Supreme Court of United States.
*466 The case was argued by Mr. Gilpin, Attorney General of the United States, for the plaintiffs; and by Mr. Nelson, for the defendant. Mr. Philip Hamilton submitted a written argument for the defendant.
*473 Mr. Chief Justice TANEY delivered the opinion of the Court.
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.
*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 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 place, 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 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 cognisance 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.
2. 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 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 *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 offence 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 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 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. 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 any thing, 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 3d, 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 *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 offences, 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 offence described in this section.
Again, the act of July 2d, 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 3d, 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 enrolment 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 enrolment 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 10th, 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 offence, 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, *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 offence denounced in the second section of the act of the 10th of 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 offence denounced in the third 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 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 offence 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 offence under the said third section.
Whereupon, it is now here ordered and adjudged that it be so certified to the said Circuit Court accordingly.
