The Portland daily press., 1869-05-07

PORTLAND
Friday Morning, May 7, 1859.
Am Important Decision Affecting the
Rights OF Fishermeu.
DISTRICT COURT, MAINE DISTRICT, Feb. t.,
1869. In ADMIRALTY. THE e. C. DREs-

case where vessel, OF the owner. master or
manager of a vessel shall be subject to men,
atty for a violation of the Revenue Laws of
the United States, 'such vessel shall be holden
for the payment of such penalty, and NAV be
seized and proceeded against summarily by
libel, to recover such penalty in any District
Court of the United States, having jurisdic-
ton of the offence"
This vessel was seized by the Collector Of
this port, for an alleged violation, in 1867, of
the revenue laws, by the master and owner
and to enforce this liability the present libel
was instituted against her.
The facts are few and undis9uted.
The schooner was duly licensed forthe fish
cries. She took Oh board at Portland as part
of her outfit quantity of salt, portion of
which was used on the trip in curing mack
erel. On her return a portion was entered at
the Custom House in Portland, there landed
and the duties paid thereon. When the mack
erel were landed for inspection and repack-
ing, ten barrels OF salt were at the same time
taken from the schooner, all of which was
then and there requisite and was necessarily
used in packing her fare of mackerel, and
thereby rendering the same merchantabfe and
marketable at this port sea-packed mackerel
as understand, ordinarily, are not sufficient
ly cured for expectation and purposes Of sale;
but on their arrival they are culled, inspected
and repacked, and whenever a fare of mack
erel is packed out, more or less new lsalt is
absolutely required both in the packing and
for the.pickle, and the evidence is indisputa-
bic that the whole OF the ten barrels which
gave rise to the present controversy, were
thus appropriated, and taken from the vessel
and entirely used for that purpose.
During all the time the salt was on board
the schooner she was not engaged in any 9th
er business than makerel fishing, but in run
ming through the straits of Canso she touched
at Port Mulgrave, place on the western shore,
for wood and water only, which she there OBJ
tanned, and this was the only place with which
she is shown to have had any communication
throughout the entire voyage.
In 1866, by C. 29S, Sec. A, Congress repealed
all laws allowing fishing bounties, but permit
ted vessels licensed to engage in the fisheries,
to take on board imported salt in bond, to be
Used il curing fish, under such regulations as
the Secretary of the Treasury may prescribe; !;
and " upon proof that said salt has been used
in curing fish, the duties ON the same shallbs
remitted." In the present case all the regu-
lations which we're at that time in force, as
prescribed by the Secretary of the Treasury,
so far as / am advised, were complied with by
the master and owners OF this vessel. This
salt was imported salt, taken from bonded
warehouse, and was duly entered at the Gus
tom House, as withdrawn from warehouse,
for the benefit Of drawback, under provisions
of Act of 1866, and bond was given that it
should be used in curing fish and should not
be relanded in the United States without
proper entry and payment of duty, at original
port of withdrawal.
The ten barrels of salt, thus used on shore,
in the repacking of the mackerel, it is claim
ed, were unladen and delivered from the ves-
sci in violation of law.
The libel, as it was originally presented for
consideration, contai led but single count
founded on the act of Congress of August 30,
1852, G. SO, by the 4th section OF which 1t was
enacted shat no goods, wares or merchan-
disc exported out OF the limits of the United
States, according TO the provisions of this
act, shall be voluntarily landed or brought
into the United States, and every person CON
ceIned in the voluntary landing or bringing
such goods into the United States shall be Ii
able to penalty of $780," This section is
limited and restricted to goods exported out
OF the limits of the United States, according
to the provisions of that act, and the penalty
is only incurred by voluntarily landing or
bringing back il to the United States, goods,
wares and merchandise which have been ex-
ported according to its provisions. A refer
ence to the previous section demonstrated be-
yond question, that the act is confined to
goods and merchandise exported by certain
routes, to ports or places in Mexico. 1t au-
tborizes goods bonded for warehonsino to ba
exnortad fo MEXICO bv either Of the desona.
ted routes. and the Sd section is applicable 10
goods SO exported. and to none other: and
the penalty prescribed for its violation is re-
stricted to this class of goods to be exported
to Mexico. 1t is therefore special enact
ment, and on its very face demonstrates that
Il was never intended to establish a rule Of
conduct regulating all goods exported ont of
the United States, prohibiting in every case
their return. and subiecting ali parties enpao-
| ed in bringing them back to the stipulated
| nenaltv
The facts of the nresent case clearly ex-
clude tbe master and owners from anv noss;-
bic liability to penaltv under tbis act II,
their proceedings in the present vovaoe and
there Is not shown the sliobfest exc1se Or ms
fi6cation under the provisions Of tbe act of
1872 for this prosecution.
When the cause was first nresented for n
bearino. unon tbis objection heino taken bv
the counsel for the claimants. the Court inti-
mated 10 the District Attorney that the libe
as II then stood could not be maintained and
tbereupon an amendment was asked for. nv
ioining a new count under the 18th section ~
tbe acf of 1899.
Such a count has been filed tbe claimants
nrotestinu aoainst its admissibil;tv Tho
record does NOT show anv consent of tbo
conrt n have been oiven to snch amenJman %
ond NV ;mnress;on Is that II was oni aIIo,.,
cd de Rene subject tn the decision of tI,e conrt
ss m lie recenfion at the final hearing hnt +
fyd .oth;na unon INV own m;nntas or AZ
docket toncR;ng this roint, and am NOT verv
nositive in INV recollection in REGARD IN n =
After a full hearing Of the cause. and 4 care
ful examination IF tbe acts Of Conorass es
AT present advised. I am satisfied thst nnddor
ali the circumstances. the amendment sbonld
not have been received. as If wonId mot sinh
serve the ends Of right and Justice. Bnt if
the prosecution was sustained thereon II
must be upon a mere technical violation of
law. entireiy uninteptiopal on the mart of all
concerned. and against which the government
was fully indemnified by its bond given on
the withdrawal of the salt. Under these cir
cumstances. when no loss could possibly he
sustained by the government. when by an ac-
ton upon its bonds if there was any valid
claim for its duties on the salt, the govern
ment could have obtained legal Construction
of the act and recovered its entire dues. the
court, think, should not by any mere discre-
tionary act on its part, aid the government in
enforcing so severe penalty as the forfeiture
of $4OO, when the entire amount of loss to
the United States, if it was entitled to its du-
ties on the salt, would not have exceeded five
dollars, as it is said.
If the court is to become the instrument of
the law in SO harsh and rigorous a case tbe
government. at least. should so present its
Claim before the court as to have The nower
locally to demand of the court sucb ;ndg-
ment. and not as favor. TO reouest f6e conSt
to allow an amendment of its proceedings
ure for causes which had never befora s,,o