#### THE BRIG SALLY. HENRY AUDLEY CLARKE, Administrator, v. THE UNITED STATES.

[Frenen Spoliations,

1874;

Decided January 7, 1907.]

*On the Proofs.*

The Sally sails from Newport on-the 7th of June, 1796, bound for Africa. A cargo of slaves is purchased and shipped. On the return voyage from Africa to the neutral island of St. Thomas and thence to Georgia she is captured and subsequently condemned. The question in the ease is whether the United States had a valid diplomatic claim against France.

I.In 1796 the slave trade was lawful both by the law of this country and the law of nations. But by the law of this country it was not lawful to transport inhabitants of a foreign country to another foreign country for the purpose of disposing of them as slaves. *Act 22*March, *1794*(1- Stat. L., p. 347).

II.When the evidence simply shows that the orders of the owners were to take on a cargo of slaves and proceed to St. Thomas and thence to Georgia — the home port was Savannah — the place of ultimate destination, the presumption is that of a lawful purpose, viz, to carry the* slaves to Savannah. An unlawful intent to land them in St. Thomas can not be inferred but must he proved.

III.The vessel having been captured before her arrival in St. Thomas, and there being nothing to show an unlawful intent, it must be held that the capture was unlawful.

IY. In such a case a waiver to recover for the value of the cargo does not extend to the -freight earnings, and freight earnings constitute a lawful claim.

*76
      *The*Reporters’ statement of the case:

The following are the facts of this case as found by the court:

I. The brig Sally, John Y. Villett, master, sailed on a commercial voyage on or about the 7th day of June, 1796, from Newport, B. I., bound for Africa, where she arrived on the Gold Coast in the month of August following. The master of the *Sally*purchased a cargo of slaves and set sail for Savannah, Ga., intending to touch on the way at the Danish island of St. Thomas, probably for supplies. While peacefully pursuing said voyage she was seized upon the high seas on or about the 6th day of March, 1797, by the French privateer *Avenger of the*French, Captain Laurent, and carried into Guadeloupe, where said vessel and her cargo were condemned as good prize by the tribunal of commerce sitting at Basse-Terre, in said island, whereby the same became a total loss to the owners.

The grounds of condemnation were “ that said vessel, coming from the coast of Africa with a cargo of blacks, was taken within two leagues to windward of Antigua.” The prize tribunal then declared that the brig *Sally*and everything that belonged to her was a good prize “ in pursuance to a resolution of the agents of the executive directory bearing date of the 27th of the present month.” The decree provided “ that all the blacks of whom consisted the cargo shall be delivered to Government, without any exception, to be employed in cultivating the national plantations.”

The competent evidence in the case establishes that the brig Sally, Villett, master, was steering for the island of St. Thomas, pursuant to orders, without the intention of selling or disposing of the slaves in said island, but that the ultimate destination of the vessel was Savannah, Ga., and that the purpose of the master was to deliver said cargo at the port of Savannah, in the State of Georgia.

II. The *Sally*was a duly registered vessel of the United States of 124 tons burden; was built at Plymouth, Mass., in the year 1784, and was owned by Peleg Clark, a citizen of the United States and a resident of Newport, in the State of Bhode Island.

*77III. The cargo of the *Sally*at the time of capture consisted of 167 slaves, but no claim has been filed on behalf of any of the owners of same. One hundred and forty of the slaves belonged to Peleg Clark (owner of the vessel), of Newport, B. I., and 21 were the proceeds of the master’s adventure, and 6 belonged to the crew.

IY. Before the clearance of the Sally, a statutory bond for the lawfulness of the voyage was given, which bond subsequently was, in the year 1845, canceled at the Treasury under the regulations in such cases made,and provided.

V. The loss by reason of the capture of the *Sally*and her cargo, so far as claims have been filed in this court, was as f oIIoavs :

The value of the vessel_$4', 300

The value of the freight earnings_ 2, 300

*Mr. Cazenove G.*Lee, *Mr. Charles W.*Faulkner, and *Mr. Frank W. Hackett*for the claimant.

*Mr. John W. Trainer*(with whom was *Mr. Assistant Attorney-General Van Orsclel)*for the defendants:

The contention of the defendants is a very plain and simple one. It is—

1. That while admitting that the slave trade was not in contravention of international law when permitted by the nation of which the accused was a subject, the claimant in the present case violated a statute of the United States forbidding the slave trade under the conditions therein prescribed.

2. That the claims of American citizens upon France not having been set out in detail, it becomes the duty of this court to ascertain whether a particular claim is such as the United States urged against France.

3. That the claim in the case at bar being based upon a violation of our own law, the United States, in good conscience and equity, could not urge indemnity by a foreign nation to a lawbreaker, and that it is the duty of this court to determine that a claimant praying its relief come with clean hands, and if' he does not so do to refuse him indemnity for a loss arising from his violation of his country’s laws.

The vital question in this case is, Was this voyage a violation of the act of March 22, 1794?

*78That the claimant, as owner, fitted, equipped, and loaded a vessel at Newport, in the United States, and caused her to sail to the coast of Africa, a foreign country; that he there purchased ICY negroes as slaves, and that at the time of capture his vessel was transporting said slaves to St. Thomas, another foreign country, pursuant to his orders given before his vessel left her home port, are undisputed facts in the case. The destination of St. Thomas is fixed by the protest of the master in so many words (B,., 11), and it is corroborated by the affidavits of mates Littlefield and Tayer, made September 14, 1797, upon their return. These are contemporaneous documents and show the real destination and object of the voyage, fixed for the purposes of trade.

To find that the vessel put into St. Thomas for water, a contingency that could not have been foreseen before the voyage commenced, is to admit as conclusive evidence the incompetent affidavit of this same Tayer made in 1826, thirty years after the transaction and at a time when the claimant was making up his case against France. To do this the court must squarely reverse the decisions in the ParTcman, McMillan (35 C. Cls. B., 406), and the Juno, Smith (38 C. Cls. B.., 465).

The defendant’s brief was filed in January, 1902. Prior to that time the claimant had completed his case, including the filing of a statement under the rule, and it did not occur to his counsel to attempt to avoid the effect of the act of March 22, 1794, until after the above date. Then, after the defense was made known and on April 7, 1902, the petition was amended to make it conform to Tayer’s affidavit of 1826, and the court is now requested to take the sting out of the law by making a finding based upon that incompetent piece of paper.

I can not see where the *Antelope*(10 Wheaton, 66) or the other authorities as to the slave trade cited in the briefs of claimant’s counsel control this case. In those cases the courts determined the legality of the trade generally. In the case at bar the question is whether indemnity shall be awarded to one who engaged in such trade in violation of a specific law of the nation of which he was a citizen.

*79Much stress is laid upon the doctrine of the strict construction of penal statutes by claimant’s counsel, and they quote Chief Justices Marshall and Fuller in that regard. No one denies the principles stated by those eminent authorities that to determine that a case is within the intention of the statute its language must authorize us to say so, and that before a man can be punished his case must be plainly within it. But claimant’s counsel failed to cite enough of either opinion to present the full view of the court upon the subject of strict construction. (U. *8.*v. ~Wiltberger, 5 Wheaton, 76.)

In view of the contention by claimant’s counsel that to establish a violation of the act of Congress there must be adduced evidence of the actual sale of said negroes as slaves in a foreign port, the court’s particular attention is called to the case of the *United Statés*v. *Morris*(14 Peters, 464), which is on all fours with the case at bar. Said case turned upon the construction of the act of May 10, 1800 (2 Stats., 70), which was an amendment to the very act in question in the present case.

The vessel was captured on her voyage from Plabana bound to St. Thomas in the island of Principe on the coast of Africa. She had on board a cargo of various commodities adapted either to the traffic in negroes or to any lawful commerce carried oh by trading vessels on the coast of Africa. She also had on board planks, stored away in the hold, similar to those used in framing slave decks, but which could not be so used until the vessel had discharged the cargo then on board. There were no slaves on board the vessel, and it was testified by witnesses for the prosecution that, from the cargo and situation in which the vessel was found, no slaves could have been carried or transported in her at any time during the voyage, and that it would have been necessary to have discharged the cargo before slaves could have been taken on board. It was contended bjr the accused that in order to constitute an offense under the statute it was necessary that there should have been an actual transportation or carrying of slaves in the vessel on board of which he was alleged to have served. There being a division of opinion in the court below, it certified the case to the Supreme Court upon four questions.

*80Chief Justice Taney, in delivering the opinion of the court, answered two of said questions relating to the offense charged in this language (p. 477) :

“1. That it is not necessary, in order to constitute the offense denounced in the second section of the act of the 10th of May, 1800, referred to, that there should be an actual transportation or carrying of slave's in the vessel of the United States on board of which the party indicted is alleged to have served.

“ 2. That it is not necessary, in order to constitute the offense denounced in the third section of the act of the 10th of May, 1800, above referred to, that there should be an actual transportation or carrying of slaves in a foreign vessel, on board ox which the party indicted is alleged to have served.”

And the court also held — •

“ In expounding a penal statute, the court will certainly not extend it beyond the plain meaning of its words; for it has been long and well settled that such statutes must be construed strictly. Yet the evident intention of the legislature ought not to be defeated by a forced or overstrict construction.”

This is the Supreme Court’s construction of a part of this statute, holding it unnecessary for slaves to have been on board the vessel at all in order to convict one of the purpose or intent to violate its provisions. The language of the act itself controverts claimant’s contention. The statute is preventive in its nature and terms. It does not wait for a crime to be committed and then impose a penalty, but it denounces the act and penalizes the intention and purpose to commit it. Its force lies in its preventive features. No language could express more clearly that it was the intention of the legislature to prevent citizens of the United States from engaging in the prohibited trade between foreign countries at its very inception, and to seize upon the first evidence of a purpose so to do in order to prevent the consummation of such unlawful purpose by subjecting the offender to a heavy penalty. This was but carrying out the legislative policy of confining the slave trade within the narrowest possible limits until the time should arrive for its abolishment. If the intention of the legislature had been otherwise the act would have been *81dra\tn to punish for a consummated violation of its provisions and not as it was drawn to penalize every step from the inception of the purpose. *(United States*v. Hartwell, 6 Wall., 385.)

To adopt the interpretation urged by claimant’s counsel is to nullify the law. If they are correct, no intention, no purpose can be made out under said act until the violation is complete, until the slaves have been transported and actually sold.

Counsel has failed to consider another principle governing penal statutes. Intention, purpose is made out by the facts and circumstances surrounding the transaction, by the acts and deeds of the accused, which, taken as a whole, lead reasonable men to the logical conclusion of what was the intent and purpose leading to their commission or omission. Seldom is it made out by direct, express categorical proof. It is a canon of criminal law that felonious purpose or intent is seldom established by direct evidence, but circumstantial evidence is mainly relied upon, and when the evidence is of such character it is, never deemed to impair or impeach the validity of the proof. (Amer. and Eng. Enc. Law.) And in this case we find, in the conduct and declarations contemporaneous with the transaction, the evidence to show the intent and purpose of this voyage. Claimant proceeds upon the theory that we are trying a criminal action in which the State must make out its case beyond a reasonable doubt. On the contrary, in this jurisdiction, the burden of proof is upon the claimant to show not only the neutrality of his vessel and cargo but also the innocence of his cargo and voyage.

Ho WRY, J.,

delivered the opinion of the court:

The findings show that the Sally, Villett, master, sailed from Newport, It. I., bound for Africa, where a cargo of slaves was purchased. While on the return voyage with the slaves to the neutral island of St. Thomas and from there to Georgia (pursuant to orders received from the owners of the vessel before sailing from this country) the brig was captured by a French privateer and taken to Guadaloupe, where *82the brig and everything- belonging to her was condemned as good prize. The reasons alleged for condemnation were that the brig was coming from the'coast of Africa with a cargo of blacks and was taken within 2 leagues to windward of Antigua. The prize tribunal decreed condemnation in pursuance of a resolution of the agents of the executive directory. The questions in this case are whether the United States had a valid diplomatic claim against France, and did this Government assume to pay the claim under the act of January 20, 1885 (23 Stat. L., 283).

At the time of the capture the slave trade was lawful, not only in this country, but by the law of nations, according to the Supreme Court (10 Wheat., 06). That is, when the ship sailed it was lawful to bring slaves to our own shores, but not lawful by our domestic statutes to transport inhabitants of a foreign country to another foreign country for the purpose of selling or disposing of them as slaves. It was not until 1808 that the general prohibition against domestic importation became operative. The State of Georgia was eight years in advance of the United States in that respect, for within a very short time after this adventure Georgia adopted a constitution which prohibited the future importation of slaves from Africa or any foreign place after October 1, 1798. (Sec. 11, Art. IY, Cons, of Ga., May 30, 1798. Poore’s Compilation of Constitutions.) Colonial Rhode Island was sixteen years in advance of Georgia with respect to the gradual abolition'of slavery.' (10 R. I., Col. Rec., 7.)

The grounds assigned by the decree of the prize tribunal which condemned the vessel are clear enough in language. But what was meant by the resolution of the agents of the French Directory, unless it be that no neutral coming from the coast of Africa with a cargo of blacks had a right to be within 2 leagues to windward of Antigua,, we do not know. This resolution could not make unlawful the act of a neutral engaged in commerce lawfully authorized by the country from whence the neutral sailed. The ship was, therefore, unlawfully seized and condemned, and a valid diplomatic claim against the seizing government arose in behalf of the citizen of the country to which the vessel belonged, unless treaty rights could not be claimed for the vessel, this capture *83being before tlie abrogation of the treaty between France and the United States.

But an act passed by the colonial assembly of Rhode Island provided that no citizen or resident therein should receive on his vessel, with intent to cause to be imported or transported from their native country, any inhabitants in that part of the world called Africa as slaves without their voluntary consent. (10 R. I., Col. Rec., 262.) The act was passed in 1784. But Rhode Island, by adopting the Constitution of the United States in 1792, surrendered the privilege of regulating foreign commerce. Congress alone were invested with that power. (Art. I, sec. 6, Cons. U. S.)

The vital question arises under an act (1 Stat. L., 347) approved March 22, 1794, by which Congress prohibited the importation of the inhabitants of any foreign kingdom, place, or country to another port in a foreign country for the - purpose of selling or disposing of such inhabitants as slaves.

What, then, was the purpose of the parties? The intent is the essence of the controversy, and by this intent the act must be governed in the absence of any effort to sell or dispose of the cargo. Was it the purpose of the owners to send or the intent of the agents of the owners to go to a foreign country to procure and transport any of the inhabitants of that country to another foreign country to sell or dispose of such a cargo as slaves, or was it the design to bring this cargo to the domestic port of Savannah, Ga. ?

Rejecting as inadmissible the testimony offered by claimants to show the special reason for attempting to put into St. Thomas, we pause long enough in this connection to say that if there is any proposition better established than another in connection with spoliation cases under the act of our jurisdiction it is that which excludes from consideration memorials, affidavits, and ex parte statements made by the shipowners of those days, and others in their behalf, long after the occurrences to which they are supposed to relate. (The ship Parkman, 35 C. Cls., 406; *The*Hiram, Whitney, 41 *ibid.,*12.)

The competent evidence offered does establish, however, that the return voyage of this ship was to St. Thomas and from thence to Georgia, pursuant to orders. Out of this *84alone we are unable to make the act of the parties an’ unlawful act. The home port was Savannah, Ga. That was the place of ultimate destination. It was lawful to make it so by the owners, and it was unlawful to order a stop on the way in the port of any foreign country for the purpose of doing that which might lawfully be done at home. The lawful character of the act under such orders must be presumed. The unlawful character can not be inferred, but must be proved. • The statute, being highly penal in its terms, must be strictly construed. The courts can not search for an intention not suggested by the language of'the orders and the conduct of the master under them.

It is not reasonable to believe that the purpose existed on the *part*of this shipowner when the sailing orders were given, or on the part of the shipmaster when he attempted to execute them, to carry these persons from the Gold Coast to foreign territory and there endeavor to sell them as slaves, because it appears that the market was wanting at the time in this ^foreign country. France, in following the doctrines of her Revolution, had abolished colonial slavery in 1193, and though Napoleon attempted to undo the work of the convention, slavery for a time did not exist by law. From 1794 until the Consulate preceding the First Empire the institution did not lawfully obtain in the possessions of the French. Its sickly existence in the West Indies about the time of this seizure forbids the belief that attempts to land and sell savage blacks would have met with success. Though slavery did exist in a small way in St. Thomas until a later period, the island itself ivas neutral at the time of the seizure of this vessel. If anybody understood 'the conditions and hazards surrounding such an attempt to sell slaves there, this shipmaster and the owners undoubtedly did.

The recitals of the decree confirm the want of market opportunity in the foreign pjort. When the authorities took possession of the cargo the captives were not sold, but put to work on the national plantations.

There is a final view to be noted which strengthens the conclusion that the vessel was not violating the prohibitive act under consideration. The statutory bond given before the clearance of the vessel for the lawfulness of the voj^age *85was subsequently canceled at the Treasury. The officials charged with that duty must have been satisfied that the obligation of the bond had not been infringed.

Reluctant as the court is to deal with this ancient demand, not merely because of the nature of the ship’s employment, but because of the doubts suggested as to the intent of the master in making for St. Thomas, there is nothing to do but to give effect to the will of Congress. For the discharge of its duty the court does not need to be reminded of the words of Chief Justice Marshall, who, speaking for the Supreme Court in a case where the right of a foreign vessel engaged in the slave trade was asserted as against an American cruiser, said that the court must not yield to feelings, but must obey the mandate of the law. (The Antelope, 10 Wheat., 114.) Still less does the court need for the performance of its duty the argument of counsel that the question of the moral nature of the business of shipping-slaves at the time of this capture has no proper place in the determination of the rights of the’ parties. True, this argument emphasizes the respectability of the traffic at the time (Rhode Island alone having. 150 vessels engaged in it in 1770) ; that the trade in human species was the first wheel of commerce in Newport; that the town was built up and flourished by that trade (Spear’s American Slave Trade, Scribner, 1900, p. 19), and that if prospective purchasers could be found in Georgia for savage labor, Rhode Island shipowners were willing to violate public sentiment there and go with rum and tobacco to barter with some savage king for his subjects, to be transported where such labor could be profitably employed. The doubt has arisen as to the meaning of the sailing orders and the purpose of the master in making for the foreign^ port. There is a case where the original design and purpose of the voyage have been veiled by the pretense of the owner as well as the ship-master (the Ameclie, 1 Acton, 240), and likewise a case where, on account of the alleged tumultuous disposition of the slaves, the master altered his course to a more convenient port (the Nancy, 2 Acton, 4), and likewise a case where the vessel had touched the settlements of European nations and in attempting to make for a foreign port was *86captured (the *Ann,*2 Acton, 6). But these cases were examined in the *Antelope,*ante, and it was held that one nation would not execute the penal laws of another. It will be found upon further examination that these cases have no application beyond the real purpose which took the vessels to foreign ports, and we must turn at last to the objects in view when this ship was ordered to a foreign country to bring slaves back to our own.

There is no claim for the cargo, but the waiver does not include freight earnings. These are allowable on merchandise attempted to be brought from Africa to Savannah, Ga. Passenger rates can not be claimed for a cargo of slaves, but rates strictly for merchandise can be claimed as of the time. Freight earnings on this theory are as much a lawful claim tinder the act of our jurisdiction as the value of the vessel.

The minority of the court! is of opinion that as claimants have waived compensation for the cargo the waiver extends to freight earnings, as the vessel and cargo were owned by the same parties.

The findings of the court will be reported to Congress, together with a copy of this opinion.

Barney, J., dissents.