# Phile v. Ship Anna

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PHILE qui tam verʃus The Ship ANNA.
T
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hold, and ftowed away in the ftate-rooms, filling from the floor to the cieling, fo that any perfon who was in the leaft attentive, moft have obferved them upon entering the cabin ; and it appeared, that the owners and their agent had been feveral times on board before the feizure, and the removal of the hampers from that fituation. The cuftomary privilege of a captain in the Briʃtol trade was defcribed to be limited to one ton, and the grofs number of the hampers of porter difcovered 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 occafion, had been retained in their fervice, on board the fhip, for two or three weeks after the feizure ; but he had lately abfconded, under the apprehenfion of a profection for the penalty of Ł.500.
For the claimants, it was given in evidence by a paffenger, that he was told by the mate of the Anna (who it feems was a man or fome property) that he had clandeftinely fhipped a quantity of porter, which he intended to difpofe of here, without paying the freight to the owners, or the duties to the ftate, and which he had an opportunity of doing, even without the captain 's knowledge, as it was the cuftom for mates to fuperintend the loading and unloading of the veffel. The witnefs had likewife during the paffage, purchafed about a dozen of porter from the mate, who then folicitoufly requefted that the circumftance might not be communicated to the captain ; and who (as feveral witneffes proved) after his arrival at Philadelphia, had treated with feveral perfons for the fale of porter, repeatedly informing them that it was his private adventure, and that the owners of the veffel had not a bottle on board. When the hampers were removed at fea, from the hold into the cabin, the captain, who had long been indifpofed, was then particulary fick, owing to his exertions during a ftorm that had happened the preceding night ; and the father of one of the owners who had taken charge of the veffel upon her arrival, affirmed that he did not, while in the cabin, obferve the hampers that were ftowed away in the ftate-rooms ; that he had been very cautions in directing the manifeft to be made out according to the invoices and bills of lading, and that he had perfonally enjoined all the officers of the fhip, not to land a fingle article without a regular permit from the collector. It was in proof, likewife, that a hamper of porter which the failors were boiling out of the hold, was haftily let down again upon the appearance of one of the owners.
The evidence on both fides being ftated, the counfel for the claimants argued, that the prefent queftion was of the greateft importance to the commercial interefts of the country, as it was now to be determined, whether an innocent owner of a fhip, was refponfible for all the unwarrantable actions of her officers and crew ? A rigid conftruction of the law, upon which this profecution is grounded, cannot fail indeed, to counteract the object of the legiflature in framing it : as the attempt to fecure our revenues by ​
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indifcriminately inflicting upon the unoffending merchant, the penalties refulting from the illicit practices of his captain, will fo multiply the rifques of commerce, that the hope of gain, and the ardor of enterprife muft ceafe to operate, and in the eventual lofs of trade, will be involved the total diffolution of the impoft fyftem. We fhould, therefore, be particularly cautious what principles we eftablifh at this crifis of our commerce, and, in imitation of the wife precedents tranfmitted to us by our anceftors ; we fhould fo interpret the letter of the law, as to render its operation reafonable and juft, the fource of punifhment to the guilty, but of certain acquital to the innoncent. In the prefent cafe it has been fully demonftrated that the claimants were not interefted in the commodity which has been furreptitioufly introduced into this city, and that fo far from knowing and confenting to the fraud, the utmoft vigilance and cirumfpection were exercifed on their behalf to prevent it. The queftion then, to be now confidered, may be fairly comprehended in an enquiry– How far the property of the owners is liable to confifcation for the mifconduct of their officers and crew ; and whether, by a liberal conftruction of the acts of affembly, the fhip itfelf, under all the circumftances appearing in evidence is a fubject of forfeiture?
1st. It must be admitted as a general rule that the master is responfible 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 draymen 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 leave 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 fimilar 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 eftablifhed, that the claimants are refponfible for the conduct of their officers, as far as it refpects the bufinefs of navigation, and the cargo of the fhip ; but in no other view can the captain be confidered as their agent, and confequently on no other account can they be affected by his tranfactions. What then is underftood by the term cargo? The privileges allowed to the marners are not furely to be comprehended in the defcription ; and if a captain or a mate clandeftinely exceeds his privilege, this ought not in juftice to be a ground for altering the cafe. The meaning of the word cargo muft therefore be reftricted to fuch goods, wares, and merchandize, as belong immediately to the owners of the fhip, or fuch as yield them a profit upon freight. Now, it is in evidence, that the porter, landed form 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 confequently no part ​
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of her cargo, it had not been entrufted by the claimants to the fuperintendency of the captain or any other perfon on board ; and therefore it cannot be faid, that the entry was neglected by “ them, their agents, factors, or confignees,” which is exprefsly required by an act of affembly, (and all the laws upon the fubject muft be taken together) in order to work a forfeiture. If this difcrimination is difregarded, what vigilance, what precaution, can protect the property of the moft upright merchant from confifcation? The tobacco-pouch of a failor, or the fecret till of a paffenger's cheft, (for, according to the conftruction urged by the informants, the moft trifing article is fuficient for their purpofe) may contain the inftrument of ruin, and it would be in vain to fhew, that the fufferer was ignorant of the fraud, and diligent to prevent it, while ita lex ʃcripta eʃt furnifhes the ready, but harfh anfwer to the fincerity of his plea. With refpect 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 any thing beyond the cargo, and fuch we alledge is the commodity which gives rife to the prefent litigation, their knowledge is, at leaft, requifite, in reafon, juftice, and in law too, before they can be condemned to make atonement for his offences.
2dly. It has been already faid, that laws fhould be fo conftrued as to prevent an injury being done to the innocent ; and accordingly a multitude of cafes are to be found in which the force of the expreffion has been rejected, when evidently contrary to reafon and juftice. There was a law, that thofe who in a ftorm forfook the fhip, fhould forfeit all property therein ; and the fhip and lading fhould belong entirely to thofe who ftaid in it. In a dangerous tempeft all the mariners forfook the fhip except only one one fick paffenger, who, by feafon of his difeafe, was unable to get out and efcape. By chance the fhip came to port : the fick man kept poffeffion and claimed the benefit of the law. Now, here, all the learned agree, that the fick man is not within the reafon of the law ; for the reafon of making it was, to give encouragement to fuch as fhould venture their lives to fave the veffel : but this is a merit which he could never pretend to, who neither ftaid in the fhip upon that account, nor contributed any thing to its prefervation. Again, there was an edict which condemned any man to death who fhould fcale the walls of a certain city. One who had difcovered 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 cafe came manifeftly within the words, his judges pronounced, that it could not be the intention of the legiflature to punifh an action that proceeded from fuch meritorious motives ; and therefore they acquitted him. But we have a memorable inftance of a more recent date, arifing from an ordinance of Congrefs, which declared, that any veffel conveying goods, &c. to the enemy, fhould be fubject to capture and condemnation. A Dutch veffel, called the Golden ​
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Roʃe, had been taken by a Britiʃh cruizer, and while her captors were carrying her into New-York, fhe was retaken by an American privateer. It was ferioufly contended upon that occafion, that the Dutch veffel was a lawful prize according to the words of the ordinance ; but the court would not allow fo extravagant a claim, grafted upon the ftrict letter, to pervert the politics but equitable meaning of the act of Congrefs. Let us then try whether the act of affembly, on the fubject in difcuffion, may not be a liberal interpretation, operate fo as to relieve the claimants from the injury with which they are threatened, and at the fame time promote the rational views of the legiflature. In the fection upon which the informants proceed, it is faid, ‘‘ that every veʃʃel or boat, from which any goods, wares, or merchandize shall be unloaded, before due enter thereoƒ, &c. fhall be forefeited.” Hence then, if we underftand the word thereof to refer to the entry of the veffel, though it may produce a flight deviation from the grammatical relation to the next immediate antecedent, we fhall certainly give a more reafonable and benevolent explanation to the law, than by making the veffel liable to forfeiture for the non-entry of the goods, wares, and merchandize. By the firft conftruction, a duty is impofed upon the owners, with which it is in their power to comply ; by the fecond they are expofed to lofs and ruin for the negligence or malverfation of others, which they could not forefee, and cannot prevent. The fhip, and its contents, are indeed diftinct things in their nature, and thus be rendered (as they ought to be) diftinctly refponfible for the management of thofe to whom they are entrufted. If the fhip is not entered, let the penalty fall there ; and if the cargo is not entered, let that be doomed to confication ; but the idea of making them reciprocally refponfible is contrary to natural juftice, and muft be incompatible with found policy. No foreign merchant will truft his veffel in our ports, and no citizen of Pennʃylvania will be hardy enough to engage in commerce upon fuch precarious terms. But it is to be farther obferved in this place, that the legiflature having changed the expreffion ; we may juftly infer that the object of the law was likewife changed. In the preceeding act relative to the impoft, the words “ ʃhip or veʃʃel ” are employed, and not “ veʃʃel or boat ” as in the fection above cited: it is therefore to be prefumed that it was only in contemplation to deftroy the petty fleets of fmugglers which infelt our creeks and rivers ; and as it is a maxim in law, that ‘‘ a ftatute treating of things or perfons of an inferior rank, cannot by any general words be extended to thofe of a fuperior,” a ʃhip, which in maritime affairs is of the higheft order, cannot be defignated by the fubordinate title of a veʃʃel.
There is, however, an additional and very forcible argument, to fhew that the informants are not entitled to a verdict of condemnation againft the Anna, which is drawn from the regularity of the entry that has been made. By the act of affembly, in which this ​
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caufe originates, no form of entry is prefcribed ; we muft therefore apply for the inftruction to the preceding impoft law, which directs ‘‘ the mafter of any fhip or other veffel to exhibit to the collector a true manifeft, figned by him, of all the goods, wares, and merchandize, imported in fuch fhip or veffel, ” and, after fundry other regulations, calls upon him to make oath, “ that the manifeft faithfully ftates the refpective goods, wares, and merchandize therein mentioned, and that no other is laden or imported in his veffel to the beft of his knowledge or belief.” Has any of the requifites to conftitute a formal entry been neglected by the mafter of the Anna? It appears that he has, in due feafon, exhibited an official manifeft, and that he has fworn to the truth of its contents. This is furely all the law exacts, at leaft for the difcharge of the fhip ; and though the omiffion of any article may be a caufe for forfeiting that article (as it has already happened with the porter upon this occafion) and may likewife be a proper foundation for a charge of perjury, it cannot be extended to diveft the property of an owner who has not practifed any deceit himfelf, and who could not derive any advantage from the deceit practifed by another.
The Counfel for the informants, in reply to the preceding arguments, ftated : that the determination of this caufe would certainly produce confequences of an important nature, and either render the act of affembly upon which is founded, a dead letter, or a productive inftrument of public revenue. In governments differently conftituted, where regal pageantry, or military force, can invite or compel refpect and obedience to the law, little danger is to be apprehended from the occafional indulgence of learned men in their ingenious and novel comments upon the fenfe and expreffions of the legiflature ; but under a democratical conftitution fuch as ours, fhould the people acquire a habit of yielding to logical fubtleties and fpecious declamation, there is no power to controul the evil that muft enfue ; the principles of jurifprudence would become weak and fluctuating, and the virtue and dignity of the commonwealth would be contaminated and eventually deftroyed. Inftead therefore of confidering how to efcape from the ftrong expreffion of the act before us, it is our duty to give it the fulleft operation that is neceffary for fuppreffing the mifchief to which the legiflative attention was originally directed : and here we cordially embrace the pofition of our antagonifts, that the meaning of thofe who framed the law is the beft 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 fmuggled goods, as the claimants infinuate, for that was impofed by an antecedent law ; but the truth is , that every other pernalty having proved ineffectual, this ftatute was enacted ecprefsly to fup(illegible text)radd the forfeiture of the veffel or boat from which the goods fhould be clandeftinely unladed. But here it is remarked, the the ​
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legiflature has changed its language, and therefore it has changed its object–It would be idle indeed, to attempt by argument to prove that a veʃʃel is a term fufficiently comprehenfive to describe a ʃhip– but furely the fequel of the fame law muft remove every doubt, when it enacts, that “ where forfeiture of the ʃhip, veffel, boat, &c. fhall have been incurred, the naval-officer and his deputies may feize the fame.” Again, it is faid, that by difpenfing with a rule in grammar, it will appear, that the neglect to enter the veffel herfelf, is the fole circumftance which expofes her to forfeiture. But if this conftruction is allowed, it follows, that every boat, as well as every fhip, muft be duly entered at the collector's office, for the fentence will then run in this way, “ every veffel or boat, which, before due entry thereoƒ, fhall unlade, &c.” a pofition that is neceffarily defeated by its own abfurdity.
The claimants purfuing this curious fyftem of defence, have not only endeavoured to perfuade us that the porter was no part of the cargo, but likewife that one hundred and thirty-two hampers (which was the grofs quantity contained in the fhip) make a mere trifle, too insignificant to produce a forfeiture. To thefe ideas how is it poffible to oppofe a ferious refutation? The understanding of mankind is not at this day to be deceived by a diftored definition of words, nor will mere affertion be allowed to overthrow the ftrong evidence of the fenfes. Confine the meaning of the term cargo, according to their fuggeftion, to fuch goods, wares, and merchandize as belong immediately to the owners, or fuch as yield them a profit upon freight, and it may happen, that the fhip shall be deeply ladened, and yet it will be faid, that the 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 confidered as a triƒle? No, this is not an infignificant article eafily to be fecreted ; it cannot be fqueezed into a failor's tobacco-pouch, or ftowed in the private till of a paffenger's cheft. We find that it occupied a confiderable fpace in the hold of the fhip, that it filled the ftate rooms from the floor to the ceiling ; and, befides the amount of the freight and tonnage, it ought to have contributed more than eight pounds of the revenues of the ftate.
It is boldly faid, likewife, that fuch an entry has been made, as is fufficient to fatisfy the law, and to prevent a forfeiture of the fhip : The mafter of the Anna has exhibited a manifeft it is true– but is it not a partial ftatement ? and can the accuracy of the form compenfate for the fraudulent omiffion of a fubftantial item?
But the captain has fworn to the truth of the manifest– and can his perjury cure the evil, which his malverfation has introduced?–This naturally calls for fome obfervation upon the leading principle ufed on behalf of the claimants, to wit, their innocence, and total ignorance of the tranfaction, which has involved them in this profecution. It is not neceffary, and therefore it will not be attempted, to prefer the circumftances which raife a prefumption, that the ​
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claimants were either acquainted with the conduct of their officers, or were guilty of the groffett negligence : but it fhould be remembered, that they might have seen the porter on board the fhip, if, as their own witnefs expreffed it, they had chofen to look– that the contraband unlading took place at their wharf, and but a few yards diftant from their counting-houfe, that it was a matter known to every failor on board the fhip, and that the mate, who is fuppofed to have done them fo fevere an injury, was retained in their fervice for two or three weeks after feizure. Still however, the innocence of the claimants, has no connection with the prefent queftion, which depends upon this fingle iffue, 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 fhip Anna, before they were duly entered at the collector's office? Much declamation indeed has been exercifed upon this propofition, “ that the innocent ought not to fuffer for the guilty: ” but, however juft it may be in the abftract, the ftate of fociety neceffarily introduces many ftriking exceptions. Thus, if a carrier is attacked by robbers, and after a brave defence is overpowered, notwithftanding his innocence and his misfortune, he is ftill anfwerable for the goods of which he was plundered; nay, if his mafter, on whom no fhadow of blame could poffibly be reflected, is called upon, he muft render to the owner a full indeminfication. Again ; if a man lends a piece of furniture to another, which is disftrained 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 fatisfy the demands of the landlord. How many various wives fuffer for the depravity of their hufbands–how many inoffenfive children for the diffipation of their parents ? In fhort, the relative obligations of focial life are fuch, that we may trace the fortunes and happinefs of mankind to a dependence upon the actions of each other, in almoft every fublunary ftation–but in none is it more obfervable than in the important connection between mafter and servant. From every book that treats upon the fubject, as well as from daily experience, we find that the mafter is refponfible for the actions of his fervant, the owner for the agency of his captain ; but we fhall readily concur with out antagonifts in acknowledging, that this refponfibility continues only while the fervant or captain is engaged in the bufinefs of the mafter or owner.
What then is the prefent cafe? The law requires the mafter of any fhip or other veffel to exhibit a true manifeft, upon oath, to the collector of the port – does it not confequently become his duty to do fo? and is not his neglect or evafion in this refpect, a neglect or evafion committed, while in the actual tranfaction of the owner's bufinefs? Upon their own conftruction, therefore, the claimants are liable ; and it is nneceffary for us to prove, as we could do, that had the fraud been perpetrated even by the failors, a forfeiture of the veffel would have enfued. In England, the owners of the utmoft ​
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extent of their fortunes, were likewife amenable for the onduct of the mariners they employed , ‘till an act of parliament interfered, and limited their refponfibility to the value of the fhip and cargo. In Pennʃylvania a late determination has recognifed the doctrine for which we contend ;and capt. Angus and the owners of the veffel which he commanded, have in vain pleaded their innocence and ignorance of the malpractice of others to excufe them from the refulting damages. Such after all, is the law–and it can be no ground for counteracting the evident intentions of the legiflature, that the claimants have been deceived by the perfons to whom they have, perhaps, too implicitly confided their interefts.
The president delivered the following charge to the jury:–
SHIPPEN, Preʃident.–This is an information exhibited againft the fhip Anna, as being a veffel from which 42 hampers of porter were unladed, without a provious entry at the collector's office. The evidence on the part of the informants, proceeds from feveral witneffes, one of whom difcovered the drays going from Cliƒord's alley, and purfued them to Smith’s wherre the porter was lodged. Two porters have prove the unlading, and the feizure ; and by the manifeft it appears, that only twenty hampers were entered, tho’ 42 hampers were carried to Smith's, 24 to the captain's ftore, and above 50 remained on board the fhip : –fo, the evidence is full and clear, that more goods have been unladed, than we were entered with the collector. The claimants, on the other hand, have filed their claim, and fay that no act has been done, have filed their claim, and fay that no act has been done, which under the laws of Pennʃylvania, incurs a forfeiture–This, therefore, is the province of the jury to try and determine.
The words of the act of affembly, upon which this profecution is grounded, have been the fubject of animad verfion on both fides ; but as they are few, we will repeat them. “ Every veffel or boat, from which any goods, wares, or merchandize fhall be unladed, before due entry thereof at the office of the collector of the port of Philadelphia &c. fhall be forfeited.” Some doubts have been raifed with refpect to the thing mean to be entered ; but the fubject matter of the act, plainly refers to “ goods, wares, and merchandize”–and it would be highly abfurd if taken otherwife, as boats are never entered. This act does not fay what fhall be a due entry, but the next preceding on requires that “ the mafter of any fhip or veffel fhall exhibit to the collector a true manifeft of the goods, wares, and merchandize imported in fuch fhip or veffel, &c. and fwear that there no other on board to the beft of his knowledge and belief.” It has been fuggefted, that the captain having delivered in a manifeft, and fworn to it, this duty is done, and that in cafe of an omiffion, only the goods omitted are to be forfeited : But if the captain is obliged by law to deliver in a manifeft, he does not comply, unlefs he exhibits a true and accurate one ; and his committing perjury upon the occafion, fo far from facing the veffel, muft greatly encreafe the offence. This has been repeatedly called a hard law: but the truth ​
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is, that revenue laws are of a harfher nature than any others, and neceffarily fo ; for, the devices of ingenious man, render it in difpenfable for the legiflature to meet their illicit practices with feverer penalties.
Thus, if the Sheriff has a writ againft any man, he cannot break open his door to execute it– but if liquor is fmuggled into a cellar, the law fays it is better that an individual fhould fuffer in his perfonal privileges, than that the public fhould be cheated of its duties ; and therefore allows the officer to force locks, &c. in order to make a feizure ; in the firft cafe, between citizen and citizen, a man's houfe is confidered as his caftle ; in the fecond, between the public and private character, it is no longer regarded in that facred light. We do not mean, however, to reflect on laws of this defcription – we know they are neceffary, as every fociety ftands in need at affiftance from its members. If the end can be accomplifhed without infringing the private rights of the fubject, it is fo much the better ; but, at all events, the exigencies of government muft be fatisfied. It has been faid, that, if the law is enforced as the informants contend for, the merchants will not be fafe, no foreign veffels will be fent to our ports, and, eventually , the revenue muft fail. But, neverthelefs it is requifite that fuch laws fhould be ftrictly worded, though undoubtedly, there are cafes where the conftruction of the words muft be fuch, as to prevent more injury being done than was intended. The navigation act of England fays, that goods imported as merchandize fhall be forfeited, if they do not pay a certain duty ; and the cafe in Stranger 943. is a feizure of shirts, nightgowns, and caps under this law. It was there argued that the word gowns, and caps under this law. It was there argued that the word “goods,” would certainly include thofe articles, but the Judges were of opinion that it could not be the meaning of the Legiflature to make wearing apparel fubject to forfeiture. The cafe in Bunbury is the fingle one that reaches the point before us. There the queftion arifes whether goods put on broad fecretly, and unladed without the knowledge of the captain, would occafion a confifcation ; and the Judges agreed that if it was a fmall matter, and no part of the cargo, it would not. The claimants therefore to have the benefit of this cafe fhould fhew, 1ft, That the fubject of the prefent profecution, is a fmall matter. 2dly, That it was no part of the cargo, and 3dly, that it was fmuggled without the knowledge of the captain.
1ft. Then, a ʃmall matter is an indefinite phrafe, not to be afcertained by mere words, but by the evident meaning of the Judges who ufed it ; and from that criterion if fhould feem to be a trifling thing, eafily concealed, and which might fairly efcape the notice of the captain ; but it cannot be extended to large and weightly goods, depofited in the hold of the veffel, and which then conftitute a part of her cargo. 2dly, The counfel for the informants have fuggefted, that only fuch 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 veffel, and, though by bribery, or craft, fome ​
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articles might be introduced into the hold without the knowledge of the owners or the captain, yet every thing which is put on board the veffel, is, in general, comprehended in that defcription. But, 3dly, the knowledge of the captain is here proved by ftrong prefumption. The quantity of porter that was put on board, the removal of it at fea, the evidence of the delivery of 24 hampers at his ftore, and by his order, are circumftances from which, we fuppofe, the claimants themfelves, did not think his ignorance of the tranfaction tenable.
Then there remains only the great point upon which the counfel for the claimants feem chiefly to rely, to wit, their innocent and ignorance, with refpect to the fraud that has been committed. There is no evidence, indeed, that tends to fhew, that the owners of the fhip meant to 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 ftate. The queftion then recurs, what difference does it make, whether they knew of it, or not? – Here is a pofitive law that directs a due entry of all goods, wares, and merchandize imported into this ftate, under certain penalties, and one of them is the forfeiture of the veffel or boat from which they are unladed. It does not fpeak of the knowledge of any perfon, but feems to be ftudioufly worded to avoid that conftruction. It is not a novel law, though perhaps it is a ftricter now than formerly: For, in England it has long exifted, and before the revolution it was known in Pennʃylvania The Legiflature has thought that nothing elfe would anfwer, 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 juft, and another which would by unjuft, it would become us to prefer the former. But if the policy of the Legiflature feems to bear hard on the fubject, we are not to judge, and determine upon its propriety–that is a matter for the deliberation of thofe who made the law–and however unjuft it feems, we muft acquiefce, or there muft be a diffolution of fociety. It muft certainly affect every humane man to fee the innocent fuffer ; but in fociety this is not ftrange or uncommon ; and the diftinction may properly be taken between criminal and civil cafes. The law never punifhes any man criminally but for his own act, yet it frequently punifhes him in his pocket, for the act of another. Thus, it a wife commits an offence, the hufband is not liable to the penalties ; but if fhe obtains the property of another by any means not felonious, he muft make the payment and amends. There are a variety of other inftances, in which men are refponfible for one another, in confequence of their connection in fociety. The drayman, if he drives over and kills a child, muft himfelf fuffer the judgment of the law–but if the flaves a pipe of wine, his mafter muft take the compenfation.–Upon the whole, it is neither a hard nor a novel cafe, fince men muft occafionally employ others to act for them, and ought to anfwer for thofe in whom they confide. If the Legiflature has thought proper to fubject the owners to this forfeiture, we muft fubmit. With the Jury, therefore, the power is happily lodged, ​
1787.
which was formerly exercifed by a fingle Judge, and it is their duty finally to acquit or condemn the fhip, as in their confciences they think ought to be done.
The Jury, after a fhort adjournment, returned a verdict in favour of the informants.