I think, then, it cannot be doubted, that the Patriot, being stated in the claim to have belonged to a British subject, comes within the third section of the act. This would be my opinion, were it a case of the first impression. But the point is, I think, decided in The Penobscot, 7 Cranch, 356, 3 L. Ed. 369.

2d. The second point made for the claimants is, that the Nonintercourse Act of 1809, was not re-enacted by the Act of March 2, 1811, so far as respected British vessels. Although the third section of that act is expressly re-enacted, yet its re-enactment is limited. It is to be carried into effect, "against Great Britain, her colonies, and dependencies." So much of the act, then, as relates merely to British vessels, has been, it is said, permitted to expire. This strict exposi tion of the words is the more to be insisted on, because the law is highly penal.

Let this argument be examined.

The original act respected equally the vessels of France and Britain, and articles of their growth, produce, or manufacture. Its object was to interdict the entrance into the waters of the United States, to the vessels of both nations, and to forbid all commercial intercourse with either of them. The 1st and 2d sections of the act, relate solely to national ships. The 3d section is confined to vessels owned, wholly, or in part, by the subjects of Great Britain, or of France. The 4th, 5th, and other sections, relate to the dominions, etc., of the two countries, and to articles which are the growth, produce, or manufacture of either. They also contain provisions, calculated to secure the exclusion of those articles from the United States.

After making a painful experiment of the restrictive system against both nations, the law was permitted to expire, and the policy of the United States was in some degree varied. An act was passed on the 1st of May, 1810, promising, that if either beligerent would so revoke or modify its edicts, that they should cease to violate the neutral commerce of the United States, the sections of the nonintercourse law, which have been recapitulated, should, three months thereafter, be "revived, and have full force and effect, so far as relates to the dominions, colonies, and dependencies, and to the articles, the growth, produce, or manufacture of the dominions, colonies, and dependencies, of the nation refusing or neglecting to revoke, or modify, her edicts, in the manner aforesaid."

The President having issued his proclamation, on the 2d of November, 1810, announcing, as a fact, that the decrees of France were revoked, as required by the act of the 1st of May preceding, Congress, on the 2d of March, 1811, passed the act under which the Patriot and her cargo have been condemned. The case depends on the question, whether the 3d section is re-enacted so far as respects British vessels.

The language of the law, certainly, does not import a complete reenactment of the whole of those sections. They are in terms reenacted, "against Great Britain, her colonies, and dependencies." The question, whether these words comprehend the interdiction of our waters, to vessels owned by British subjects, is undoubtedly open for argument, and for consideration. In deciding it, we must search by legitimate means for the intention of the legislature, and be guided by that intention. Was it the intention of the legislature to revive the whole act, so far as it respected Great Britain, with, perhaps, the exception of its territorial operation, which may be created by omitting its provision respecting her possessions? Or only to revive those parts of the act, which relate exclusively to those breaches of it, which are connected with territory? Such, for example, as importing a cargo from "Great Britain, her colonies, or dependencies"?

That the act of 1809 is not revived generally, is satisfactorily accounted for, when we recollect that it was originally directed against both Great Britain and France, and that the legislature designed to re-enact it against Great Britain only. If we advert to this fact, and recollect the history of the times, we shall be but little inclined to the opinion, that Congress could have intended to leave our ports open to British vessels, when all commercial intercourse between the two countries was prohibited. It seems impossible to assign a motive for this particular relaxation. The policy of the United States, was directed with at least as much earnestness against the navigation, as against the manufactures, of Great Britain. But what seems conclusive on this point is, that the section is expressly revived, and yet contains not one word which relates to the territories of Great Britain, its colonies, or dependencies. The section is limited to ships owned wholly or in part by British subjects. Consequently, it applies to those vessels or to nothing.

The legislature might have revived the 3d section only. Had this been done, could it have been said that it was not revived as to vessels, because it was said to be revived against Great Britain, her colonies, and dependencies? Not a syllable in the section relates to colonies and dependencies; and not a syllable to Great Britain, except the prohibition to her vessels. To have said in that case, that the section was not revived as to vessels, would have been to ascribe to the legislature a declaration, that a particular section should be revived in a manner to have no effect whatever; or to make a law, with an exception co-extensive with its whole enactment. Such a construction must be totally inadmissible. The actual case is stronger than that supposed, because, in the actual case, other sections are revived, ́ which might suggest a propriety of adding the words "colonies and dominions" to Great Britain.

It cannot, I think, be necessary to add anything to this argu

ment.

An argument which produces the only serious doubt which can arise in this case, remains to be noticed. It is, that the 3d section of the Nonintercourse Act was repealed by the declaration of war.

* *

I have considered this case with no disposition favourable to the condemnation of this cargo. But, according to the view I have taken of the subject, the cargo is liable to forfeiture, in consequence of being in a British vessel, which has arrived within the limits of the United States, while the nonintercourse law was in force. I shall not regret it, if a higher tribunal shall be of a different opinion.

1

The sentence of the District Court is affirmed with costs.8

3 In The Sally, 8 Cranch, 382, 384, 3 L. Ed. 597 (1814) Mr. Justice Story, speaking for the Supreme Court, said:

"But a claim is interposed by the United States, claiming a priority of right to the property in question, upon the ground of an antecedent forfeiture to the United States, by a violation of the Nonintercourse Act (of March 1, 1809, § 5, 2 U. S. Stat. 529), the goods having been put on board at a British port, with an intent to import the same into the United States. We are all of opinion, that this claim ought not to prevail. The municipal forfeiture under the Nonintercourse Act, was absorbed in the more general operation of the law of war. The property of an enemy seems hardly to be within the purview of mere municipal regulations, but is confiscable under the jus gentium."

CHAPTER II

EMBARGO

SECTION 1.-NONHOSTILE

THE WILLIAM KING.

(Supreme Court of the United States, 1817. 2 Wheat. 148, 4 L. Ed. 206.)* Appeal from the Circuit Court for the district of New York. A libel was filed against this vessel, in the District Court of New York, March, 1809, for a breach of the act of the 22d of December, 1807, laying an embargo, and the several acts supplementary thereto, alleging that she proceeded from Baltimore, without any clearance or permit, bound on a voyage to Exuma, one of the Bahama islands, where she took in a cargo of 6,000 bushels of salt, with which she returned to New York.

The claimants admitted the fact of going to Exuma, and bringing away the salt, but alleged that it was from necessity; that the brig was. regularly bound to Boston, but, being captured soon after she left Hampton Roads, by a British privateer, was sent to Jamaica, where she sold the cargo of flour which she had on board, the government of that colony not allowing it to be brought off; that she then went to Exuma.

The testimony in the case exhibited the following summary: About the middle of October, 1808, the vessel arrived at Baltimore from Boston. At Baltimore, she took on board a cargo of upwards of 1,600 barrels of flour, and sailed again, ostensibly for Boston, about the first of November. On reaching Hampton Roads, she stopped a few days, being, as was asserted, wind-bound. While there, a British privateer, of ten guns and twelve men, called the Ino, arrived in the Roads. On the eighth of the month, the brig put to sea, the Ino following her. On the afternoon of the same day, the Ino captured her, within ten leagues of the shore, putting a prize-master and one man on board; the vessels then, proceeded to the West Indies. During the voyage, no attempt was made by the crew either to retake the brig or to escape, though favorable opportunities were not wanting; her crew consisted of nine persons. After a short separation from the privateer, the brig arrived off St. Nicholas Mole; here the privateer joined her, and thence the two went to Kingston. No prize proceedings were instituted against the brig; but, on the contrary, the supposed captors

relinquished all claim to their prize, on reaching Kingston. From Kingston, she went to Exuma, as above stated. The District Court, on the hearing, pronounced a sentence of condemnation; a decree of affirmance, pro forma, was entered in the Circuit Court, from which the cause was brought, by appeal, to this court.

JOHNSON, Justice, delivered the opinion of the court.1

This case comes up on appeal from the Circuit Court of New York. The vessel is the same which makes her appearance in the case of The Short Staple, 9 Cranch, 55, 3 L. Ed. 655, decided in this court at February term, 1815; and it has been contended, that the acquittal in that case is conclusive upon this. But we think otherwise. It might with more propriety be contended, that had the hearing of this cause come on together with that of The Short Staple, the latter would have found much more difficulty in escaping. As it was, the division of the court, and the acknowledgment of the judge who delivered the opinion, show that the vessel in that case was "hardly saved." In the present cause, there is very material evidence, which did not appear in, and could not affect, the former. We shall, therefore, dispose of this case altogether upon the evidence that is peculiar to it.

It will be recollected, that this vessel, as well as the Short Staple, were libeled for a violation of the Embargo Act of the 22d of December, 1807, and the supplementary act of the 9th of January, 1808, the former of which enacts, "that an embargo shall be laid on all ships and vessels in the ports of the United States, bound on a foreign voyage," and the latter forfeits the vessel that shall proceed to any foreign port or place, "contrary to the provisions of this act, or of the act to which this is a supplement." As the majority of the court were of opinion that no offence was committed in the case of The Short Staple, it was unnecessary to express any opinion on the application of the law. They, therefore, waived it.

2

But, in this case, it becomes necessary to lay down the following principles: There can be no doubt, that if the William King was carried off to Jamaica, by actual force, it was an act which wanted the concurrence of the will, and therefore innocent. But whatever is done in fraud of a law, is done in violation of it; and if a vessel, with an original intention to go to a foreign port, complied with the requisition necessary to obtain a clearance on a voyage coastwise, this is but the device by which she eludes the force that would otherwise have prevented her departure from the port.

Was, then, the sailing to a foreign port a prohibited act, under the embargo law, to a registered or sea-letter vessel? If so, the commission of such an act was a cause of forfeiture under the Act of January 9, 1808. And here, the only doubt is, whether the words, "an embargo shall be laid," operate any further than to impose a duty upon

1 Parts of the opinion are omitted.

Lee v. Lee, 8 Pet. 44, 8 L. Ed. 860 (1834).