
11 U.S. 52 (1812)
7 Cranch 52
SCHOONER PAULINA'S CARGO
v.
THE UNITED STATES.
Supreme Court of United States.
February 15, 1812.
February 21, 1812.
Absent ... . Washington, justice.
*55 PITKIN, for the Plaintiff in Error.
DALLAS, Attorney of the United States for the District of Pennsylvania, contra.
All the judges being present.
*60 MARSHALL, CHIEF JUSTICE, delivered the opinion of the court as follows:
The libel in this case, as amended in the Circuit Court for the District of Rhode Island, claims the schooner Paulina and her cargo as forfeited under the 3d section of the act supplementary to the act laying an embargo, and under the 2d section of the act in addition to the original embargo act and its several supplements, and under the 50th section of the act regulating the collection of duties on imposts and tonnage.
In the District Court both vessel and cargo were acquitted; but in the Circuit Court the cargo was condemned.
In construing these laws, it has been truly stated to be the duty of the court to effect the intention of the legislature; but this intention is to be searched for in the words which the legislature has employed to convey it. The legislature has declared its object to be to lay an embargo on the vessels of the United States, and to prevent the transportation of any article whatever from the United States to any foreign port or *61 place; and therefore such transportation is prohibited. To prevent evasions of this law, certain acts which do not in themselves amount to a breach of the embargo, but which may lead to it, have been successively prohibited under such penalties as the wisdom of Congress has prescribed. Those acts become criminal and subject the person to such punishment as the law inflicts. In ascertaining what they are, the court must search for the intent of the legislature, guided by those rules which the wisdom of ages has sanctioned.
But should this court conjecture that some other act, not expressly forbidden, and which is in itself the mere exercise of that power over property which all men possess, might also be a preliminary step to a violation of the law, and ought therefore to be punished for the purpose of effecting the legislative intention, it would certainly transcend its own duties and powers, and would create a rule instead of applying one already made. It is the province of the legislature to declare, in explicit terms, how far the citizen shall be restrained in the exercise of that power over property which ownership gives; and it is the province of the court to apply the rule to the case thus explicitly described  not to some other case which judges may conjecture to be equally dangerous.
The fact made out in the present case is this:
The Paulina, a registered vessel, lying in the common anchorage ground of Warwick bay, in the district of Rhode Island, about two hundred fathoms from the shore, received her cargo from the May-flower, a small vessel of fifteen tons burthen, accustomed to ply between Providence and Newport. The lading of the Paulina was continued in open day for several weeks, but not under the inspection of a revenue officer. When her cargo was nearly on board, she was seized and libelled as having violated the acts of Congress which have been mentioned.
The question will, it is conceived, be the more clearly understood, if we consider the laws in the order in which they were passed, and inquire, first, whether the 3d section of the supplementary act has been violated. *62 In pursuing this inquiry, it is essential to examine how far lading a vessel under the circumstances of the Paulina, was prohibited by the original and supplementary acts without taking into view any subsequent act of Congress.
The original act, passed on the 22d of December, 1807, lays an embargo on all vessels bound to foreign ports, and directs that no clearance be furnished to such vessel. The 2d section directs that before a registered vessel shall receive a clearance for a port in the United States, a bend shall be given with a condition that the cargo shall be relanded in some port of the United States, dangers of the seas excepted.
This act contains no provision applicable to the lading of any vessel whatever, or to licensed vessels, nor does it inflict any forfeiture or penalty on vessels which should depart without a clearance.
The incompetency of this act to effect its object could not be long unobserved. It was soon perceived that foreign trade might be carried on by licensed vessels, and that further regulations respecting registered vessels would also be necessary.
On the 9th of January, 1808, the supplemental act was passed.
The first section directs that bonds shall be given on the part of vessels licensed for the coasting trade, conditioned not to proceed to any foreign port or place, and to reland the cargo in some port of the United States.
The second section contains a proviso declaring that it shall be sufficient for the owners of vessels of the description of the May-flower, to give bond with a condition not to be employed in any foreign trade.
This review of the prohibitions contained in the original and supplementary embargo acts, was necessary to a complete understanding of the 3d section of the supplemental act which is the section supposed by the libellants to comprehend the present case
*63 That section is in these words:
"And be it further enacted, That if any ship or vessel shall, during the continuance of the act to which this is a supplement, depart from any port of the United States without a clearance or permit, or if any ship or vessel shall, contrary to the provisions of this act, or of the act to which this act is a supplement, proceed to a foreign port or place, or trade with or put on board of any other ship or vessel any goods, wares or merchandize, of foreign or domestic growth or manufacture, such ships or vessels, goods, wares and merchandize shall be wholly forfeited," &c.
This section contemplates three distinct transactions.
1. A departure from any port of the United States without a clearance or permit.
2. Contrary to the provisions of the original or supplementary acts to proceed to a foreign port or place; or,
3. To trade with or put on board any other ship or vessel any goods, wares or merchandize.
The offence last described is supposed to have been committed by the Paulina.
Nothing can be more apparent than that the legislature could not have intended to prohibit any person from putting a cargo on board a vessel of any description.
1. The coasting trade was still lawful, and might be carried on by either registered or licensed vessels; consequently any vessel might be laden for that purpose.
2. There is no direct prohibition to lade a vessel with any articles whatever.
3. There are provisions in subsequent laws on the same subject which regulate the manner of lading vessels in order to entitle them to a clearance; which provisions are entirely incompatible with the idea that all lading was prohibited.
*64 With a view to this principle the section must be construed.
The first inquiry which presents itself to the mind is this: Do the words "contrary to the provisions of this act or of the act to which this act is a supplement," limit and restrain both the succeeding members of the sentence, or only the first of them? Are they applicable only to "proceeding to a foreign port or place," or also to "trading with or putting on board any other ship or vessel any goods, wares or merchandize."
If the sentence be construed literally and grammatically, the introductory words which have been stated, are attached to all the offences afterwards described. The departure without a clearance under any circumstances, is an offence. The circumstances of the departure do not affect the case. But to render the facts afterwards enumerated criminal, they must be committed under circumstances described in the law. "If any ship or vessel shall, contrary to the provisions of this act, or of the act to which this is a supplement, proceed to any foreign port or place, or trade with, or put on board of any other ship or vessel," &c. "such ships or vessels, goods, wares, and merchandize, shall be wholly forfeited." The connection between the different parts of this sentence, is inseparable. There is nothing to disjoin them. The nominative to the verbs, "proceed," "trade with," and "put on board," is the same. It is not repeated, but is to be found in the first part of the sentence, and must be taken in the same sense, and with the same qualifications. The relative "such," in that part of the sentence which inflicts the forfeiture, refers to the ship or vessel, which contrary to the provisions, &c. shall have done any one of the acts described.
If this be the literal construction of the sentence, it is still more apparently its real meaning.
If the words, "trade with, or put on board any other ship or vessel," be not limited by the words "contrary to the provisions of this act, or of the act to which this act is a supplement," they would not only prohibit a vessel from lading, but from unlading in a manner, which is frequent, and perfectly innocent. There are *65 many ports in the United States, whose situation requires that a sea vessel should stop at a considerable distance from the place for which she is destined, and, convey part of her cargo in lighters or river craft, to the place of destination. Under such circumstances, to load or unload, would amount to a forfeiture. But such was not the intention of the legislature.
Most apparently, then, both the letter and the spirit of the law must be disregarded, or it must be admitted that the "trading with, or putting on board," that is rendered culpable, must be such a trading with, or putting on board, as is "contrary to the provisions" of the original or supplementary act.
The subsequent words of the section imposing a penalty of from one to twenty thousand dollars on the offence, tend still further to illustrate and confirm this construction. They are "the master or commander of such ship or vessel, as well as all other persons who shall knowingly be concerned in such prohibited foreign voyage, shall forfeit and pay," &c.
The master or commander of the "ship or vessel" described in this part of the sentence, would seem to be the master or commander of any ship or vessel which had committed any one of the offences previously described. If this be true, it is difficult to resist the opinion that the words "as well as all other persons who shall knowingly be concerned in such prohibited foreign voyage" were considered by the legislature as applicable to all the voyages previously prohibited. Consequently the legislature, at the time, supposed themselves to be punishing foreign voyages only.
The Paulina having committed no offence by taking her cargo on board, unless she incurred the penalties of the law by receiving it from the May-flower, the sentence will now be examined with a view to this question. Is the employment in this way of a vessel whose business is confined to the rivers, bays and sounds within the jurisdiction of the United States, a forfeiture of the vessel and cargo?
*66 The bond given by such vessel is that she will not be employed in any foreign trade.
This exemption from the necessity of relanding the cargo, proves the intention of the legislature that such craft might be employed in lading vessels. This employment is not contrary to the provisions of either the original or supplemental act.
If, then, the May-flower had trans-shipped her cargo in the port in which she was laden, it is apparent that no part of the law would have been violated.
The section under consideration inflicts forfeiture on any ship or vessel which shall depart from any port of the United States without a clearance or permit.
If by law this would produce a forfeiture of the cargo when on board the Paulina, it is to be inquired whether, under this libel, the fact of her having passed out of one port into another without a clearance or permit, is examinable.
The libel charges the simple fact of trans-shipment, without alleging the only circumstance which could render such trans-shipment criminal. The question, then, of a departure from the port of Providence into that of Newport is not brought before the court. It does indeed appear in the evidence that, in consequence of an opinion among the revenue officers, as well as others, a clearance in such a case was not requisite  the May-flower carried a considerable part of her cargo to the Paulina without having obtained permits. But the court cannot notice this fact unless the prosecution had, in some degree, been founded upon it.
It is, then the opinion of the majority of the court that, as this case stands, the sentence cannot be sustained under the 3d section of the act of January, 1808. No opinion is given on the construction of that act in a case of trans-shipment from a vessel which has actually passed from one district to another without a clearance.
The libel also claims a forfeiture under the 50th section *67 of the collection law, and under the 2d section of the act commonly called the additional act.
It has been very truly observed that the collection law is in itself totally inapplicable to the case, and can only be relied on for the purpose of explaining the 2d section of the additional act which refers to the collection law.
The operative words of the 2d section are "No ship or vessel shall receive a clearance unless the lading shall be made hereafter under the inspection of the proper revenue officers subject to the same restrictions, regulations, penalties and forfeitures as are provided by law for the inspection of goods, wares and merchandize imported into the United States upon which duties are imposed."
Had the sentence terminated with the word "officers," it is admitted that its only operation would have been to exclude from a right to a clearance a vessel laden in a different manner from that which the act prescribes. The doubt grows out of the residue of the sentence.
This section does not, in terms, refer to the 50th section of the collection law. Whether, in strict grammatical construction, the adjective "subject" agree with and refer to the words "lading," "inspection" or "officers," still the "restrictions, regulations, penalties and forfeitures" which are inflicted, are those which are provided by law for the inspection of goods, not those which are provided by law for unlading them. The word inspection is the governing word which explains the meaning of the sentence; and the provisions for the inspection of goods contain restrictions, regulations, penalties and forfeitures; but they do not affect the cargo.
It is difficult to read the sentence without being impressed with the opinion that the sole penalty intended by the legislature was the denial of a clearance. This will strike any person as the principal object of the clause. What follows is expressed with some confusion and would not seem to constitute the most essential part of the sentence. It cannot be believed that the legislature *68 could intend to inflict so heavy a forfeiture under such cloudy and ambiguous terms. The natural as well as usual course would be to inflict the forfeiture in direct and substantive terms, not by way of loose uncertain reference.
But if this section be construed as the Libellants construe it, then if the value of $400 be put on board a vessel, not only the goods so put on board, but the vessel itself shall be forfeited. For what purpose, then, direct that she shall not receive a clearance? The legislature can scarcely be suspected of making a solemn regulation which, in terms, forbids its officers to grant a clearance to a vessel, which vessel is, by the same sentence, confiscated.
It is the decided opinion of the court, that no forfeiture is incurred under this section of the act.
The majority of the court is of opinion that the sentence of the Circuit Court, condemning the cargo of the Paulina, is erroneous and ought to be reversed.
The court certified that there was probable cause of seizure.
The Chief Justice observed that three of the judges who had heard the argument in the present case, and one who did not hear it, but who had heard the points argued in another case, concurred in this opinion, and that the other judges concurred in the result of the opinion.
JOHNSON, Justice, observed that he dissented from the opinion just delivered by the chief justice upon one ground only.
He was of opinion that the trans-shipment, if with intent to prosecute a foreign voyage, in violation of the embargo, subjected the goods to forfeiture. But as the evidence of that intent was doubtful, he was of opinion that the cargo should be acquitted; and two other judges concurred with him in opinion.
Sentence reversed.
