The daily union., 1854-12-12


this fact The cusomhouse officers saw chests and boxes
there filing up the space and coil of rope one of the
boxes But they did not require Them TO be opened they
know what they contained and they appear TO have
looked at them cursory and hasy manner and merely
for the purpose of aseeainng whether any passengers
concealed among them Some OF the witnesses In
deed suppose they contained cargo because they say
they remained there after the passengers had left the
ship
But from the slight examination given by them TO these
articles it perfectly impossible they could with certainty
determine whether the chests and boxes there after
wards the that they found there when they
boarded the vessel Indeed slight was their examna-
on that it is not very clear whether there were two or
three casks blocking up the way whether there were or
were not boxes at their sides.
1t would be contrary the first principles of justice to
convict an individual of offence upon testimony like
this 1t the power of the officers OF the government
TO have these boxes and chests opened to examine their
contents and prove positively, directly, and plainly that
they did not contain the personal luggage OF the passen
gers if such the fact and with such proof within
their reach and emitting to obtain and produce it the
be maintained upon testimony as vague and
nconcusiye as that offered and which does not speak
from the knowledge of the witnesses but consists OF
and doubtful nerences which may or may not be
correct.
The coil of rope Of which they speak proved to have
been placed there after the vessel came into port
In these remarks the III support vi
seizure have not intended embrace the testimony of
Doctor Pahmeye who Of the passengers IN the
baraue In relation to him. it is evident from his own
testimony that he is of very excabe temperament;
was engaged very violent quarre with the master and
mate of the during the passage and gives his es
mony under the influence of strong feelings Of resentment
Besides he passenger on the upper or spar deck
and his knowledge of the situation OF things between decks
was obtained for the part in occasional visits to pa
ba He'd
ry drawn to the SICK and without any particular motive
for an attentive examination of the baggage or cargo his
recoecons at the time he gave his testimony could not
be very accurate or distinct and would unavodaby be
discoored his mind by the strong feelings under
which he was acting Without intending to impeach his
integrity to impute TO him willu departure from he
truth yet would be unsafe and unjust TO act upon 1T
for he is in conflict with the evidence given by all of the
other who examined and who had better
means of knowledge they were passengers between
decks
therefore put his testimony aside; but doubt whether
if uncontradcted by Others and above all suspicion, 1t
ought to be deemed in court of justice sufficient to sup
port the seizure whcn in this cse the ofhcers OF the
custohouse had in their power to obtain positive and
ndispuabe proof by actual inspection, and yet have
omitted to do so.
1t appears indeed by the respondents own showing,
that some part of the space forward of the foremast was
illegally occupied Undoubtedly he might lawfully bring
up the potatoes and the household furniture of the psen
gers for the purpose of drying them after they had be-
come damaged wet by the storm and he might tenn
porary keep them there for that purpose But it was his
duty to remove them as soon as this object
plished for the shpowners bound to that the
ship was seawory and capable of transporting her cargo
and provisions without encroachng the space appro-
prated to the use of the passengers.
The bread hogsheads with potatoes and the chests or
boxes with bed and bedding bureaus other house
I-.t. ip1r ut fba
sonal luggage Of the passengers Nor would their con-
sent or supposed convenience justify this encroachmen
The of Congress regulating the mode of anspora-
tion onl for tho projection convenience
of the passengers but also to guard own cities from
disease and from the burden of supporting multitude of
brought shores with their health broken
the voyage by over-crowdng them in the ship feeding
| them with unwhoesone food.
And when the law has regulated the of trans
poraon and prescribed the proportion which the number
passengers shall bear the space appropriated their
use neither their assent request their supposed
convenience will justify the master in violating the provis-
ions of the act of Congress.
Ifhe articles thus illegally placed the deck occupied
the space which the law requires for five passengers the
vessel would undoubtedly be subject to forfeiture for
the whole deck sufficient for only the 1876 passengers
with which she sailed and the space for fifteen had been
off the stern if the space for five unlaw-
fully occupied in the forward part Of the vessel it would
make the passengers exceed by twenty the number which
could be legally taken board in the space occupied by
them and their personal luggage But the space occupied
by these unlawful distractions not measured Even
the number ofhogheads and of boxes chests containing
household furniture not very clearly established and
evidence Of their dimensions loose estimates very lit
tie better than conjecture When the burden of proof is
the prosecution testimony ofhs character is altogether
insufficient to convict the party.
very that the master and owners in this case
entitled any favorable construction of their acts
and motives; for it is proved beyond doubt that almost
Immediately after leaving Bremen Haven he put up the
bulkhead at the mzzenmas with 1876 passengers on board
thus wiliuly and deliberately violating the act of Com
gess by overcrowdng the space remaining for the passen
gers he had aken if his vessel had been authorized
to transport 1872 according the certificate he had OBJ
tanned This curtaiment of the space however was not
sufficiently great forfeit the vessel but quite su
make it the duty of the court scrutnize care
fully his deences and to listen with caution the excuses
he may Offer when he is protesting to act by the request of
the passengers, or for their convenience.
Yet however indefcnsible his conduct may have been
there is evidence TO justify decree of condemnation
1t has been suggested that the passengers brought on the
spar deck in what called the second cabin and the
steerage unawuy placed there and that under the
true construction of the Of Congress that deck ought
be free for and fresh air for the passengers on
the deck below And if this be the construction of the
law there clearly excess of more than twenty be-
yond the number which could be legally transported But
although the libel and and testimony all show the
number Of passengers in the cabin second cabin and steer
age the upper spar deck st this circumstance
not made charge against the master and shp-oyners
nor is the forfeiture of the ship claimed this ground