1. A vessel begun to be fitted, equipped &c., for the
purpose of a slave voyage in a port of the United States, then
going to a foreign port, in order evasively to complete the
fitting, equipping &c., and so completing it, and from such
port continuing the voyage, is liable to seizure and condemnation
when driven in its subsequent course into a port of the United
States.
2. In libels for the alleged purpose of violating the acts of
Congress prohibiting the trade in slaves, a wide range of evidence
is allowed. Positive proofs can seldom be bad, and a condemnation
may be made on testimony that is circumstantial only if the
circumstances be sufficiently numerous and strong, and especially
if corroborated by moral coincidences.
Page 69 U. S. 384
3. Libels
in rem may be prosecuted in any district of
the United States where the property is found.
The bark
Reindeer, Cunningham, master, was forced by
stress of weather into Newport, R.I., July 11, 1862, where the
collector of the port immediately placed her in custody of a
revenue officer. On the 1st of August, he made a formal seizure of
her for violating the laws relating to the slave trade. On the 7th
of August following, the United States filed a libel and
information in the district court for Rhode Island, against the
bark, her tackle, cargo &c., in a case of seizure and
forfeiture, alleging,
First. The fitting and other preparation of the vessel
within, and causing her to sail from, the port of New York, by a
citizen or resident &c., of the United States, for the purpose
of carrying on a trade in slaves, contrary to the provisions of the
first section of the Act of Congress of 22 March, 1794, [
Footnote 1] &c.
Second. The employment and making use of the said
vessel by a citizen or persons &c., residing in the United
States, in the transportation or carrying of slaves &c.,
contrary to the provisions of the first section of the Act of 10
May, 1800, [
Footnote 2]
and,
Third. The fitting &c., of said vessel within, and
causing her to sail from, the port of New York, by a citizen or
citizens of the United States, or other person or persons, for the
purpose of procuring negroes, mulattoes, or persons of color
&c., to be held, sold, or otherwise disposed of as slaves
&c., contrary to the provisions of the second section of the
act of 20 April, 1818, [
Footnote
3] &c.
On the 28th of August, 1861, one Gregorio Tejedor, said to be a
Spanish subject, residing at Havana, and alleging himself to be
owner of the cargo and charterer of the bark, intervened, averring
that he was the
bona fide owner of the cargo and charterer
of the vessel.
On the 2d of September, 1861, D. M. Coggeshall, Sheriff of the
County of Newport, and H. P. Booth, J. E. Ward,
Page 69 U. S. 385
and Samuel Shephard, alleging themselves to be attaching
creditors of one Pearce of New York, owner of the vessel, filed a
claim and answer denying the allegation of the libel that the
vessel was a slaver. They also averred that Coggeshall, as sheriff,
on the 20th July, 1861, again on the 26th July, 1861, seized and
attached the bark by virtue of attachments duly issued out of the
Supreme Court of Rhode Island; that by virtue thereof he then
became possessed of her, and ever since has held, and, by reason
thereof, that this Court has no jurisdiction of the vessel &c.
They also averred that the acts charged were stated to have been
done at New York, and not within the District of Rhode Island, and
therefore denies jurisdiction.
During the progress of the cause, the vice-consul of the Queen
of Spain, at Boston, filed a claim, professing to intervene "for
the government of her Catholic Majesty," and claiming the bark and
cargo as the property of Gregorio Tejedor, a Spanish citizen. But
there was no sufficient evidence that he was authorized to do this
by the government of Spain or that the government participated in
the controversy in the court below.
The district court condemned the vessel, cargo &c., from
which decree,
Coggeshall, sheriff, and Booth, Ward, and
Shephard appealed to the circuit court. Tejedor also prayed an
appeal, but did not take it.
So far, therefore, as the interests and rights of Tejedor were
concerned, the decree of the district court was final, and could
not be here disturbed.
The circuit court ordered a sale of the vessel &c., and
cargo, and on the 20th of January, 1862, the marshal sold her for
$3,000 and the cargo for $7,756.52.
The circuit court heard the case on the appeal of Coggeshall,
Ward, Booth, and Shephard and affirmed the decree of the district
court, from which decree the said Coggeshall, Ward, Booth, and
Shephard appealed to this Court.
This case therefore came before this Court neither on the claim
or appeal of the alleged owner of the vessel nor on the claim or
appeal of the alleged owner of the cargo, but
Page 69 U. S. 386
on the appeal of persons who had attached -- legally or
otherwise -- the vessel &c., and cargo, at Newport, as judgment
creditors of P. L. Pearce, of New York, by virtue of process of
attachment issued out of the Supreme Court of Rhode Island against
Pearce.
The facts on which their claim arose, as derived from a full and
accurate printed statement prepared by Mr. Coffey, late Assistant
Attorney General and now special counsel of the United States in
the matter, were essentially as follow:
The bark, then on a voyage somewhere, was forced by weather, as
already mentioned, into Newport, July 11, 1861.
On the 27th of June, 1861, Pearce, of New York, confessed
judgment to H. P. Booth, in the Supreme Court, City and County of
New York, for $11,128.56.
On the 19th of July, 1861, after the arrival of the bark at
Newport, Ward, Shephard, and Booth, partners, trading as Ward &
Co., of New York, the appellants in this case, issued a writ out of
the Supreme Court of Rhode Island, at Newport, against Pearce, also
of New York, for his arrest and, for want of his body, for the
attachment of his goods &c., to the value of $500. On the 20th
of July, 1861, the sheriff returned that on that day he had
attached the bark and cargo, the goods and chattels of Pearce. The
account for which this suit was brought was for $300 cash furnished
Captain Cunningham, of bark
Reindeer, to pay off crew, on
13 July, 1861, and $50 cash to Captain Cunningham, on 15 July,
1861, in all $350, advanced after the arrival of the vessel at
Newport. On the third day of August Term 1861, the plaintiffs
obtained judgment by default for $350 debt, and costs taxed at
$9.90.
The
Reindeer was a vessel of 248 tons, with one deck
and three masts, 100 feet long, 35 feet 3 inches broad, and 11 feet
deep. She was owned by Pearce, of New York, and was commanded by W.
H. Cunningham, of the same place. Pearce was a ship chandler and
commission merchant in New York during the winter of 1860-1861, and
had the vessel stripped, calked, resheathed, and refitted previous
to her
Page 69 U. S. 387
departure on a projected voyage. She was also built with a rider
-- an arrangement for laying an extra deck. Pearce employed J. E.
Ward & Co., of New York (the claimants in this case, by virtue
of their attachment of the vessel and cargo as above stated), to
advertise and dispatch her. Under these auspices, she cleared and
sailed for Havana on the 26th of January, 1861, where she arrived
about the 20th of February following, consigned to Perez &
Martinez of that place.
J. E. Ward & Co. shipped on her to Havana, among other
things, 14,700 lbs. of
tasajo, or dried beef, and a box of
hardware. Her outward manifest exhibited, besides, twenty-two
packages of hardware.
The shipping articles, signed at New York, dated 26th of
January, 1861, described the bark
Reindeer as
"now bound from the port of New York to one or more ports in
Cuba; from thence to one or more ports in Europe,
if
required, and back to a port of discharge in the United
States, or from Cuba back to the United States."
The crew list appended showed the captain, two mates, and seven
men, of whom four deserted in Cuba, whose places were there filled.
The captain and the rest of the crew remained all the time with the
vessel, and were on her when she arrived at Newport.
The four sailors shipped in Cuba were shipped "to go a voyage to
Falmouth, from thence to one or more ports of Europe, and back to a
port of discharge in the United States."
Pearce, the owner of the vessel, arrived in Havana about the
middle of March and remained there until the 6th of May
following.
The history of the vessel at Havana was thus: she laid at Havana
from the 20th of February to the 22d of June, 1861. One of the
consignees, Martinez, stated that Pearce went there
to
sell the vessel; that he
made a contract to sell her
to Tejedor for $7,000, which Tejedor did not carry out; but that on
the
10th of May, Tejedor
chartered the vessel, by
charter party, from Perez & Martinez, after Pearce had left
Havana, for the sum of $8,500, of which Tejedor paid $4,000. Of
this, Martinez testified that $1,500 was for detention of the
vessel from 23d of March until 10th of May. A charter party
Page 69 U. S. 388
was produced dated 23 March, 1861, signed by Captain Cunningham,
"on behalf of P. L. Pearce, owner of the said vessel, and Perez
& Martinez,
according to instructions handed to them by
said owners," chartering the vessel to Gregorio Tejedor for
three years, for which Cunningham acknowledges "to have received
this day from Gregorio Tejedor" $8,500, giving Tejedor exclusive
disposal of vessel, master, and crew, and right to place his own
supercargo on board, he to bear all expenses and pay repairs.
On the 22d of June, 1861, the
Reindeer cleared at
Havana "for Falmouth, England, and for orders."
Having set sail from Havana on that day, the captain, in his
protest, swore,
"That on Tuesday, the 2d day of July, 1861, at sea, in about
latitude 31�, longitude 69�, during a squall, the
ship was caught aback and, having gained sternway, wrenched the
rudder-head and carried away the foreyard, when, finding the ship
unfit to perform the voyage, squared away for Newport, Rhode
Island, where we arrived July 11."
The location of the vessel, as above stated, when the captain
was thus compelled to put into Newport, showed her, according to
Maury's Geography of the Sea, [
Footnote 4] to have been on the route to the west coast of
Africa.
On the day after her arrival at Newport, the captain borrowed of
T. & J. Coggeshall $30 to pay the crew; on the 15th July, $60,
and on the 18th, $50, for the same purpose, making a bill, with
other advances, of $186.83. The crew were then discharged, and all
disappeared, none of them being produced as witnesses by claimant,
or otherwise accounted for. The captain drew a sight draft on
Pearce, to reimburse T. & J. Coggeshall,
which Pearce
paid.
On the arrival of the vessel at Newport, Pearce wrote the
captain (23d July, 1861), directing the bills of lading to be
forwarded to him; and he paid the wages and expenses of the
voyage.
Martinez testified that on her arrival at Havana, 20th of
Page 69 U. S. 389
February, 1861, all her cargo from New York was delivered. He
also says his house (Perez & Martinez) loaded her afterwards
for Tejedor; that everything was put on board with permits from the
custom house; that he got the permits himself from the custom house
in every instance; and that he was on the wharf when the goods were
shipped to the vessel in the lighter, and saw every package put on
board.
The list of cargo taken from the vessel showed a quantity of
articles
not on the manifest. These were casks of
high-colored paint, pickled fish, coarse salt, two barrels of lime,
and four jars of chloride of lime, cases of medicines, medicinal
herbs and lint, coarse sponges, one demijohn of disinfecting fluid,
sixty-five water pipes, part full and part empty, which appeared to
have been used as
fresh water pipes, and a quantity of
flag matting.
Her
manifested cargo was of 117 pipes of rum, 65 half
pipes of rum, 16 pipes of biscuit, 8,740 lbs. of
tasajo,
or dried beef, a large quantity of which she had brought from New
York, one box of hardware, and 19 packages of the same, wine,
brandy, gin, candles, cigars, and 200 oars. Part of the cargo
consisted of casks and packages of saucepans, cooking pans with
covers, iron spoons, thirty mess or camp kettles, three casks, each
containing iron chains from 1/4 to 3/8 of an inch in diameter, of
such length that one or two chains occupied a cask, padlocks, and
machats, or war knives. On the ship's manifest these were
described as "one bale hardware," "nineteen packages hardware."
The marshal of the United States, Sanford, found on board the
vessel, when he seized her at Newport, a package purporting to be a
sealed letter, containing several papers, among them a paper issued
from the custom house at Havana upon what is called a "sea letter;"
a letter used for the protection of vessels against the examination
of a man of war at sea, not to be opened by the captain, but only
by an officer of the customs, or an officer of a man of war. This
"sea letter," dated 22d of June, 1861, the day of the bark's
departure from Havana, declared the destination of the
Reindeer to be St. Antonio. St. Antonio is an
unimportant
Page 69 U. S. 390
island in the Cape de Verd Group, in a line from Havana to the
western coast of Africa. The other papers were custom house permits
for embarking certain articles on the vessel, one dated 22d of May,
and the other 19th of June. Both declared her to be bound for St.
Antonio, and both were obtained by Perez & Martinez, who loaded
the vessel for Tejedor.
The manifest of cargo from Havana to Falmouth reported "two
passengers, cabin," Don Pedro Garcia and Don H. A. Pinto. These
persons came with the vessel to Newport. Garcia had been captain of
a coasting vessel in Cuba, and said that he had been to the coast
of Africa after slaves, but was now a passenger. Pinto first said
that he was on board as supercargo, which he afterwards repeated;
but after he was arrested and put in jail, he denied that he was
anything but a passenger.
Page 69 U. S. 393
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
This is an appeal from a decree of the Circuit Court of the
United States for the District of Rhode Island, in a cause of
seizure and forfeiture.
The libel of information against the bark
Reindeer and
her cargo was filed in the district court on the seventh day of
August, 1861, and the transcript shows that it contains twenty
counts, founded upon various provisions contained in the several
acts of Congress prohibiting the slave trade. But the material
charges to be considered in this investigation are the
following:
1. That the vessel was, on the twenty-sixth day of January,
1861, by some person, being a citizen of the United States or
residing within the same, for himself or for some other person,
either as master, factor or owner, fitted, equipped, and prepared
within the port of New York for the purpose of carrying on trade or
traffic in slaves to some foreign country or for the purpose of
procuring from some foreign kingdom, place or country, the
inhabitants thereof to be transported to some foreign country, port
or place, to be sold and disposed of as slaves.
2. That the vessel, being owned by a citizen of the United
States, was by him at the time aforesaid, for himself as owner,
fitted, equipped, loaded, and prepared in the port of New York for
the purpose of procuring negroes, mulattoes, or persons of color
from some foreign kingdom, place, or country to be transported to
some other port or place, to be
Page 69 U. S. 394
held, sold, or otherwise disposed of as slaves, contrary to the
form of the statute in such case made and provided. [
Footnote 5]
Process was forthwith issued and duly served on the same day,
and on the twenty-eighth day of the same month Gregorio Tejedor
appeared as claimant. Referring to the claim as exhibited in the
record, it will be seen that he averred under oath that he was the
true and
bona fide owner of the cargo and the charterer of
the vessel, and the record also shows that he was allowed to make
defense. Claim was also duly filed by the appellants. They allege
in substance and effect that the vessel was owned by the Pierre L.
Pearce, and they base their claim to the vessel and cargo upon the
ground that the first named appellant, as the Sheriff of the County
of Newport, held the same, at the time of the seizure by the
marshal, under certain writs of attachment issued in favor of the
other appellants against the owner of the vessel from the state
court, and consequently they insist that the district court had no
jurisdiction of the case.
No claim was ever filed by the owner of the vessel or by any
other person in his behalf. Testimony was taken on both sides in
the district court, and after the hearing a decree was entered
condemning both the vessel and cargo as forfeited to the United
States. Claimant of the cargo and the present appellants appealed
to the circuit court of the United States for that district.
Subsequently they were heard in the circuit court upon the same
evidence, and after the hearing, a decree was entered affirming the
decree of the district court. Whereupon the claimants under the
attachment suits appealed to this Court, and now seek to reverse
the decree upon the ground that the possession of the sheriff was
prior to that of the marshal, and that such prior possession has
the effect to defeat the jurisdiction of the federal courts.
I. 1. Parties who have not appealed are not entitled to be heard
in this Court except in support of the decree in the
Page 69 U. S. 395
court below. They cannot ask for a reversal in the appellate
court, and consequently the only questions really before the Court
are those presented by the appellants as attaching creditors of the
owner of the vessel. Appeal not having been taken by the claimant
of the cargo, he must be understood as having acquiesced in the
correctness of the decree entered by the circuit court, and it has
already been stated that the owner of the vessel never made any
claim. Remark should be made that during the hearing in the
district court, the Vice consul of the Queen of Spain, resident at
Boston, professing to intervene "for the government of her Catholic
Majesty," filed a claim for the vessel and cargo as the property of
Gregorio Tejedor, but it does not appear that the claim was ever
prosecuted, and inasmuch as no appeal was taken either to the
circuit court or to this Court, it is unnecessary to comment
further upon that subject.
2. Appellants allege that Pierre L. Pearce, of the City of New
York, was the owner of the vessel, and the proofs fully sustain the
allegation. Proofs also show that the bark was a vessel of two
hundred and forty eight tons, with one deck and three masts. Her
register shows that she was a hundred feet in length and thirty
five feet in breadth, and that she was eleven feet in depth, and
the proofs also show that her construction and arrangement were
well suited for the illegal traffic in which it is alleged she was
engaged. Prior to the sailing of the vessel, she was placed on the
drydock and calked, resheathed, and otherwise repaired and fitted
for the projected voyage. After being fully repaired, she was
advertised for a voyage to Havana by James E. Ward & Co.,
shipping and commission merchants, acting as the agents of the
owner. Under these auspices she cleared from the port of New York
and sailed for Havana on the twenty sixth day of January, 1861,
where she arrived on the twentieth of February following.
Her shipping articles describe the voyage as one from the port
of New York to one or more ports in Cuba, from thence to one or
more ports in Europe,
if required, and back to a port of
discharge in the United States, or from Cuba back
Page 69 U. S. 396
to the United States. Ship's company, as appears by the crew
list, consisted of the master, William H. Cunningham, two mates and
seven seamen, all of whom were on board at the time of the seizure
except four of the seamen who deserted in Cuba and whose places
were immediately supplied by the master. They were shipped for a
voyage from Havana to Falmouth, from thence to one or more ports of
Europe and back to a port of discharge in the United States.
Counsel of the United States contend that the vessel was
evidently fitted, equipped, and otherwise prepared and caused to
sail from the port of New York to Havana with the ultimate purpose
that she should proceed to the west coast of Africa to engage in
the slave trade. As supporting that theory, they refer to the
construction and arrangement of the vessel and to the fact that the
crew were shipped not for Havana, but for a voyage from New York to
one or more ports in Cuba, and from thence to one or more ports in
Europe and back to a port of discharge in the United States, or
from Cuba back to the United States, and they also refer to the
repairs put upon the ship as tending to show that she was intended
for a long voyage.
Reference is also made to the fact that the owner, although in
the shipping business himself, employed J. E. Ward & Co. to put
the vessel up, and also to the fact that they advertised and
dispatched her as his agents. They shipped part of the cargo, and
the manifest shows that their shipment included one box and twenty
two packages of hardware, and fourteen thousand seven hundred
pounds of
tasajo, or dried beef, which it is proved comes
from Buenos Ayres, and is not an article of shipment from New York
to Havana, but is an article imported into Cuba from South America,
and is largely used for feeding negroes.
The vessel laid at Havana over four months before she received
her cargo. She was consigned to the house of Perez & Martinez,
and the latter testifies that all her cargo from New York was duly
unladen and delivered. During all that time, the master and the
crew remained on board, drawing full wages, except the four who
deserted, and their
Page 69 U. S. 397
places were immediately supplied. Pearce, the owner of the
vessel, arrived at Havana on the fifth of March, 1861, and the
proofs show that he remained there until the sixth day of May
following.
3. Theory of the claimant of the cargo in the court below was
that the owner went there to sell the vessel, and that he actually
made a contract to sell her to the claimant for the sum of seven
thousand dollars, which was not carried into effect; that the
claimant failing to make the purchase, subsequently chartered the
vessel for the term of three years for the sum of eight thousand
five hundred dollars. He produced a charter party, which is to that
effect, bearing date on the twenty-third day of March, 1861,
executed while the vessel was laying at Havana.
Expenses for repairs, wages of the master and crew, and expenses
for provisions and all other expenses were to be borne by the
charterer, but there was no change in the shipping articles or in
the crew list or in any of the ship's papers. On the contrary, the
voyage went on as it was begun at New York, and the same officers
and crew remained on board till the vessel was seized as
hereinafter explained. One of the consignees of the vessel
testifies that his firm, Perez & Martinez, afterwards loaded
the vessel for the alleged charterer, and he states that the entire
cargo was put on board under permits from the custom house, but the
list of the cargo taken from the vessel shows that a large quantity
of articles specially suited to the slave trade were not on the
manifest, and consequently it is highly improbable that they were
put on board under the sanction of public authority.
Articles not on the manifest embrace sixty five water pipes,
casks of high colored paint, pickled fish, coarse salt, two barrels
of lime, four jars of chloride of lime, cases of medicines,
medicinal herbs and lint, coarse sponges, and one demijohn of
disinfecting fluid. Her manifested cargo also is of the same
criminating character. Among the articles are one hundred and
seventeen pipes of rum and sixty five half-pipes, sixteen pipes of
biscuit, eight thousand seven hundred
Page 69 U. S. 398
and forty pounds of
tasajo, and one bale and nineteen
packages of hardware, besides wine, brandy, gin, and two hundred
oars. Part of the cargo, innocently described in the manifest as
hardware, consisted of saucepans, cooking pans, casks containing
iron chains, padlocks, and war knives.
All of these articles are proved to be used in the slave trade,
and it is difficult to resist the conclusion, that they were all
exported from the port of New York.
On the 22d day of June, 1861, the vessel cleared at Havana for
Falmouth, England, and for orders. Protest of the master, dated at
Newport, R.I., on the 12th day of July 1861, states,
"That on Tuesday, the second day of that month, at sea, in about
latitude thirty-one degrees, longitude sixty-nine degrees, during a
squall, the ship was caught aback, and having gained sternway,
wrenched the rudderhead and carried away the foreyard, when,
finding the ship unfit to perform the voyage, squared away for
Newport,"
where the vessel arrived on the eleventh of the same month.
Suggestion on the part of the United States is that the location
of the vessel as described in the protest at the time when she was
obliged to abandon the voyage and sail for a port of refuge shows
that she was on the direct route to the coast of Africa, and it
must be admitted that there is great force in the suggestion.
4. Libellants deny that the charter is a
bona fide
instrument, and as showing that it cannot be so regarded, they
refer to the fact that the alleged charterer agreed to give fifteen
hundred dollars more for the charter than the owner asked for a
full title of the vessel. Theory of the libellants is that the
whole transaction is a simulated one, and that the charter was
manufactured to conceal the real fact that the owner had sent his
vessel to Havana for the purpose of completing her fitment for the
contemplated slave trading voyage. They insist that his original
design was to set up the theory of a sale, but that he was obliged
to abandon that theory, lest he should destroy the claim of the
appellants under their attachments.
Support to the theory that the charter party is not a
bona
fide
Page 69 U. S. 399
instrument is certainly derived from the evidence in the case
that fourteen packages of stores for the vessel were shipped at New
York, on the 10th of May, 1861, by the order of the owner, and
consigned to the master. None of the packages was manifested, and
the directions were that they should not be, and they were not
landed at Havana, but were transshipped directly on board the
Reindeer. Strong confirmation of that theory is also
derived from the subsequent conduct of the owner after the seizure
of the vessel. Irrespective of any or all previous theories, he at
once, on the arrival of the vessel at Newport, assumed to treat the
vessel and cargo and the whole enterprise as his own, as appears by
his letter to the master and by his conduct in the payment of the
wages and expenses of the voyage.
When the vessel was seized, there was found on board by the
marshal a sealed package containing what is called by the witnesses
a sea letter. Such a letter is designed, as represented by one of
the witnesses, for the protection of the vessel in case she should
be boarded by an officer of the customs or an officer of a man of
war. This sea letter was dated the 22d day of June, 1861, and
stated that the destination of the vessel was not to Falmouth but
to St. Antonio, one of the Cape de Verd islands, and the custom
house permits found on board contained the same representation.
On the other hand, the voyage in the manifest is described as
one from Havana to Falmouth, and it reports two "passengers, cabin,
Pedro Garcia and Hato A. Pinto." They were on board the vessel at
the time of the seizure, and the one first named admitted that he
had once been to the coast of Africa for slaves, but insisted that
he was a mere passenger. Pinto at first admitted that he was
supercargo, but afterwards, when he was arrested, denied that he
was anything but a passenger. Neither of these persons was produced
as a witness by the claimants, and no satisfactory explanation is
given why they were not called.
Claimants not only failed to call either of the supposed
passengers who were on board, but they have neglected to call the
master or anyone of the crew, and the evidence
Page 69 U. S. 400
shows that the master has absconded. They have introduced no one
who knew what the real destination of the vessel was except one of
the consignees, and his testimony in unsatisfactory and in many
respects utterly incredible.
5. Unusual as was the conduct of the owner of the vessel in
omitting to present any claim for the same, it was even more so in
the course adopted by him to enable the attaching creditors to
obtain judgment against him for a debt contracted only four days
before he was sued. On the day after the arrival of the vessel, the
master borrowed thirty dollars of Messrs. T. & J. Coggeshall to
pay the crew; and on the fifteenth of July following he borrowed of
the same parties the sum of eighty dollars; and on the eighteenth
of the same month the further sum of fifty dollars for the same
purpose. He paid the crew and they were discharged, and thereupon
he drew a sight draft on the owner to reimburse the lenders, and
the amount was promptly paid. Attaching creditors, James E. Ward
& Co., sued out a writ of attachment against the owner of the
vessel on the 19th day of July, 1861, alleging the damages in the
sum of five hundred dollars, but the amount for which the suit was
brought is only for the sum of three hundred and fifty dollars, and
consists of two items, one dated July the thirteenth and the other
July the fifteenth, and both are for cash advanced to the master of
the vessel to pay off the crew.
Plaintiffs in that suit, it will be remembered, were the agents
of the owner in putting up and dispatching the vessel at the
inception of the voyage, and they were the shippers of the hardware
and the tasajo, as appears by the manifest. Return was made upon
the attachment suit on the 20th day of July, 1861, and the proofs
show that the defendant in the suit refused to allow counsel to
continue the case and consented that the plaintiffs should have
judgment. Taken as a whole, the circumstances attending that suit
and its prosecution afford strong grounds to infer that the purpose
of the suit was to furnish the means of defeating the jurisdiction
of the district court.
Both the district and the circuit courts were of the
Page 69 U. S. 401
opinion, that the facts and circumstances to which reference has
been made afford a clear presumption that the allegations of the
libel are true, and in that view of the case we entirely concur.
Doubt cannot be entertained that the evidence of guilty purpose,
from the inception of the voyage to the time when the vessel was
compelled by stress of weather to sail for Newport, is abundantly
sufficient to overcome every presumption of innocence to which any
such voyage can be entitled and to establish the truth of the
charges under consideration as contained in the libel.
Suits of this description necessarily give rise to a wide range
of investigation for the reason that the purpose of the voyage is
directly involved in the issue. Experience shows that positive
proof in such cases is not generally to be expected, and for that
reason among others the law allows a resort to circumstances as the
means of ascertaining the truth. Circumstances altogether
inconclusive, if separately considered, may, be their number and
joint operation, especially when corroborated by moral
coincidences, be sufficient to constitute conclusive proof.
Applying that rule to the present case, we have no hesitation in
coming to the conclusion that the finding in the court below was
correct.
II. Appellants contend in the second place that the district
court had no jurisdiction of the case, 1. because the vessel and
cargo, as they insist, were in the custody of an officer of a state
court at the time the monition was served by the marshal, 2.
because the wrongful acts, if committed at all, were committed in
the District of New York, and not in the district where the libel
was filed.
Three answers are made by the United States to the first
objection to the jurisdiction of the court.
First. They deny the fact that either the vessel or cargo was
ever in the exclusive possession of the officer of the state
court.
Secondly. They insist that the attachment suit was a collusive
one between the appellants and the owner of the vessel, and that
the same was only prosecuted as the means of defeating the
jurisdiction of the federal courts.
Page 69 U. S. 402
Thirdly. They contend that the possession of the sheriff under
civil process from a state court, as supposed by the appellants,
will not prevent the operation of the laws of the United States in
suits of forfeiture or oust the admiralty jurisdiction of the
federal courts in a case like the present, where the forfeiture is
made absolute by statute, because in such a case the forfeiture
relates back to the time of the commission of the wrongful acts,
and takes date therefrom, and not from the date of the decree.
1. Undoubtedly it was decided by this Court in the case of
Taylor v. Carryl, [
Footnote 6] that where a vessel had been seized under a
process of foreign attachment issuing from a state court, the
marshal, under process from the admiralty, issued from the district
court of the United States, in a libel for seamen's wages, could
not take the property out of the custody of the sheriff; but in
that case the sheriff had the prior and exclusive possession of the
property.
The undisputed facts, however, in this case are otherwise.
Immediately on the arrival of the vessel at Newport, the collector
placed a custom house officer on board of her, and that officer was
in the actual possession of the vessel and cargo when the
attachment was made. Both vessel and cargo were then in the custody
of the United States, and so in fact remained until the same were
sold by the marshal by the order of the circuit court. By order of
the district attorney, the collector, some days before the libel
was filed, made a formal seizure of the vessel for a violation of
the slave trade acts, and at that time the revenue officer who had
taken possession of the vessel before she was attached still had
her in custody, and he remained in possession of her until the
sale, when the proceeds were paid into the registry of the court.
Under these circumstances it is clear, we think, that the case of
Taylor v. Carryl does not apply, and that the seizure was
rightfully made.
2. Our conclusion also is, from the evidence, that the suit of
the appellants was a collusive one, and upon that ground
Page 69 U. S. 403
also we are inclined to hold that the objection of the
appellants must be overruled. Having come to that conclusion, it is
unnecessary to examine the third answer presented by the United
States to this objection.
III. Remaining objection of the appellants to the jurisdiction
is that the wrongful acts, if any, were committed out of the
district where the libel was filed. But there is no merit in the
objection, as the rule is well settled, that libels
in rem
may be prosecuted in any district where the property is found. Such
was the rule laid down by this Court in the case of
The
Propeller Commerce, [
Footnote
7] and it is clear beyond controversy that the present case is
governed by the rule there laid down.
The decree of the circuit court is therefore
Affirmed.
[
Footnote 1]
1 Stat. at Large 347.
[
Footnote 2]
2
id. 70.
[
Footnote 3]
3
id. 450.
[
Footnote 4]
Plate VIII.
[
Footnote 5]
1 Stat. at Large 347; 3
id. 451.
[
Footnote 6]
61 U. S. 20 How.
583.
[
Footnote 7]
66 U. S. 1
Black 581.
