This was an information filed by the Naval Officer of the port
of Philadelphia, against the ship Anna, lately arrived from Bristol
upon the discovery of Peter Cooper, that forty two hampers of
porter, part of her cargo, had been landed, without being first
duly entered at the Collector's office, conformably to a law of
this State, passed the fifteenth day of March, one thousand seven
hundred and eighty seven, which enacts, among other things, 'That
every vessel or boat, from which any goods, wares, or merchandize,
shall be unladed before due entry thereof, at the office of the
Collector, of the port of Philadelphia, and every carriage into
which any such goods shall be first put or loaded, after removal
from such vessel or boat, together with the horse, horses, or
cattle drawing the said carriage at the time of seizure, shall be
forfeited, and seized by the Collector last aforesaid, or the Naval
Officer, or any of his or their deputies, &c.' It appeared in
evidence to the Jury, upon the part of the informants, that the
Captain of the Anna, had only exhibited twenty hampers of porter in
his official manifest, whereas a much greater quantity was found on
board the ship, besides forty two hampers landed and deposited in
the store of one Smith, and twenty four hampers actually delivered
on shore to the captain himself, agreeably to his orders given for
that purpose in the store of the claimants. It was proved,
likewise, that a considerable number of hampers of porter, had,
during the passage, been removed from the
Page 1 U.S.
197, 198
hold, and stowed away in the state-rooms, filling from the floor
to the ceiling, so that any person who was in the least attentive,
must have observed them upon entering the cabin; and it appeared,
that the owners and their agent had been several times on board
before the seizure, and before the removal of the hampers from that
situation. The customary privilege of a captain in the Bristol
trade was described to be limited to one ton, and the gross number
of the hampers of porter discovered by the informants, was computed
to amount to a little more than eighteen tons. The mate, who, the
claimants alledged was the delinquent on this occasion, had been
retained in their service, on board the ship, for two or three
weeks after the seizure; but he had lately absconded, under the
apprehension of a prosecution for the penalty of L. 500.
For the claimants, it was given in evidence by a passenger, that
he was told by the mate of the Anna (who it seems was a man of some
property) that he had clandestinely shipped a quantity of porter,
which he intended to dispose of here, without paying the freight to
the owners, or the duties to the state, and which he had an
opportunity of doing, even without the captain's knowledge, as it
was the custom for mates to superintend the loading and unloading
of the vessel. The witness had likewise during the passage,
purchased about a dozen of porter from the mate, who then
solicitously requested that the circumstance might not be
communicated to the captain; and who (as several witnesses proved)
after his arrival at Philadelphia, had treated with several persons
for the sale of porter, repeatedly informing them that it was his
private adventure, and that the owners of the vessel had not a
bottle on board. When the hampers were removed at sea, from the
hold into the cabin, the captain, who had long been indisposed, was
then particularly sick, owing to his exertions during a storm that
had happened the preceding night; and the father of one of the
owners who had taken charge of the vessel upon her arrival,
affirmed that he did not, while in the cabin, observe the hampers
that were stowed away in the staterooms; that he had been very
cautious in directing the manifest to be made out according to the
invoices and bills of lading, and that he had personally enjoined
all the officers of the ship, not to land a single article without
a regular permit from the collector. It was in proof, likewise,
that a hamper of porter which the sailors were hoisting out of the
hold, was hastily let down again upon the appearance of one of the
owners.
The evidence on both sides being stated, the counsel for the
claimants argued, that the present question was of the greatest
importance to the commercial interests of the country, as it was
now to be determined, whether an innocent owner of a ship, was
responsible for all the unwarrantable actions of her officers and
crew? A rigid construction of the law, upon which this prosecution
is grounded, cannot fail indeed, to counteract the object of the
legislature in framing it: as the attempt to secure our revenues by
indiscriminately
Page 1 U.S.
197, 199
inflicting upon the unoffending merchant, the penalties
resulting from the illicit practices of his captain, will so
multiply the risques of commerce, that the hope of gain, and the
ardor of enterprise must cease to operate, and in the eventual loss
of trade, will be involved the total dissolution of the impost
system. We should, therefore, be particularly cautious what
principles we establish at this crisis of our commerce, and, in
imitation of the wise precedents transmitted to us by our
ancestors; we should so interpret the letter of the law, as to
render its operation reasonable and just, the source of punishment
to the guilty, but of certain acquital to the innocent. In the
present case it has been fully demonstrated that the claimants were
not interested in the commodity which has been surreptitiously
introduced into this city, and that so far from knowing and
consenting to the fraud, the utmost vigilance and circumspection
were exercised on their behalf to prevent it. The questions then,
to be now considered, may be fairly comprehended in an enquiry How
far the property of the owners is liable to confiscation for the
misconduct of their officers and crew; and whether, by a liberal
construction of the acts of assembly, the ship itself, under all
the circumstances appearing in evidence, is a subject of
forfeiture?
1st. It must be admitted as a general rule, that the master is
responsible for the agency of his servant, while acting in that
capacity; but, on the other hand, the moment he steps aside from
the line of his duty, this relative responsibility is at an end.
Thus, if a drayman in drawing a pipe of wine, staves it, his master
must certainly indemnify the owner to the value of the wine that is
lost; but if he leaves his dray, engages in a quarrel, and does an
injury to his antagonist, neither law nor justice will transfer the
damages to his master. So, likewise, if a farrier's journeyman
lames a horse in shoeing it, an action lies against the master, not
against the servant; but still in this, and in every similar
instance, the damage must be done while he is actually employed in
the master's service, otherwise the servant answers for his own
misbehaviour. It is, therefore, readily agreed by analogy to the
principles thus established, that the claimants are responsible for
the conduct of their officers, as far as it respects the business
of navigation, and the cargo of the ship; but in no other view can
the captain be considered as their agent, and consequently on no
other account can they be affected by his transactions. What then
is understood by the term cargo? The privileges allowed to the
mariners are not surely to be comprehended in the description; and
if a captain or a mate clandestinely exceeds his privilege, this
ought not in justice to be a ground for altering the case. The
meaning of the word cargo must therefore be restricted to such
goods, wares, and merchandize, as belong immediately to the owners
of the ship, or such as yield them a profit upon freight. Now, it
is in evidence, that the porter, landed from the Anna, did not
belong to the owners, and that they were not to receive any profit
upon the freight of that article: it was consequently no part
Page 1 U.S.
197, 200
of her cargo, it had not been entrusted by the claimants to the
superintendency of the captain or any other person on board; and
therefore it cannot be said, that the entry was neglected by 'them,
their agents, factors, or consignees,' which is expressly required
by an act of assembly , (and all the laws upon the subject must be
taken together) in order to work a forfeiture. If this
discrimination is disregarded, what vigilance, what precaution, can
protect the property of the most upright merchant from
confiscation? The tobacco pouch of a sailor, or the secret till of
a passenger's chest, (for, according to the construction urged by
the informants, the most trifling article is sufficient for their
purpose) may contain the instrument of ruin, and it would be in
vain to show, that the sufferer was ignorant of the fraud, and
diligent to prevent it, while ita lex scripta est furnishes the
ready, but harsh answer to the sincerity of his plea. With respect
to the cargo then, it is admitted, that, however improper the
captain's conduct may be, it will affect his owners, even without
their knowledge or connivance: but for anything beyond the cargo,
and such we alledge is the commodity which gives rise to the
present litigation, their knowledge is, at least, requisite, in
reason, justice, and in law too, before they can be condemned to
make atonement for his offences.
2ndly. It has been already said, that laws should be so
construed as to prevent an injury being done to the innocent; and
accordingly a multitude of cases are to be found in which the force
of the expression has been rejected, when evidently contrary to
reason and justice. There was a law, that those who in a storm
fortook the ship, should forfeit all property therein; and the ship
and lading should belong entirely to those who staid in it. In a
dangerous tempest all the mariners fortook the ship except only one
sick passenger, who, by reason of his disease, was unable to get
out and escape. By chance the ship came to port: the sick man kept
possession and claimed the benefit of the law. Now, here, all the
learned agree, that the sick man is not within the reason of the
law; for the reason of making it was, to give encouragement to such
as should venture their lives to save the vessel: but this is a
merit which he could never pretend to, who neither staid in the
ship upon that account, nor contributed any thing to its
preservation. Again, there was an edict which condemned any man to
death who should scale the walls of a certain city. One who had
discovered the approach of an enemy, got over the wall at night in
order to give the alarm. He was afterwards tried under this law,
and, though the case came manifestly within the words, his judges
pronounced, that it could not be the intention of the legislature
to punish an action that proceeded from such meritorious motives;
and therefore they acquitted him. But we have a memorable instance
of a more recent date, arising from an ordinance of Congress, which
declared, that any vessel conveying goods, &c. to the enemy,
should be subject to capture and condemnation. A Dutch vessel,
called 'the Golden
Page 1 U.S.
197, 201
Rose,' had been taken by a British cruizer, and while her
captors were carrying her into New York, she was retaken by an
American privateer. It was seriously contended upon that occasion,
that the Dutch vessel was a lawful prize according to the words of
the ordinance; but the court would not allow so extravagant a
claim, grafted upon the strict letter, to pervert the politic but
equitable meaning of the act of Congress. Let us then try whether
the acts of assembly, on the subject in discussion, may not by a
liberal interpretation, operate so as to relieve the claimants from
the injury with which they are threatened, and at the same time
promote the rational views of the legislature. In the section upon
which the informants proceed, it is said, 'that every vessel or
boat, from which any goods, wares, or merchandize shall be
unloaded, before due entry thereof, &c. shall be forfeited.'
Here then, if we understand the word thereof to refer to the entry
of the vessel, though it may produce a slight deviation from the
grammatical relation to the next immediate antecedent, we shall
certainly give a more reasonable and benevolent explanation to the
law, than by making the vessel liable to forfeiture for the
non-entry of the goods, wares, and merchandize. By the first
construction, a duty is imposed upon the owners, with which it is
in their power to comply; by the second they are exposed to loss
and ruin for the negligence or malversation of others, which they
could not foresee, and cannot prevent. The ship, and its contents,
are indeed distinct things in their nature, and may thus be
rendered (as they ought to be) distinctly responsible for the
management of those to whom they are entrusted. If the ship is not
entered, let the penalty fall there; and if the cargo is not
entered, let that be doomed to confiscation; but the idea of making
them reciprocally responsible is contrary to natural justice, and
must be incompatible with sound policy. No foreign merchant will
trust his vessel in our ports, and no citizen of Pennsylvania will
be hardy enough to engage in commerce upon such precarious terms.
But it is to be farther observed in this place, that the
legislature having changed the expression; we may justly infer that
the object of the law was likewise changed. In the preceeding act
relative to the impost, the words 'ship or vessel' are employed,
and not 'vessel or boat' as in the section above cited: it is
therefore to be presumed that it was only in contemplation to
destroy the petty fleets of smugglers which infest our creeks and
rivers; and as it is a maxim in law, that 'a statute treating of
things or persons of an inferior rank, cannot by any general words
be extended to those of a superior,' a ship, which in maritime
affairs is of the highest order, cannot be designated by the
subordinate title of a vessel.
There is, however, an additional and very forcible argument, to
show that the informants are not entitled to a verdict of
condemnation against the Anna, which is drawn from the regularity
of the entry that has been made. By the act of assembly, in which
this
Page 1 U.S.
197, 202
cause originates, no form of entry is prescribed; we must
therefore apply for instruction to the preceding impost law, which
directs 'the master of any ship or other vessel to exhibit to the
collector a true manifest, signed by him, of all the goods, wares,
and merchandize, imported in such ship or vessel;' and, after
sundry other regulations, calls upon him to make oath, 'that the
manifest faithfully states the respective goods, wares, and
merchandize therein mentioned, and that no other is laden or
imported in his vessel to the best of his knowledge or belief.' Has
any of the requisites to constitute a formal entry been neglected
by the master of the Anna? It appears that he has, in due season,
exhibited an official manifest, and that he has sworn to the truth
of its contents. This is surely all the law exacts, at least for
the discharge of the ship; and though the omission of any article
may be a cause for forfeiting that article (as it has already
happened with the porter upon this occasion) and may likewise be a
proper foundation for a charge of perjury, it cannot be extended to
divest the property of an owner who has not practised any deceit
himself, and who could not derive any advantage from the deceit
practised by another.
The Counsel for the informants, in reply to the preceding
arguments, stated: that the determination of this cause would
certainly produce consequences of an important nature, and either
render the act of assembly upon which it is founded, a dead letter,
or a productive instrument of public revenue. In governments
differently constituted, where regal pageantry, or military force,
can invite or compel respect and obedience to the law, little
danger is to be apprehended from the occasional indulgence of
learned men in their ingenious and novel comments upon the sense
and expressions of the legislature; but under a democratical
constitution such as ours, should the people acquire a habit of
yielding to logical subtleties and specious declamation, there is
no power to controul the evil that must ensue; the principles of
jurisprudence would become weak and fluctuating, and the virtue and
dignity of the commonwealth would be contaminated and eventually
destroyed. Instead therefore of considering how to escape from the
strong expression of the act before us, it is our duty to give it
the fullest operation that is necessary for suppressing the
mischief to which the legislative attention was originally
directed: and here we cordially embrace the position of our
antagonists, that the meaning of those who framed the law is the
best guide to direct us in carrying it into execution. What then
was the evil complained of at the time that this act was made' The
atrocious frauds committed upon the revenue. What was the remedy
provided' It could not be merely the forfeiture of the smuggled
goods, as the claimants insinuate, for that was imposed by an
antecedent law; but the truth is, that every other penalty having
proved ineffectual, this statute was enacted expressly to suppradd
the forfeiture of the vessel or boat from which the goods should be
clandestinely unladed. But here it is remarked, that the
Page 1 U.S.
197, 203
legislature has changed its language, and therefore it has
changed its object It would be idle indeed, to attempt by argument
to prove that a vessel is a term sufficiently comprehensive to
describe a ship but surely the sequel of the same law must remove
every doubt, when it enacts, that 'where forfeiture of the ship,
vessel, boat, &c. shall have been incurred, the naval-officer
and his deputies may seize the same.' Again, it is said, that by
dispensing with a rule in grammar, it will appear, that the neglect
to enter the vessel herself, is the sole circumstance which exposes
her to forfeiture. But if this construction is allowed, it follows,
that every boat, as well as every ship, must be duly entered at the
collector's office, for the sentence will then run in this way,
'every vessel or boat, which, before due entry thereof, shall
unlade, &c.' a position that is necessarily defeated by its own
absurdity. The claimants pursuing this curious system of defence,
have not only endeavoured to persuade us that the porter was no
part of the cargo, but likewise that one hundred and thirty-two
hampers (which was the gross quantity contained in the ship) make a
mere trifle, too insignificant to produce a forfeiture. To these
ideas how is it possible to oppose a serious refutation? The
understanding of mankind is not at this day to be deceived by a
distorted definition of words, nor will mere assertion be allowed
to overthrow the strong evidence of the senses. Confine the meaning
of the term cargo, according to their suggestion, to such goods,
wares, and merchandize as belong immediately to the owners, or such
as yield them a profit upon freight, and it may happen, that the
ship shall be deeply ladened, and yet it will be said, that she has
no cargo on board a paradox not readily to be comprehended! But
whence is derived this gigantic notion of things, through the
medium of which the quantity of eighteen tons is considered as a
trifle? No, this is not an insignificant article easily to be
secreted; it cannot be squeezed into a sailor's tobacco-pouch, or
stowed in the private till of a passenger's chest. We find that it
occupied a considerable space in the hold of the ship, that it
filled the state-rooms from the floor to the ceiling; and, besides
the amount of the freight and tonnage, it ought to have contributed
more than eighty pounds to the revenues of the state. It is boldly
said, likewise, that such an entry has been made, as is sufficient
to satisfy the law, and to prevent a forfeiture of the ship: The
master of the Anna has exhibited a manifest it is true but is it
not a partial statement? and can the accuracy of the form
compensate for the fraudulent omission of a substantial item? But
the captain has sworn to the truth of the manifest and can his
perjury cure the evil, which his malversation has introduced? This
naturally calls for some observation upon the leading principle
used on behalf of the claimants, to wit, their innocence, and total
ignorance of the transaction, which has involved them in this
prosecution. It is not necessary, and therefore it will not be
attempted, to press the circumstances which raise a presumption,
that the
Page 1 U.S.
197, 204
claimants were either acquainted with the conduct of their
officers, or were guilty of the grossest negligence: but it should
be remembered, that they might have seen the porter on board the
ship, if, as their own witness expressed it, they had chosen to
look that the contraband unlading took place at their wharf, and
but a few yards distant from their counting- house, that it was a
matter known to every sailor on board the ship, and that the mate,
who is supposed to have done them so severe an injury, was retained
in their service for two or three weeks after the seizure. Still
however, the innocence of the claimants, has no connection with the
present question, which depends upon this single issue, whether the
allegation contained in the information is, or is not true? in
other words whether 42 hampers of porter have been unladed from the
ship Anna, before they were duly entered at the collector's office?
Much declamation indeed has been exercised upon this proposition,
'that the innocent ought not to suffer for the guilty:' but,
however just it may be in the abstract, the state of society
necessarily introduces many striking exceptions. Thus, if a carrier
is attacked by robbers, and after a brave defence is overpowered,
notwithstanding his innocence and his misfortune, he is still
answerable for the goods of which he was plundered; nay, if his
master, on whom no shadow of blame could possibly be reflected, is
called upon he must render to the owner a full indemnification.
Again; if a man lends a piece of furniture to another, which is
distrained with the goods of the borrower for arrearages of rent,
is there any thing culpable in his conduct? and yet the law works a
forfeiture of his property, to satisfy the demands of the landlord.
How many virtuous wives suffer for the depravity of their husbands
how many inoffensive children for the dissipation of their parents?
In short, the relative obligations of social life are such, that we
may trace the fortunes and happiness of mankind to a dependence
upon the actions of each other, in almost every sublunary station
but in none is it more observable than in the important connection
between master and servant. From every book that treats upon the
subject, as well as from daily experience, we find that the master
is responsible for the actions of his servant, the owner for the
agency of his captain; but we shall readily concur with our
antagonists in acknowledging, that this responsibility continues
only while the servant or captain is engaged in the business of the
master or owner.
What then is the present case? The law requires the master of
any ship or other vessel to exhibit a true manifest, upon oath, to
the collector of the port does it not consequently become his duty
to do so? and is not his neglect or evasion in this respect, a
neglect or evasion committed, while in the actual transaction of
the owner's business? Upon their own construction, therefore, the
claimants are liable; and it is unnecessary for us to prove, as we
could do, that had the fraud been perpetrated even by the sailors,
a forfeiture of the vessel would have ensued. In England, the
owners to the utmost
Page 1 U.S.
197, 205
extent of their fortunes, were likewise amenable for the conduct
of the mariners they employed, 'till an act of parliament
interfered, and limited their responsibility to the value of the
ship and cargo. In Pennsylvania a late determination has recognised
the doctrine for which we contend;* and capt. Angus and the owners
of the vessel which he commanded, have in vain pleaded their
innocence and ignorance of the malpractice of others, to excuse
them from the resulting damages. Such, after all, is the law and it
can be no ground for counteracting the evident intentions of the
legislature, that the claimants have been deceived by the persons
to whom they have, perhaps, too implicitly confided their
interests. The President delivered the following charge to the
jury:
Shippen, President. This is an information exhibited against the
ship Anna, as being a vessel from which 42 hampers of porter were
unladed, without a previous entry at the collector's office. The
evidence on the part of the informants, proceeds from several
witnesses, one of whom discovered the drays going from Clifford's
alley, and pursued them to Smith's, where the porter was lodged.
Two porters have proved the unlading, and the seizure; and by the
manifest it appears, that only twenty hampers were entered, tho' 42
hampers were carried to Smith's, 24 to the captain's store, and
above 50 remained on board the ship: so, the evidence is full and
clear, that more goods have been unladed, than were entered with
the collector. The claimants, on the other hand, have filed their
claim, and say that no act has been done, which under the laws of
Pennsylvania, incurs a forfeiture This, therefore, is the province
of the jury to try and determine. The words of the act of assembly,
upon which this prosecution is grounded, have been the subject of
animadversion on both sides; but as they are few, we will repeat
them. 'Every vessel or boat, from which any goods, wares, or
merchandize shall be unladed, before due entry thereof at the
office of the collector of the port of Philadelphia, &c. shall
be forfeited.' Some doubts have been raised with respect to the
thing meant to be entered; but the subject matter of the act,
plainly refers to 'goods, wares, and merchandize' and it would be
highly absurd if taken otherwise, as boats are never entered. This
act does not say what shall be a due entry, but the next preceding
one requires, that 'the master of any ship or vessel shall exhibit
to the collector a true manifest of the goods, wares and
merchandize imported in such ship or vessel, & c. and swear
that there are no other on board to the best of his knowledge and
belief.' It has been suggested, that the captain having delivered
in a manifest, and sworn to it, this duty is done, and that in case
of an omission, only the goods omitted are to be forfeited: But if
the captain is obliged by law to deliver in a manifest, he does not
comply, unless he exhibits a true and accurate one: and his
committing perjury upon the occasion, so far from saving the
vessel, must greatly encrease the offence. This has been repeatedly
called a hard law: but the truth
Page 1 U.S.
197, 206
is, that revenue laws are of a harsher nature than any others,
and necessarily so; for, the devices of ingenious men, render it
indispensable for the legislature to meet their illicit practices
with severer penalties.
Thus, if the Sheriff has a writ against any man, he cannot break
open his door to execute it but if liquor is smuggled into a
cellar, the law says it is better that an individual should suffer
in his personal privileges, than that the public should be cheated
of its duties; and therefore allows the officer to force locks,
&c. in order to make a seizure; in the first case, between
citizen and citizen, a man's house is considered as his castle; in
the second, between the public and the private character, it is no
longer regarded in that sacred light. We do not mean, however, to
reflect on laws of this description we know they are necessary, as
every society stands in need of assistance from its members. If the
end can be accomplished without infringing the private rights of
the subject, it is so much the better; but, at all events, the
exigencies of government must be satisfied. It has been said, that,
if the law is enforced as the informants contend for, the merchants
will not be safe, no foreign vessels will be sent to our ports,
and, eventually, the revenue must fail, But, nevertheless it is
requisite that such laws should be strictly worded, though,
undoubtedly, there are cases where the construction of the words
must be such, as to prevent more injury being done than was
intended. The navigation act of England says, that goods imported
as merchandize shall be forfeited, if they do not pay a certain
duty; and the case in Strange 943. is a seizure of shirts,
nightgowns, and caps under this law. It was there argued that the
word 'goods,' would certainly include those articles, but the
Judges were of opinion that it could not be the meaning of the
Legislature to make wearing apparel subject to forfeiture. The case
in Bunbury is the single one that reaches the point before us.
There the question arises whether goods put on board secretly, and
unladed without the knowledge of the captain, would occasion a
confiscation; and the Judges agreed that if it was a small matter,
and no part of the cargo, it would not. The claimants therefore to
have the benefit of this case should show, 1st. That the subject of
the present prosecution, is a small matter. 2ndly. That it was no
part of the cargo, and 3rdly, that it was smuggled without the
knowledge of the captain.
1st. Then, a small matter is an indefinite phrase, not to be
ascertained by mere words, but by the evident meaning of the Judges
who used it; and from that criterion it should seem to be a
trifling thing, easily concealed, and which might fairly escape the
notice of the captain; but it cannot be extended to large and
weighty goods, deposited in the hold of the vessel, and which then
constitute a part of her cargo. 2ndly, The counsel for the
informants have suggested, that only such goods as belong to the
owners, or yield them a profit upon freight can be called a cargo;
whereas, in truth, the cargo is the lading of the vessel, and,
though by bribery, or craft, some articles
Page 1 U.S.
197, 207
might be introduced into the hold without the knowledge of the
owners or the captain, yet every thing which is put on board the
vessel, is, in general, comprehended in that description. But,
3rdly, the knowledge of the captain is here proved by strong
presumption. The quantity of porter that was put on board, the
removal of it at sea, the evidence of the delivery of 24 hampers at
his store, and by his order, are circumstances from which, we
suppose, the claimants themselves, did not think his ignorance of
the transaction tenable.
Then there remains only the great point upon which the counsel
for the claimants seem chiefly to rely, to wit, their innocence and
ignorance, with respect to the fraud that has been committed. There
is no evidence, indeed, that tends to show, that the owners of the
ship meant to do any thing unfairly; but, on the contrary, that the
mate brought the goods hither with the avowed intention to defraud
them, as well as the state. The question then recurs, what
difference does it make, whether they knew of it, or not? Here is a
positive law that directs a due entry of all goods, wares, and
merchandize imported into this state, under certain penalties, and
one of them is the forfeiture of the vessel or boat from which they
are unladed. It does not speak of the knowledge of any person, but
seems to be studiously worded to avoid that construction. It is not
a novel law, though perhaps it is stricter now than formerly: For,
in England it has long existed, and before the revolution it was
known in Pennsylvania. The Legislature has thought that nothing
else would answer, and the Judges and the Jurors are equally bound
to obedience. If indeed the law was doubtful or latitudinal,
admitting one interpretation, which would be just, and another
which would be unjust, it would become us to prefer the former. But
if the policy of the Legislature seems to bear hard on the subject,
we are not to judge, and determine upon its propriety that is a
matter for the deliberation of those who made the law and however
unjust it seems, we must acquiesce, or there must be a dissolution
of society. It must certainly affect every humane man to see the
innocent suffer; but in society this is not strange or uncommon;
and the distinction may properly be taken between criminal and
civil cases. The law never punishes any man criminally but for his
own act, yet it frequently punishes him in his pocket, for the act
of another. Thus, if a wife commits an offence, the husband is not
liable to the penalties; but if she obtains the property of another
by any means not felonious, he must make the payment and amends.
There are a variety of other instances, in which men are
responsible for one another, in consequence of their connection in
sociey. The drayman, if he drives over and kills a child, must
himself suffer the judgment of the law but if he staves a pipe of
wine, his master must make the compensation. Upon the whole, it is
neither a hard nor a novel case, since men must occasionally employ
others to act for them, and ought to answer for those in whom they
confide. If the Legislature has thought proper to subject the
owners to this forfeiture, we must submit. With the Jury,
therefore, the power is happily lodged,
Page 1 U.S.
197, 208
which was formerly exercised by a single Judge, and it is their
duty, finally to acquit or condemn the ship, as in their
consciences they think ought to be done.
The Jury, after a short adjournment, returned a verdict in
favour of the informants.
Footnotes
[
Footnote *] See Ant. 180.
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