestic produce not subject to duty, has been urged..with great force and certainly derives much strength from the various sections of the act which have been quoted. But the words of the 32d section are explicit, and although other preceding sections furnish .much reason for believing that a forfeiture in a case where the revenue could not be defrauded, might not be contemplated by the legislature, yet they are not so expressed as to control the 32d section. . The Active and her cargo, therefore, must be considered as' forfeited, except so far as they come within the 33d section. ■

. That section.is in these words> “Provided nevertheless, and be it further enacted, That in all cases “ where the whole or any part of the lading, or cargo “ on board, any ship or vessel, shall belong, bona Jide, “ to any person or persons other than the master, oiVn- “ er, or mariners, of such ship or vessel, and upon “ which the duties shall have been previously paid or *< secured, according to law, shall he. exempted from « any forfeiture under this aet, any thing therein con- “ tabled to the contrary notwithstanding.”

In this casefhe libel states^ thaj Billings and-Morgan were owners of the vessel, and a certain ■; Gates owner of the cargo A claim is filed by Billings and Morgan for tiie vessel and part of the cargo, and by. Oates .for the residue of the cargo, ft appears^ then, both fronrthe libel and claim, that a part of the cargo, did “ belong, bona fide, to á person. other than the master, owner or mariners of the ship ..or vessel.” This part of the cargo comes completely within that part of the description which relates to .the ownership of the property. But the goods on board being liable to no duty, the duties could not. have been previously paid or secured..

The court considers this section as manifesting a-clear intention in the legislature to exempt from forfeiture a cargo not belonging to the owner, master or mariners, provided that cargo was not liable to duties. Whether this condition was produced by, a previous payment of duties, or by a perfect exemption from duties, must he immaterial. Duties cannot be paid or secured, according to law, on goods not liable, by law, to duty. The legislature must be understood, when saying upon which the duties have been previously paid or secured according to law,3’ to mean, upon which the duties, if any, have been nreyiously paid,” &c. '

; It is the opinion of the court, that the sentence of the Circuit Court be reversed as to so much of the cargo of the sloop Active as is claimed as the property of . Oates, and be affirmed as to the vessel ,and the residue of the cargo.

And it is directed to be certified that there was probable cause of seizure. 
      
       Judge Todd v/aa-absent in consequence of indisposition.
     