Indictment under the second and third sections of the Act of
Congress entitled "An act to prohibit the carrying on the Slave
Trade from the United States to any foreign Place or Country,"
passed 10 May, 1800.
The schooner
Butterfly, carrying the flag of the United
States and documented as a vessel of the United States and having
the usual equipments of vessels engaged in the slave trade, sailed
from Havana towards the coast of Africa on 27 July, 1839. She was
captured by a British brig of war and sent into Sierra Leone on
suspicion of being Spanish property. At the time of the capture,
Isaac Morris was in command of the vessel, and was described in the
ship's papers, and described himself, as a citizen of the United
States. The vessel was sent by the British authorities at Sierra
Leone to be dealt with by the authorities of the United States.
Held that to constitute the offense denounced, in the
second section of the Act of 10 May, 1800, it was not necessary
that there should have been an actual transportation or carrying of
slaves in the vessel of the United States in which the party
indicted served. 2. The voluntary service of an American citizen on
board a vessel of the United States in a voyage commenced with
intent that the vessel should be employed in the slave trade from
one foreign place to another is an offense against the second
section of the law, although no slaves had been transported in such
vessel or received on board of her. 3. To constitute the offense
under the third section of the act, it was not necessary that there
should be an actual transportation of slaves in a foreign vessel on
board of which the party indicted served. 4. The voluntary service
of an American citizen on board a foreign vessel in a voyage
commenced with intent that the vessel should be employed and made
use of in the transportation of slaves from one foreign country to
another is in itself, and where no slaves have been transported in
such vessel or received on board of her, an offense under the third
section of the act.
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 by a forced and overstrict construction.
The defendant, Isaac Morris, was 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 Trade
from the United States to any foreign Place or Country,'" approved
on 10 May, 1800.
The first count of the indictment charges that the defendant
did, on the high seas, from 15 June until 26 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 place, the said defendant
being a citizen of the United States.
The second count charges that the defendant did, on the high
seas, from 15 June to 26 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.
Page 39 U. S. 465
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, her
register being dated 24 May, 1839, and issued by the collector of
New Orleans to Nathan Farnsworth, a citizen of the United States,
as owner, was boarded and examined, on 26 August, 1839, on the high
seas, in latitude 5�25' north, longitude 30� east,
near Cape St. Paul's on the coast of Africa, by the British brig of
war
Dolphin on suspicion of being a Spanish vessel engaged
in the slave trade in contravention of the treaty between Great
Britain and Spain for the suppression of the slave trade. That on
such examination, the vessel was found to be on her voyage from
Havana, in the Island of Cuba, which port she had left on 27 July,
1839, bound to St. Thomas, in the Island of Principe, near the
coast of Africa; that the vessel had on board twenty-four large
leagers capable of containing each from two hundred and fifty to
three hundred gallons of water; eighteen of these were in shocks --
that is, the staves were in bundle not fitted; four of them
contained water, and two contained bread; there was a quantity of
plank stowed away in the hold, similar to the planks used in
framing slave decks, but this plank could not have been fitted as a
slave deck until the vessel had discharged her cargo; and that such
leagers and slave decks were commonly found to be a part of the
equipments and fittings of vessels engaged in the slave trade on
the coast of Africa; that she had on board a full cargo consisting
of various commodities adapted either to the traffic in negroes or
to any lawful trade carried on by trading vessels upon the coast of
Africa; that the prisoner was in command of the vessel; that he was
described in the ship's papers and represented himself as a citizen
of the United States; that the rest of the ship's company were
represented in the crew list as Spaniards or Portuguese who had
been shipped at Havana; that there were also on board fourteen
Spaniards who had been received at Havana as passengers; that the
cargo had been shipped at the same place, and according to the
invoice and bill of lading was to have been delivered at St.
Thomas, in the Island of Principe, aforesaid, and appeared by the
documents to be owned by persons residing at Havana; that two log
books, one in English and the other in Spanish, were found on
board; that various documents in the Spanish language were also
found on board; that under these circumstances, the vessel was
captured by the
Dolphin, suspecting the same to be Spanish
property, and sent for adjudication to Sierra Leone to be proceeded
against in the Mixed Commission court at that place, which court
declined taking cognizance of the case on account of the vessel's
being documented as an American vessel; that she was then sent to
the port of New York to be dealt with by the authorities of the
United States as they might think proper.
No slaves were found on board the vessel at the time of her
capture, and it was testified by the witnesses for the prosecution
that from the cargo and situation in which the vessel was found,
no
Page 39 U. S. 466
slaves could have been carried or transported in her at any time
during the voyage on which she was then engaged; that it would have
been necessary to have discharged the cargo before slaves could
have been taken on board; that the vessel was short of water,
having only about eleven gallons on board when she was captured,
and that Cape St. Paul's is a common watering place on that coast,
being about five hundred miles distant from the Island of
Principe.
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:
1st. Whether it is necessary, in order to constitute the offense
denounced in the second section of the Act of 10 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.
2d. Whether it is necessary, in order to constitute the offense
denounced in the third section of the Act of 10 May, 1800, above
referred to, that there should be an actual transportation or
carrying of slaves in a foreign vessel on board of which the party
indicted is alleged to have served.
3d. Whether the voluntary service of an American citizen on
board a vessel of the United States on 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 been
transported in such vessel or received on board her, an offense
under the said second section.
4th. Whether the voluntary service of an American citizen on
board a foreign vessel on 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 had been transported in such
vessel or received on board her, an offense under the said third
section.
Which points were stated under the direction of the court, at
the request of the counsel for the parties in the cause, and
ordered to be certified into the Supreme Court of the United States
pursuant to the act in such cases made and provided.
Page 39 U. S. 473
MR. CHIEF JUSTICE TANEY delivered the opinion of the Court.
Page 39 U. S. 474
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 trade
from the United States to any foreign Place or Country,'" approved
on 10 May, 1800.
The first count of the indictment charges that the defendant
did, on the high seas, from 15 June until 26 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 of
place to some other foreign country or place, the said defendant
being a citizen of the United States.
The second count charges that the defendant did on the high
seas, from 15 June to 26 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 coasts of Africa on 27 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 carried 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 himself 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 offense
denounced in the second section of the Act of 10 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.
2. Whether it is necessary in order to constitute the offense
denounced in the third section of the Act of 10 May, 1800, above
referred to, that there should be an actual transportation or
carrying of slaves in a foreign vessel on board of which the party
indicted is alleged to have served.
3. Whether the voluntary service of an American citizen on
Page 39 U. S. 475
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 been
transported in such vessel or received on board her, an offense
under the said second section.
4. Whether the voluntary service of an American 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 offense under the said third
section.
And these points having been certified of this Court, we proceed
to express our opinion upon them.
The second section of the act of 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 of 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 by a forced and overstrict construction.
18 U. S. 5 Wheat.
95.
The question 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 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
it has frequently been used in that sense in other acts of
Congress. Thus, for example, the second section of the Act of March
3, 1825, 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
Office, are described as
Page 39 U. S. 476
"employed" in that department, before they enter upon the duties
assigned them. So also, in the twenty-first section of the same
law, various offenses, such as the embezzling or 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
offense described in this section.
Again, the Act of July 2, 1813, sec. 8, 2 Story 1353, 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 the Act of March 3, 1831, 4 Story 2256, 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 manner, "so long as any such vessel shall be wholly
employed in the whale fishery." The register or 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 of 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 offense 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
offense, the party must have knowledge that the vessel was bound to
the coast of Africa for the purpose of taking slaves on board to be
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
Page 39 U. S. 477
and the third and fourth in the affirmative, and it will be
certified accordingly to the circuit court.
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the Southern
District of New York, and on the points and questions on which the
judges of the said circuit court were opposed in opinion and which
were certified to this Court for its opinion agreeably to the act
of Congress in such case made and provided, and was argued by
counsel. On consideration whereof, it is the opinion of this
Court:
1. That it is not necessary, in order to constitute the offense
denounced in the second section of the Act of 10 May, 1800,
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.
2. That it is not necessary, in order to constitute the offense
denounced in the third section of the act of 10 May, 1800, above
referred to, that there should be an actual transportation or
carrying of slaves in a foreign vessel on board of which the party
indicted is alleged to have served.
3. That 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 been
transported in such vessel or received on board her, an offense
under the said second section.
4. That the voluntary service of an American 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 had been transported in such vessel
or received on board her, an offense under the said third
section.
Whereupon it is now here ordered and adjudged that it be so
certified to the said circuit court accordingly.
