Boat Eliza and Cargo. and Circuit Courts of this Circuit, in cases where words of a similar import have been drawn into controversy and I shall therefore content myself with a bare expression of my opinion on this point, without entering into the reasons, which cogently press it upon me. The first count must therefore be abandoned. The validity of the second count depends on the true construction of 6th section of the coasting act of 18th February, 1793, chap. 8. That section provides, in substance, that every unregistered ship or vessel, of 20 tons and upwards, found engaged in the coasting trade or fisheries without being duly enrolled and licensed, if in ballast or laden with goods of domestic growth or manufacture, (distilled spirits excepted,) should pay the fees and tonnage of foreign vessels, and if having on board goods of foreign growth or manufacture, or distilled spirits, the ship and cargo should be forfeited. It is contended, that the true meaning of this section is, that every vessel not having a license for the employment, in which she is engaged, is forfeited, if she has foreign goods on board, although she has been enrolled and licensed for another employment under the act. I cannot accede to this construction. On the contrary, I think, that the language and the intent of the section may be satisfied by confining the forfeiture to unregistered vessels, found with foreign goods on board, in the coasting trade or in the fisheries, without enrolment and license for either employment. I am the more confirmed in this view by the language of the 32d section of the same act, which imposes a forfeiture for the identical offence supposed in the argument to be comprehended in the 6th section. Unless the conclusion were unavoidable, I should not incline to presume a legislative intent twice in the same. statute to enact a penalty for the same offence. This is not the only difficulty. Upon the construction urged in be Boat Eliza and Cargo. half of the United States, if a vessel licensed for the fisheries were found engaged in the coasting trade, or a vessel licensed for the coasting trade were found engaged in the fisheries, with domestic goods only on board, such vessel would, under the 6th section, be considered as incurring no penalty, and as merely subjecting herself to pay the fees and tonnage of a foreign vessel. It is clear, however, that such an employment would be a gross violation of her license, and, under the 32d section of the act, would subject her to forfeiture and condemnation. Now it seems to me difficult to maintain that construction of a statute to be a sound one, which punishes in one section, what in another section it does not deem unlawful; that it should provide for the payment of fees and tonnage, as of a foreign vessel, where it sweeps the whole property from the owner upon the ground of illegal traffic. I am therefore satisfied, that the construction of the 6th section, urged by the United States, ought not to prevail. It may not, however, be absolutely necessary to decide this point, because, if the case fall within the prohibitions of the 32d section of the same act, the forfeiture will reach the vessel; and the cargo, under either section, must share the same fate, unless saved by the redeeming proviso of the 33d section of the same act. I come therefore to the third count, founded on the 32d section. And in my judgment it is fully supported by the evidence. It is clear, that the Elisa was employed in a trade, other than that for which she was licensed. She was licensed for the fisheries, and she was employed in the transportation of merchandise for hire. This was a traffic or business wholly beside the nature and object of her license. It was a "trade" in the sense, in which that term is used in the statute, as equivalent to employment or business. Boat Eliza and Cargo. It has been argued, that the great object of the statute was, to protect the revenue, and therefore, that no trade is within the prohibition, except a trade in fraud of the reve nue. Against this construction the language of the section may be strongly urged, which makes no such exception, and where none is made by the legislature, I am not bold enough to create one. But this distinction has been directly overruled by the Supreme Court in a recent decision.' And it may therefore be considered as the settled law, that the forfeiture attaches in every case of a trade, of whatever nature and with whatever object, which is not expressly authorized by the tenor of the license. As to the intentions of Mr. Wilson in engaging in this transaction, if they were perfectly innocent, as he has endeavoured to prove, I sincerely regret the unfortunate predicament in which he has placed himself. Still, this innocence of intention can afford no protection against the penalty imposed for a breach of the act. If a law be actually violated, it is immaterial, whether the offence be by wilfulness or negligence, by deliberation or by mistake. In either case the court is bound to enforce the rigour of the law, and leave to another tribunal the more benignant prerogative of mercy, in cases where it ought to be bestowed. I feel myself bound, therefore, to condemn the vessel and her appurtenances, as forfeited. As to the wine and other articles on board, claimed by Mr. Inglee, as his own property, as they do not appear to have belonged to the master, owner, or mariners of the Elisa, they are saved from forfeiture by the proviso of the 33d section of the act, if they are not liable to duty, or the duty on them has been actually paid or secured. Such is the construction given to this proviso by the Supreme Court. As 1 The United States vs. Sloop Active, 7. Cranch, 100. 2 United States vs. Sloop Active. Ex parte, Newman. to the wine, having been purchased in the open market, a presumption of its fair and regular importation does, under the circumstances of this case, certainly arise. The other articles, being of domestic produce, are exempted from duty. I cannot however restore these articles to Mr. Inglee. He claims them, as his own property, but upon his own shewing they are the property, and were purchased with the funds, of another person. Who that person is, I will not now undertake to decide. It is sufficient that Mr. Inglee has no claim. As the cause affords very strong presumptions, that these articles actually belonged to, or were destined for the use of, the public enemy, I shall order the proceeds to be brought into court, and deposited in the registry, there to remain until the real owner shall appear and prove his right, or the United States shall choose to interpose a claim for the property as prize of war. Lest this decision should be misunderstood, I would add, that it is only in cases, where the constat of property in the claimant is rebutted in the evidence, that I should feel at liberty to retain the proceeds in court. 3 3 Vide the Aquila. 1 Rob. 37, 41. Vessel condemned. EX PARTE, NEWMAN. An alien enemy cannot be permitted to make the declaration required by law preparatory to the naturalization of aliens. J. T. Austin, in behalf of Newman, who is an alien enemy, moved the court to permit him to file his declaration, preparatory to naturalization, according to the act of 14th of April, 1802, chap. 28. Ex parte, Newman. STORY, J. The petitioner is an alien enemy, and therefore has no legal standing in court to acquire even inchoate rights. We have so held on a former application. The act of Congress of 30th of July, 1813, chap. 135, on which this motion is founded, does not apply. That act enables persons, who before the war had made the preparatory declaration, to become citizens in the same manner as if war had not intervened. But it confers no privileges on other persons. The petitioner, therefore, cannot exempt himself from the general disability. DAVIS, District Judge, concurred. Motion denied. |