The enquirer. [volume] (Richmond, Va.) 1804-1815, 1809-01-10

To tie express prD;ja; K snr the ~.latuie. whcci.
rnisscs aisa;her and diiicrc.t punishment {,r
this act
5. Tia support the tl.yd position, viz. that
such u rondlition w,s hostile TO the genius and
spirit of all our laws, upon the subject of n~aviga-
ton & commerce, tl,edefendamts' counsel entered
into a critical and historical examination of all
tthcsclawe. The Characters OF the various vessels
engaged in the trade ofthe United States, were
fststed, and they were divided into the following
classes, TO wit: Foreign, Recorded. Regis.
tered, Enrolled and Licensed vessels. The
f'i~iietges and duties enjoyed by, & imposed upon
each OF these classes of vessels, were also detail
CT 4 supported by a reference to the various stat
at.s imposing duties ON tonnage & goods, & regu-
l,tng the collection OF duties. 1t was then argu-
cd, that Congress, having distinguished these
vessels as above, and having endowed them with
Gtg'ren' privileges, and imposed upon them dF
jercnt duties, it became necessary TO establish
some standard, Whereby the one class might al.
ways be distinguished from the other by those
who were authorised TO exact the n~erfnrnn ance ut
these duties, or pe,mitted to grant these privjle-
gcs. Hence certificates of record. repi strv. aud
enrolment were introduced as constituting the
sole evidence, and fixing the standard waerebv
the different characters of vessels were to he as
certaihed. But as these documents mirht he
misused, and others not entitled to the priyiler.s
winch followed their possession, might enjoy
such privileges by obtaining the documents
Su'ho an, SUCH lf1uUS, bends
were required to be executed by those who FIRE,
obtained such documents. The sole object o,
these bonds being TO preserve American dccu.
ments In American hands, the condition OF such
bonds attained this object, and none other. A re-
ference to the 7th section Of the act, before stated,
"a vol. Laws US p. ls7, would establish this
position-There it would be found. that the only
conditions annexed TO a bond of ~rigistry, referred
to the proper use of her documents, and similar
proceedings were directed Ia be had in the case
OF enro'ted vessels.-These being tho only kinds
OF American vessels which: were CAPABLE of en-.
gasinS in foreign trade, and therefore OF misls.
mg such documents, the bonds for these. refer.
red to this object only. AS to licensed vessels.
thcy being nnder twenty tons, and incapabl. az
engaging in foreign trade, no misuse of tl,ei.
documents could be had to the detriment of the
revenue; and, therefore, no such bonds were
tH"c'ed from them as were required from the o.
Tiers. frauds against the public revenue Nv
smuggling, being Tic only mischief which such
vessels were capable Of committing, the cond;.
ton ofthc bond executed by those e. ,cerrcd in
a licensed vessels, referred to this object. and n
none other. Hence it was concluded. Thai tin.
insertion ct such a condition, as was found in the
present bond, was hostile TO tn. spirit of, IN ON.
laws upon the subject of navigation and com
| merce.
Having established these points, the counse,
'"r the 'rierdahts observed, that no argument.
would BE- used 10 prove that such a cordition not
a'1'r"issd Dy inc Statute, contrary to the express
sed Will OF tie Legislature and hostile to The
sPiritn I all our laws upon this subject, was So;J
IN ltse't-This port would be taken as granted
until 1t should be denied by the counsel f,r ,Le
t. states. IL the condition was VOID, no action
couldbe maintained for a breach ola void cond;-
Iion, and therefore rs the only breach ASSIGNED
Tor the forfeiture OF the bond in question was a
Dreaca OF thus condition, the present action could
not be maintained, and The demurrer mu.t he o.,
tablished.
Inc defendants, counsel concluded tie arpu-
ment by showing the absurd eff. Gets and tvronn;-
Cal consequences which would result from nor
hitting pubic officers to insert in bonds which
ury nave authority to exact ftom individuals any
condition which they thought proper, and which
the law neither required nor permitted.
The argument on the part of defendant
Doing concluded, Hay, district attorney.
he should not pretend to deny
,he truth OF the concluding argument which
NAG oeen urgedby the defendants, but would
aomitthat a condition in a bond taken by 4
PUBIC officer, which was not authorized'bv
the law. which required the bond, was void. |
and that no action could be maintained for
the breach of such condition. Whether the |
condition III the present bend was of this |
description or not, he would pretend to say at !
present. Ii the laws referred to by the dcfcn- !
ants Counsel were the oniV laws upon the
subject, the argument which had been urged
was unanswer;ble But tie bond in q ies-
ton had been taken in pursuance of in
structions received by ali the collectors in |
the United States, from the treasury dcDart-
Ment IN the year i793, shortly after. the |
enactlon OF the laws which had been refer
redtoby the counsel for the defendants-Sun-
posing that the officer Of that department |
was perfectly acquainted with the law. I'M
Ger which he was acting, when these in
structioas were given, and indeed being con- |
vinced OF this, not only from the general cha
racter OF the department itself, but from an
universal acquiescence in the form of the !
bond by every individual who had executed
such a bond for Is years past, he had not |
deencd 1t Unnecessary to examine the fern of
the BOND and to compare it with the law
winch required it upon the present occasion.
he therefore hoped the court would allow
MIN some time not only to xamine the va
rious acts OF congress upon this subject him
sell, but to consult with the officers of the Gus
toms whose duty it was more particularly
10 attend 10 such matters, in order to inform |
himsfIt II there were any other provisions |
In the laws which had been cited, or anv o.
ther statutes which applied to this CASE
L he Judge granted this application. and the |
cause was continued for several days.
On Monday last, Mr.. Hay stated to the
court That he had not only made every az
animation into the subject which he could. |
Inf bod Il. 1