THOMPSON, Circuit Justice.
This case comes up on an appeal from the district court for the Southern district of New York. The proceeding in the court below was for an alleged forfeiture of the vessel, for a violation of the act of congress of the 10th May, 1800 (3 Story’s Laws, 382 [2 Stat. 70]), which de-dares that it shall be unlawful for any citizen of the United States, or other person residing within the United States, directly or indirectly to hold or have any right or property in any vessel employed or made use of in the transportation or carrying of slaves from one foreign country or place to another; and any right or property belonging as aforesaid, shall be forfeited. The supreme court, in the case of U. S. v. Morris, 4 14 Pet. [39 U. S.] 473, have given a construction to the term “employed” as here used in this act. The question, say the court, in this case is, whether a vessel on her outward voyage to the coast of Africa, for the purpose of taking, on board a cargo of slaves, is “employed or made use of” in the transportation or carrying of slaves from one foreign country or place to another, before any slaves are received on board? To be “employed,” say the court, in anything means not only the act of doing it, but also to be engaged to do it, to be under contract or orders to do it. And this is not only the ordinary meaning of the word, but has frequently been used in that sense in other acts of congress. That the vessel in question was employed in the transportation of slaves within the meaning of the act of congress, if she was sailing on her outward voyage to the African coast, in order to take them on board, to be transported to another foreign country. That the Catharine was an American vessel, sailing under the American flag, and documented as an American vessel, is not denied; and the claimant, Charles Tyng, who interposes his claim as owner, was an American citizen. This would seem to bring the case directly within the prohibition in the* act, and subject the vessel to forfeiture; and. indeed, the district judge in the court below, declares that he should have no difficulty, upon a careful review of the facts and circumstances, in deciding that the charge of the libel had been fully sustained against the vessel, if the charter party and her outfit, and the proceedings under it, were the controlling facts in the case. That the pertinency and weight of a similar class of facts and circumstances were fully considered by the court in the case of The Butterfly [unreported], recently decided in this court, where the vessel was condemned; and the learned judge adds, that some particulars exist here which would probably be regarded as rendering the infer-enees and presumptions then, adopted and recognized, still more direct and conclusive; but that it seemed to him that the enterprise assumed a new character subsequent to the execution of the charter party. That there is nothing in the act inhibiting an American vessel from carrying any description of cargo to the coast of Africa; she may be legitimately let on freight or chartered for such a voyage. If everything she undertakes to do as a vessel-of the United States, be to carry out and deliver a cargo, she would not. in fulfilling such an engagement, come within the prohibitory enactments of the statute. The statute reaches her only when the evidence shows her outward voyage is only in part fulfilment of her employment as an American vessel. which is to be continued and consummated by transporting slaves into some other foreign country.
I am not disposed to give a construction to this act which will interdict an American vessel from- carrying out a cargo, and delivering it upon the coast of Africa, if unconnected with the subsequent employment of the vessel in the transportation of slaves; but i am not prepared to admit that such subsequent employment must be in the character of an American vessel, in order to bring her within the prohibition in the act." If the circumstances are such as to warrant the conclusion that the outward voyage, under the American character and ownership, was planned and undertaken- with a view, and under an arrangement, that the ownership and character were to be changed on the arrival of the vessel on the coast of Africa, and there to be employed in the transportation of slaves, such vessel would clearly come within the mischief, and. I think, within the true intent and meaning of the act of congress.
There can be no doubt but that a bona fide sale of a vessel, to be delivered at any given place upon the coast of Africa, unconnected with the ulterior employment of the vessel, and not in aid of an employment in the transportation of slaves, would not subject her to forfeiture within this act of congress; but where the voyage is commenced and prosecuted under strong and suspicious circumstances, accompanied with preparations, and the vessel laden with a cargo such as are usually employed in voyages of this description. it imposes no unreasonable hardship upon a party to call upon him to explain and remove such suspicious circumstances. If the adventure is innocent, it may easily be shown to be so. The language of the supreme court, in the case of The Josefa Se-gunda, 5 Wheat. [18 U. S.] 35(5. is very strong on this point.5 In the execution of these laws (the suppression of the slave trade), no vig[339]*339ilance-can be excessive, and restitution ought never to be made but in eases which are purged of every intentional violation by proofs the most clear, the most explicit and unequivocal. But let us look a little at the circumstances of this case, and see whether they are not such as call upon the party to give a more satisfactory explanation. The claimant, Charles Tyng, alleges that he is a citizen of the United States, residing in Havana since the year 1837, and engaged in the business of a ship-broker and commission agent; that some time in the latter part of Hay, 1839, the schóoner Catharine, an American vessel, arrived at the Havana, under the command of William .T. Wedge, a citizen of the United States, who applied to him. and represented that he was authorized by R. W. Allen and John Henderson, citizens of Baltimore, and owners of the Catharine, to effect a sale thereof, and employed him for that purpose. That he succeeded in effecting a sale to the house of Don Pedro Martinez & Co.; which sale, however, owing to some misunderstanding, fell through. He, however, feel-. ing confident that the bargain would be consummated, nad advanced the purchase-money to Wedge, and he had returned to Philadelphia, after having made him his substitute under the letter of attorney from Allen & Henderson. He afterwards effected a sale of the vessel to Don Teran. of Havana, but had previously chartered her to one Thrasher, who agreed so to modify his charter party as to meet the terms of sale to Don Teran. Under these circumstances, the Catharine sailed from the Havana, on her voyage to the coast of Africa, and was captured by the Dolphin, a British armed vessel, and brought into the port of New York.
These are the general outlines of the case; but a more particular examination of the various circumstances are necessary to a proper understanding of the transaction.
It is proper, in the first place, to notice, that although the claimant, Charles Tyng, was originally an authorized agent to sell the vessel for Allen & Henderson; yet they, having received the purchase-money from him, through Capt. Wedge, refused to refund it, and threw the vessel upon his hands. He. therefore, interposes his claim as owner, and alleges himself to be such. His sale to Teran bears date the 25th of June, 1839, and was for the consideration of 810.000, provided the. vessel was delivered to him at the port of Bona, on the coast of Africa, on or before the 1st day of October. Part of the purchase-money was to be paid in advance, and the balance on receiving satisfactory evidence of the delivery of the vessel at Bona; the said Charles Tyng being left at liberty to load or charter the vessel until her delivery at Bona; the money advanced to be refunded to Teran. in case of failure to deliver the vessel at Bona on or before the 1st of October. The vessel having been captured before her arrival on the coast of Africa, the sale and transfer of the property in the vessel was never consummated, but remained in the original owner; and whether that ownership was in the house in Baltimore or in Tyng, is immaterial; though Tyng asserts himself- to be the owner, and must be dealt with as such. He was the owner on the outward voyage, and at the time of the capture. If he was such owner, and the vessel was employed in the transportation of slaves, according to the decision of the supreme court in the case of U. S. v. Morris [14 Pet. (39 U. S.) 464], how does the act of congress affect his interest in the vessel? It declares that it shall be unlawful for any citizen of the United States, directly or indirectly to hold or have any right or property in any vessel employed or made use of in the carrying or transportation of slaves from one foreign country or place to another; and any right or property belonging' as aforesaid, shall be forfeited. The forfeiture attached upon the violation of the prohibition— and that violation occurred the instant the vessel was employed in the transportation of slaves, or, in other words, at the commeneement of the voyage, if such voyage was pros-eeuted with the view, and for the purpose of transporting slaves from one foreign country or place to another foreign country or place, That such was the purpose for which this vessel was purchased by Teran, and was proceeding to the coast of Africa, admits of but little doubt. It was intimated on the argument, that there was no such place as Bona on the west coast of Africa, where the slave trade is carried on; and if the vessel was to be delivered at Bona, on the coast of Algiers, it afforded no ground of suspicion. But this suggestion was so utterly improbable, that it was not pressed there, and is entitled to no consideration. That there is such a place as Bona, (as known and understood by the parties,) on the west coast ,of Africa, cannot admit of a doubt.
The charter party entered into between the claimant and Thrasher, bears date on the 15th day of June, 1839. for a voyage from Havana to Isle of Principe or other port or ports on the coast of Africa, as the agent of the charterer, may direct; the charterer to provide a crew, and furnish them with all necessary provisions. &e., for their maintenance during the voyage, and to pay all port charges: the charterer to pay 8300 per month for eight months, and if the vessel should be at sea at the expiration of said term, the charter party to continue until her arrival, and the cargo shall be discharged. The charterer gave to Capt. Peterson, the master of the vessel, instructions to proceed to the Isle of Principe, and on his arrival there, to consign the vessel and cargo to Joseph Perey-[340]*340ra, and deliver to him the certified invoice enclosed in the letter ’of instructions, and giving him directions implicitly to obey the instructions of Pereyra. And in his letter of instructions he says: “A number of persons having applied to me for passage out in the schooner, I have consented; but you will take care that their passports- are in order, and that there are no circumstances attending them which will be likely to bring you into the least difficulty.” Pereyra, the consignee of the charter, was at Havana-, and went out as supercargo. It appears, from the deposition of Robert H. Dundas, mate of the Dolphin, that when the Catharine was captured, the witness demanded of the captain his papers, and a number were delivered up, which are unimportant to be noticed here. Soon after, Lieut. Holland came on board the Catharine, and Capt. Peterson was searched, and there was found concealed on his person a certain paper, which among the exhibits is marked No. 33, and which will be hereafter noticed. Prom this deposition of the mate, it appears that the crew of the Catharine consisted of eight persons, with American protections, including the captain, and about twenty or twenty-five foreigners, mostly Spanish and Portuguese; that six or eight men would be quite sufficient to navigate the Catharine in a lawful trade; that there was found on board a large boiler or cooking apparatus, sufficiently large to have cooked for three hundred people; a quantity of lumber, which was prepared and numbered for laying a slave-deck, and could easily have been put up aá a slave-deck in a few hours after the cargo was discharged; a number of leagers were found on board, some made up and some in shooks—about nine were made up, and materials for about six more; each would contain five or six hundred gallons. There were found on board about five hundred and seventy wooden spoons, similar to those used in slave vessels; there were thirty-eight large tin dishes,- and a number of small ones; that the equipments above mentioned are such as are usually found on board of slave vessels, and he has never seen them elsewhere. They found no irons, but they are generally concealed in the lower part of the vessel; and from the evidence taken in this court upon the appeal, it appears that two bags of iron manacles were found concealed under the cargo; one was counted and contained one hundred and seventy-five, and the other appeared to be about the same size. The mate further testified, that the Catharine was captured three or four miles from Cape St. Pauls; that the cargo found on board was such an one as an honest trader would have on board, trading with the coast of Africa, and it was also such an one as a slaver would have on board; that the lumber and large boiler would excite suspicion. The document before referred to, which was found on the person of the master, although without date or signature, is deserving of notice; it is as follows; “The main thing for you to do on this voyage is to be ready, in case you are boarded by a man-of-war, to show your log-book, which must be regularly kept from the time you leave here, your ship’s papers, your charter party for the voyage, your ship's roll and instructions; and you are, in that event, to take all command with your American sailors, according to your roll, all the others are to be passengers. You are to be very careful that in case of any cross-questions you do not commit yourself, but always stick to the same story. When the vessel is discharged, you must at once cut your register in two pieces. One piece you must enclose direct, and send to Messrs. Thomas Wilson & Co., Baltimore; the other piece you will bring with you, and give to me when you return here. You must be very particular about that, and do not let any time pass after the cargo is out before you cut the register in two pieces, and be careful to keep them separate. Throw one piece overboard if you are obliged to by being boarded by a man-of-war.”
It is not very certain from whom this document emanated. It must have been front some person having an interest in the vessel or in the voyage, and most probably either Thrasher, the charterer, or Teran, the conditional purchaser. The language as to. the disposition of the register would seem more-appropriately to come from Teran, who was to become the owner. But from whomsoever it came, being found on board the vessel, and forcibly taken from the master, it was a document connected with the voyage, and bears evident marks of suspicion that the adventure was not in reality what it purported ostensibly to be, a fair and legal voyage to-the coast of Africa. If it had been, no disguise would have been necessary. The direction, in case of being boarded by a man-of-war, to take all command with the American sailors, and all the others to be passengers, shows that they were not in reality passengers, but connected with the vessel, and were to assume the character of passengers as a disguise. It is, in the first place, highly improbable that any persons should be going-out to that part of the coast of Africa as mere passengers. But considering them connected with the ulterior employment of the vessel in the transportation of slaves, their being on board is easily accounted for. When a cargo of slaves was taken on board, it would require the vessel to be manned by a greater number than would be required for the mere navigation of the vessel. From a careful examination of the proofs in this case, I am satisfied that this vessel was chartered, fitted out and laden at Havana, with intent to be-employed in the slave trade, prohibited by the act of congress of the 10th of May. 1800. And the circumstances connected with and attending the outward voyage, in my judgment. lead irresistibly to the conclusion that the arrangement made with respect to the-[341]*341conditional sale of the vessel, and the delivery of the possession at Bona, was a part of the contrivance co avoid the interruption of the adventure by capture. If this was a real and bona fide sale of the Catharine, it is a little remarkable that no person is designated to whom possession was to be given at Bona. Teran, the purchaser, was in Havana, and would not himself take the possession. It appears by the letter of instructions to Capt. Peterson, from Thrasher, the charterer, that the vessel and cargo were to be consigned to Pereyra. who went out as supercargo. But there is nothing showing any connection between him and Teran. If the outward voyage of this vessel to the coast of Africa was unconnected with the subsequent employment of the vessel in the transportation of slaves, it certainly requires explanation why she was so peculiarly fitted, in every respect, for the transportation of slaves; and, unexplained, they lead irresistibly to the conclusion that the whole was one connected scheme to send out this vessel to be employed in the transportation of slaves. If this was a concerted plan between Thrasher and Teran in the purchase and charter of the vessel, the more easily to elude capture and condemnation, it is difficult to conceive how Tyng, the claimant, could have been ignorant of the object and purpose for which this arrangement was made, and he must, therefore, be considered a party to it, and the whole must be taken to be one continuous enterprise; and if so, the mere change of property in the vessel after her arrival on the coast of Africa, could not legalize the transaction. The penalty was incurred, and the forfeiture attached from the very inception of the voyage, if it was commenced for the purpose of taking on board and transporting slaves. It is true that the penalty of this act of congress is levelled against American property employed in the manner prohibited. But I cannot think that the confiscation is limited to the American interest at the time she is engaged in the actual transportation of slaves. If such is the construction to he given to this act, it may be evaded with the utmost facility in every case. I cannot yield to the construction that the whole adventure must be performed whilst the vessel retains her American character and ownership. Where the change of ownership is a part of the scheme, the forfeiture attaches upon all interests concerned. The vessel becomes tainted with the offence wherever she may go, or into whatever hands she may fall. The ownership of this vessel, on her outward voyage, was certainly American The transfer of the title never did take place, the vessel never having arrived at Bona. The American interest was, therefore, forfeited, within the express terms of the law; and if the arrangement made with Teran, the purchaser, was for the purpose of evading the penalty of our law, he cannot claim any protection of his interest in the vessel in the courts of this country.
I am, accordingly, of opinion that the vessel became forfeited under the act of congress, and that the decree of the district court must be reversed, and a decree of condemnation entered.
Under the view of the case taken by the district judge, it did not become necessary to pass upon the question, whether the claimant, Tyng, has shown a lien in respect to his advances to the- owner, which would be protected in case of condemnation of the vessel. But although, according to my view of the ease, a decree of condemnation has passed against the vessel, I cannot conceive on what grounds the claimant can be entitled to his claim for advances. His whole claim rests upon his setting himself up as the sole owner of the vessel, which has been thrown upon him by her former owners, by reason of the first sale made by him to Martinez & Co.; the purchase-money having been paid over by him to them. It is the interest, therefore, of the claimant which has been adjudged forfeited; and a decree in his favor for the ad-vanee made by him, which was the whole purchase-money, would be directly repugnant to the decree of condemnation. The grounds upon which condemnation has been pronounced is, that he was an offending party, and implicated, in the whole arrangement made touching the adventure; and if so. he comes with an ill grace to ask for the protection of his interest, after being defeated in his illegal undertaking.
Nor do I see how the seamen's claim for wages can be sustained as a lien upon the vessel, according to the view taken by the supreme court of this law, in the case of U. S. v. Morris [supra]. Although they have in their claim denied having any knowledge that the vessel was to be engaged in any unlawful enterprise, yet nothing has been shown by them in any manner supporting this denial; and the circumstances disclosed, certainly show a prima facie case leading to a contrary conclusion. The two seamen who have petitioned for an allowance of their wages, are William Michael and .Tames Pox-croft. I do not find their names on the crew-list, or in the shipping articles; but assuming them to have been a part of the crew, they must have known that the vessel was going oji a voyage to the coast of Africa. There is no pretence of any misrepresentation to them in this respect. The shipping articles describe the voyage to be from Havana to the Isle of Principe, or to trade to other ports on the west coast of Africa, and for a voyage not to exceed eight months. No mention is made of a return of the vessel to Havana or elsewhere. But, from anything appearing on the face of the articles to the contrary, their services were to terminate on the coast of Africa, and they left there, or that they expected to be retained on board the vessel, in whatever service she might be engaged at the end of the eight months. This latter expectation was most likely what they hoped [342]*342to realize; and this affords very strong pre^ sumptive evidence that they understood, or had reason to believe, that the vessel was to be employed in the transportation of slaves; and if so, they were guilty of a criminal of-fence_ within the act of congress, now under consideration. Their claim for wages must, accordingly, be denied.
NOTE 1. For a full discussion of the intent of the act of congress of 1820. relative to the slave trade, see U. S. v. Battiste [Case No. 14,545].
NOTE 2. The statutes, of the United States, on the subject of the slave trade, are as follows:—Be it enacted by the senate and house of representatives of the United States of America in congress assembled, that no citizen or citizens of the United States, or foreigner, or any other person coming into or residing within the same, shall, for himself or any other person whatsoever, either as master, factor or owner, build, fit, equip, load or otherwise prepare any ship or vessel, within any port or place of the said United States, nor shall cause any ship or vessel to sail from any port or place within the same, for the purpose of carrying on any trade or traffic in slaves, to any foreign country: or for the purpose of procuring from any foreign kingdom, place or country, the inhabitants of such kingdom, place or country, to be transported to any foreign country, port or place whatever, to be sold or disposed of as slaves: and if any ship or vessel shall be so fitted out. as aforesaid, for the said purposes, or shall be caused to sail, so as aforesaid, every such ship or vessel, her tackle, furniture, apparel and other appurtenances, shall be forfeited to the United States; and shall be liable to be seized, prosecuted and condemned, in any of the circuit courts or district court for the district where the said ship or vessel may be found and seized. 1 Stat. 347—349. § 1. That all and every person, so building, fitting out. equipping, loading or otherwise preparing or sending away any ship or vessel, knowing or intending that the same shall be employed in such trade or business, contrary to the true intent and meaning of this act, or anyways aiding or abetting therein, shall severally forfeit and pay the sum of two thousand dollars, one moiety thereof to the use of the United States, and the other moiety thereof to the use of himpr her who shall sue for and prosecute the same. ' Id. § 2. That the owner, master or factor of each and every foreign ship or vessel, clearing out for any of the coasts or kingdoms of Africa, or suspected to be intended for the slave trade, and the suspicion being declared to the officer of the customs, by any citizen, on oath or affirmation, and such information being to the satisfaction of the said officer, shall first give bond with sufficient sureties, to the treasurer of the United States, that none of the natives of Africa, or any other foreign country or place, shall be taken on board the said ship or vessel, to be transported or sold as slaves in any other foreign port or place whatever, within nine months there-'after. Id. § 3. That if any citizen or citizens of the United States shall, contrary to the true intent and-meaning of this act. take on board, receive or transnort any such persons, as above described in this act. for the purpose of selling them as slaves, as '.foresaid, he or they shall forfeit and pay. for each and every person so received on board, transported or sold as aforesaid, the sum of two hundred dollars, to be recovered in any court of the United States proper to try the same; the one moiety thereof to the use of the United States, and the other moiety to the use of such person or persons who shall sue for and prosecute the same. Approved, March 22. 1794. Id. $ 4. Be it enacted by the senate and house of representatives of the United States of Ameriea, in congress assembled, that from and after the passing of this act. it shall not be lawful to import or bring, in any manner whatsoever, into the United States, or territories thereof, from any foreign kingdom, place or country, any negro, mulatto, or person of color, with intent to hold, sell or dispose of any such negro, mulatto, or person of color as a slave, or to be held to service or labor: and any ship, vessel or other watercraft. employed in any importation as aforesaid, shall be_ liable to seizure, prosecution and forfeiture. in any district in which it may be found; one-half thereof to che use of the United States, and the other half to the use of him or them who shall prosecute the same to effect. 3 Stat. 450. § 1. And be it further enacted, that no citizen or citizens of the United States, or any other person or persons, shall, after the passing of this act. as aforesaid, for himself, themselves, or any other person or persons whatsoever, either as master, factor or owner, build, fit, equip, load or otherwise prepare any ship or vessel, in any port or place within the jurisdiction of the United States, nor cause any such ship or vessel to sail from any port or place whatsoever within the jurisdiction of the same, for the purpose of procuring any negro. mulatto or person of color, from any foreign kingdom, place or country, to be transported to any port or place whatsoever, to be held, sold or otherwise disposed of. as slaves, or to be held to service or labor; and if any ship or vessel shall be so built, fitted out. equipped, laden or otherwise prepared for the purpose aforesaid, every such ship or vessel, her tackle, apparel, furniture and lading, shall be forfeited, one moiety to the use of the United States and the other to the use of the person or persons who shall sue for said forfeiture and prosecute the same to effect; and such ship or vessel shall be liable to be seized, .prosecuted and condemned in any court of the United States having competent jurisdiction. Id. 451, § 2. And be it further enacted, that every person or persons so building,. fitting out, equipping, loading, or otherwise preparing, or sending away, or causing any of the acts aforesaid to be done, with intent to employ such ship or vessel in such trade ot husiness, after the passing of this act, contrary to the true intent and meaning thereof, or who shall in anywise be aiding or abetting therein, shall, severally, on conviction thereof, by due course of law, forfeit and pay a, sum not exceeding five thousand dollars, nor less* than one thousand dollars, one moiety to the use of the United States, and the other to the use of the person or persons who shall sue for such forfeiture and prosecute the same to effect, and shall, moreover, be imprisoned for a term not exceeding seven years, nor less than three years. Id. 8 3. And be it further enacted, that if any citizen or citizens of the United States, or other person or persons resident within the jurisdiction of the same, shall, from and after the passing of this act. take on board, receive or transport. from any of the coasts or kingdoms of Africa, or from any other foreign kingdom, place or country, or from sea. any negro, mulatto or person of color, not being an inhabitant, nor held to service by the laws of either of the states or territories of the United States, in any ship, vessel. boat or other water-craft, for the purpose of holding, selling or otherwise disposing of such person as a slave, or to be held to service or labor, or be aiding or abetting therein, every such person or persons so offending, shall, on conviction by due course of law. severally forfeit and pay a sum not exceeding five thousand, nor less than one thousand dollars, one moiety to the use of the United States, and the other to the use of the person or persons who shall sue for such forfeiture and prosecute the same to effect: and. moreover, shall suffer imprisonment for a term not exceeding seven years nor less than three years: and every ship or vessel, boat or other water-craft, on which such negro, mulatto or person of color, shall have been taken on board, received or transported, as aforesaid, her tackle, apparel and furniture, and the goods and effects which shall be found on board the same, or shall have been imported therein in the same voyage, shall be forfeited, me moiety to the use of the [343]*343United States, and the other to the use of the person or persons who shall sue for and- prosecute the same to effect; and every such ship or vessel shall be liable to be seized, prosecuted and condemned in any court of the United States having competent jurisdiction. Id. § 4. And be it further enacted, that if any person or persons, whatsoever shall, from and after the passing of this act. bring within the jurisdiction of the United States, in any manner whatsoever, any n< uro. mulatto or person of color, from any foreign kingdom, place or country, or from sea, or shall hold, sell or otherwise dispose of any such negro, mulatto or person of color, so brought in as a slave, or to be held to service or labor, or be in anywise aiding or abetting therein, every person so offending shall, on conviction thereof by due course of law, forfeit and pay, for every such offence, a sum not exceeding ten thousand nor less than one thousand dollars, one moiety to the use of the United States, and the other to the use of the person or persons who shall sue for such forfeiture and prosecute the same to effect; and, moreover, shall suffer imprisonment for a term not exceeding seven years nor less than three years. Id. 452, § 6. And be it further enacted. that in all prosecutions under this act, the defendant or defendants shall be holden to prove that the negro, mulatto or person of color, which he or they shall he charged with having brought into the United States, or with purchasing, holding, selling or otherwise disposing of, and which, according to the evidence in such case, the said defendant or defendants shall have brought in aforesaid, or otherwise disposed of, was brought into the United States at least five years previous to the commencement of such prosecution, or was not brought in, holden, purchased, or otherwise disposed of. contrary to the provisions of this act: and in failure thereof, the said defendant or defendants shall be adjudged guilty of the offence of which he or they may stand accused. Id. 453. .5 8. And be it further enacted, that any prosecution, information or action may be sustained for any offence under this act. at any time within five years after such offence shall have been committed, any law to the contrary notwithstanding. Id. § 9. And be it further enacted, that if any citizens of the United States, being of the crew or ship’s company of any foreign ship or vessel engaged in the slave trade, or any person whatever, being of the crew or ship’s company of any ship or vessel, owned in’ the whole or part, or navigated for. or in behalf of. any citizen or citizens of the United States, shall land from any such ship or vessel, and, on any foreign shore, seize any negro or mulatto, not held to service or labor by the laws of either of the states or territories of the United States, with intent to make such negro or mulatto a slave, or shall decoy, or forcibly bring or carry, or shall receive such negro or mulatto on hoard any such ship or vessel, with intent as aforesaid. such citizen or person shall he adjudged a pirate; and on conviction thereof before the circuit court of the United States for the district wherein he may be brought or found, shall suffer death. Id. tiOO, § 4. And be it further enacted, that if any citizen of the United States, being of the crew or ship's company of any foreign ship or vessel engaged in the slave trade, or any person whatever, being of the crew or ship’s company of any ship or vessel, owned wholly or in part, or navigated for. or in behalf of. any citizen or citizens of the United States, shall forcibly confine or detain. or aid and abet in forcibly confining or detaining on board such ship or vessel, any negro or mulatto not held to service by the laws of either of the states or territories of the United States, with intent to make such negro or mulatto a slave, or shall, on board any such ship or vessel, offer or attempt to sell, as a slave, any negro or mulatto not held to service as aforesaid, or shall, on the high sens, or anywhere on tidewater. transfer or deliver over, to any other ship or vessel, any negro or mulatto, not held to service as' aforesaid, with intent, to make such negro or mulatto a slave, or shall land or deliver on shore, from on board any such ship or vessel, any such negro or mulatto, with intent to make sale. of, or having previously sold such negro or mulatto as a slave, such citizen,or person shall be adjudged a pirate: and on conviction thereof before the circuit court of the United States for the district wherein he shall be brought or found, shall suffer death. Id. 601, § 4.
MOTE 3. The facts in the case of U. S. v-Morris. cited supra, together with the opinion of the court thereon, were stated by Chief .Tustice Taney, as follows-—“This case comes before us upon a certificate of division from the circuit court of the United States for the Southern district of New York, in the Second circuit. The defendant. Isaac Morris. • is indicted under the second and third sections of the act entitled ‘An act in addition to an act entitled “An act to prohibit the carrying on the slave ttade from the United States to any foreign place or country,” ’ approved on the 10th of May, 1800. The first count of the indictment charges that the defendant did, on the high seas, from the 15th of June until the 26th of August, in the year 1839, voluntarily serve on board of the schooner Butterfly, a vessel of the United States, employed and made use of in the transportation of slaves from some foreign country or place, to some other foreign country or nlace. the said defendant being a citizen of the United States. The second count charges that the defendant did. on the high seas, from the 15th day of June to the 26th day of August, voluntarily serve on board of the schooner Butterfly. being a foreign vessel employed in the slave trade: the defendant being a citizen of the United States. It was proved on the trial, on the part of the prosecution, that the schooner Butterfly, carrying the flag of the United States, and documented as a vessel of the United States, sailed from Havana for the coast of Africa, on the 27th of July. 1839. having on board the usual and peculiar equipments of vessels engaged in the transportation of slaves from the coast of Africa to other places. Before she reached the African-coast, and before any slaves were taken on board, she was captured by the Dolphin, a British brig-of-war. and c-arried into Sierra Leone: upon suspicion of being Spanish property, to be proceeded against in the mixed commission court at that place. At the time of her capture. Isaac Morris was in command of the vessel, and was described in the ship's papers and represented hánself as a citizen of the United States. The court at Sierra Leone declined taking cognizance of the case, because the vessel was documented as an American vessel: and she was then sent to New York to be dealt with by the authorities of the United States as they might think proper.
“Upon the foregoing state of facts, the judges were divided in opinion upon the four following questions, which were presented on the facts aforesaid for their decision: (1) Whether it is necessary in order to constitute the offence denounced in the second 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 the vessel of the United States, on board of which the party indicted is alleged to have served. f2) Whether it is necessary in order to constitute the offence denounced in the third section of the act of the 10th of May, 1800. above referred to. that there should he an actual transportation or carrying of slaves in a foreign vessel, on board of which the party indicted is alleged to have served. (31 Whether the voluntary service of an American citizen, on board a vessel of the United States, in a voyage commenced with the intent that the vessel should be employed and made use of in the transporting or carrying of slaves from one foreign country or place to another, is in-itself, and where no slaves had heen transported in such vessel, or' received on board her, an offence under the said second section. (4) Whether the voluntary service of an [344]*344American citizen, on board a foreign vessel, in a voyage commenced with the intent that the vessel should be employed and made use of in the transportation and carrying of slaves from one foreign country or place to another, is in itself, and where no slaves have been transported in such vessel, or received on board her. an offence under the said third section. And these points having been certified to this court, we proceed to express our opinion upon them.
■‘The second section of the act ot congress above mentioned, declares, ‘that it shall be unlawful for any citizen of the United States, or other person residing therein, to serve on board any vessel of the United States, employed or made use ot in the transportation or carrying of slaves from one foreign country or place to another: and any such citizen or other person voluntarily serving as aforesaid, shall be liable to be indicted therefor. and on conviction thereof shall be liable to a fine not exceeding two thousand dollars, and be imprisoned- not exceeding two years.’ The first and third points certified from the circuit court, depend on the construction of this section. In expounding a penal statute the court certainly will 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 oy a forced and overstrict construction. [U. S. v. Wiltberger) 5 Wheat. [18 U. S.] 95. The auestion in this case is. whether a vessel on her outward voyage to the coast of Africa, for the purpose of taking on board a cargo of slaves, is ‘employed or made use of’ in the transportation or carrying of slaves from one foreign country or place to another, before any slaves are received on board? To be ‘employed’ in anything, means not only the act of doing it, but also to he engaged to do it: to be under contract or orders to do it. And this is not only the ordinary meaning of the word, but it has frequently been used in, that sense in other -acts ot congress. Thus, for example, the second section of the act of March 3. 1825 [1 Stat. 103], entitled ‘An act to reduce into one, the several acts establishing and regulating the post-office department.’ declares, ‘that the postmaster-general, and all other persons “employed” in the general post-office. or in the care. Custody, or conveyance of the mail, shall, previous to entering upon the duties assigned to them.’ take the oath prescribed by that section. Here the persons who have contracted to perform certain duties in the general post-<jífice, are described as ‘employed’ in that department, before they enter upon the duties assigned them. So, also, in the twenty-first section of the same law. various offences, such as the embezzling oi destroying any letter, are enumerated, and the punishment prescribed, when committed by any person ‘employed in any of the departments of the post-office establishment.’ Yet it cannot be supposed that the party must be actually engaged in transacting his official duties when the letter was embezzled or destroyed. in order to constitute the offence described in this section. Again, Act July 29,1813, $ 8 (2 Story’s Laws, 1353 [3 Stat. 49]], declares, that certain vessels ‘employed’ in the fisheries, shall not be entitled to the bounties therein granted, unless the master makes an agreement in writing or in print, with every fisherman employed therein before he proceeds on any fishing voyage.- Here the vessel is spoken of as ‘employed’ in the fisheries, before she sails on the voyage. So. also, Act March 3. 1831 (4 Story’s Laws, 2250 [4 Stat. 492]), entitled ‘An act concerning vessels employed in the whale -fishery,’ authorizes vessels owned by any incorporated company, and 'employed wholly in the whale fishery,’ to be registered or enrolled, and licensed in a particular maimer, ‘so long as any such vessel shall be wholly employed in the whale fishery.’ The register nr enrollment and license, must be obtained before the vessel sails on her outward voyage to the whaling grounds: and, consequently, in that voyage she must be ‘employed’ in the whale fishery, in the sense in which these words are used in the act of congress; otherwise, she would not be entitled to the register or enrollment and license authorized by this law. In like manner, the vessel in question was employed in the transportation of slaves, within the meaning of the act of congress of May 10, 1800. if she was sailing on her outward voyage to the African Coast, in order to take them on board, to be transported to another foreign country. In such a voyage, the vessel is employed in the business of transporting and carrying slaves from one foreign country to another. In other words, she is employed in the slave trade. And any citizen of the United States, who shall voluntarily serve on board any vessel of the United States, on such a voyage, is guilty of the offence mentioned in the second section of this act of congress. It is hardly necessary to add, that ‘voluntarily,’ in this section, means, ‘with knowledge’ of the business in which she is employed. And in order to constitute the of-fence, the party must have knowledge that the vessel was bound to the coast of Africa, for the purpose of taking slaves on board, to he transported to some other foreign country. The same reasoning applies to the third section of the law, under which the second and fourth points certified to this court, have arisen. The vessel is ‘employed in the slave trade’ when sailing to the African coast for the purpose of taking the slaves on board. We. therefore, answer the first and second questions in the negative, and the third and fourth in the affirmative:, and it will be certified accordingly to the circuit court.