author: Mr. Justice CA'TRON

text:
    The United States v. Ephraim Briggs.
    On the 2d of March, 1831, Congress passed an act (4 Statutes at Large, 472), entitled “ An act to provide for the punishment of offences committed in cutting, destroy■ing, or removing live-oak or other timber or trees, reserved for naval purposes.”
    The act itself declares, that every person who shall remove, &c., any live-oak or red-cedar trees, or other timber, from any other lands of the United States, shall be-punished by fine and imprisonment.
    The title of the act would indicate that timber reserved for naval purposes was meant to be protected by- this mode, and none other. But the enacting clause is general, and therefore cutting- and using of oak and hickory, or any other description of timber trees from the public lands, is indictable, and punishable by fine and imprisonment.
    This case came up from the Circuit Court of the United States for Michigan, upon a certificate of division in opinion between tbs judges thereof. It was before the court, and reported in 5 Howard, 208, and sent back because the point was not distinctly certified.
    On the 2d of March, 1831, Congress passed the following act (4 Stat. at Large, 472): —

      “ An Act to provide for the punishment of offences committed in cutting, destroying, ór removing live-oak or other timber or trees, reserved for naval purposes.
    “ Sec. 1. That if any person or persons shall cut, or cause- or procure to be cut,, or aid, assist, or be employed in cutting, or shall wantonly destroy, or cause or procure, to be wantonly destroyed, or aid, assist, • or be employed in wantonly destroying, any live-oak or red-cedar tree or trees,, or other timber, standing, growing, or being on any lands of the United States, Avhich, in pursuance of any law passed or /hereafter to be passed, shall have been reserved or purchased for the use of the United States, for supplying or furnishing therefrom timber for' the'navy of the United States; or if any person or persons shall remove, or cause or procure to be removed, or aid or assist or be employed in removing, from any such-lands which shall have been reserved or purchased as aforesaid, any live-oak or red-cedar tree or trees, or other timber, unless duly authorized so to do by order in writing of a competent officer, and'for the use of the navy of the United States; or if any person or persons shall cut, or cause or procure to be cut, or aid or assist. or be employed in cutting, any live-oak or red-cedar tree or trees, or other timber bn, or shall remove, or cause or procure to be removed, or aid or assist or be employed in removing, any live-oak or red-cedar trees, or other timber, from any other lands of the United States, acquired or to be hereafter acquired, with intent to export, dispose of, use, pr employ the same in any manner whatsoever, other than for the use of the navy of the United States; every such persdh or persons so offending, on conviction thereof before any . court having competent jurisdiction, shall, for every such offence, pay a fine not less than triple the value of the tree or trees or timber so cut, destroyed, or removed, and shall be imprisoned not exceeding twelve months.
    “ Sec. 2. That if the master, owner, or consignee of any ship or vessel shall knowingly take on board any timber cut on lands which shall have been reserved or purchased as aforesaid, without proper authority, and for the use of the navy of the United States; or shall take on board any live-oak or red-cedar timber cut on any other lands' of the United States, with the inteht to transport the same to any port or place within the United States, or to export the same to any foreign country, the ship or Vessel on' board of which the same shall be taken, transported, or seized, shall, with her tackle, apparel, and furniture, be wholly forfeited to the United States, and the captain or master of such ship or vessel wherein the same shall have been exported to any foreign country, against the provisions of this act, shall forfeit and pay to the. United States a sum not exceeding one thousand dollars.
    ' “ Sec. 3. That all penalties and forfeitures incurred under the provisions of this act shall be sued for, recovered, and distributed and accounted for, under the directions of the Secretary. of the Navy, and shall be paid over, one half to the informer or informers, if any, or captors where seized, and the other half to the Commissioners of the Navy Pension Fund for the use of, the said fund; and the commissioners of the said fund are hereby authorized to mitigate in whole or in part, and on such terms and conditions as they shall deem proper, and order in writing, any fine, penalty, or forfeiture incurred under this, act.”
    In'June, 1846,' the grand jury of the United States in Michigan-indicted’Fphraim Briggs for entering upon the public lands and cutting twenty white-oak trees and twenty hickory trees, &c.
    The defendant at-first demurred,-but afterwards pleaded not guilty, and the case went to trial. The jury found him guilty. The defendant then moved in arrest of judgment, and to set aside the verdict, for the. following reasons: —
    First.- Because the facts set forth in the indictment in this cause do not constitute a criminal offence, punishable by .indictment, under the statutes of. the United. States.
    Second. Because, under the statutes of the United. States, trespass on the public- lands, by cutting timber thereon, is in no case an offence punishable criminally by indictment, but is a mere civil trespass, and as such punishable only by action of trespass at common law, or debt on the statute. ■
    Third. Because the said indictment does not aver, nor was there any evidence to show, that the lands on which said timber was cut was reserved or -set apart for naval purposes, according to the provisions of the statutes of the United States!
    Fourth. Because there was no proof on the trial of the said cause that the timber cut consisted of live-oak or red-cedar trees, nor is there any averment in said indictment that any such trees were cut on the lands described in said indictment.
    Fifth. Because such verdict is contrary to evidence and the charge of the court.

      Division of Opinion.

    “ The United 'States of America v. Ephraim Briggs.
    “ The motion of defendant in arrest of judgment, and for a new trial in the case, coming on to be heard, and the same having been argued by counsel on either side, the opinions of the court were opposed as to the point, ‘ whether the offence charged and set forth in the indictment, of cutting, removing, or using for any other than naval purposes, any trees or timber standing, growing, or being on any lands belonging to the United States, whether -reserved for naval purposes or not, is, under the statutes of the United States, an indictable offence, and punishable by fine and imprisonment'.’
    “And it is ordered and directed, that this cause be certified to the Supreme Court of the United States on ’the indictment and trial, and the motion in arrest of judgment and for a new trial in the case, in pursuance of the act of Congress in such case made and provided.”
    The case was argued for the United States by Mr. Johnson (Attorney-General),
    no counsel appearing for the defendant. He contended, —
    11 That the said acts constitute an offence within the meaning of the act of 2d March, 1831, because it does embrace the cutting, &c., of timber from other .lands belonging to the United States than those reserved for naval purpose?.
    2. That it is an offence for which an indictment is a proper remedy, and the party punishable by fine and imprisonment.
    “ Wherever a statute prohibits a matter of public grievance, acts done contrary to-it are misdemeanours at-common law, and as such punishable by indictment, unless the statute expressly or impliedly excludes that remedy; and as to this, it is itrimaterial whether' the statute imposes a particular penalty for the offence or not, or whether such penalty is embraced in the same statute, or a subsequent one.” 2 Hawk., ch. 25, sec. 4; King v. Davis, Say. 163; Rex v. Boyall, 2 Burr. 832; Rex v. Harris, 4 T. R. 205; King v. Sainsbury, Ibid. 457; Rex v. Wright, 1 Burr. 543.
   Mr. Justice CA'TRON

delivered the opinion of the court.

The defendant below was indicted for cutting, with intent to appropriate to his own use, twenty white-oak trees and twenty hickory trees of the United States standing on the public lands. The jury found him guilty, and he moved in arrest of judgment, because the offence charged was not punishable by indictment; on which motion, the Circuit Court certify to this court as follows: —

“ The motion of defendant, in arrest of judgment, and for a new trial in the case, coming on to be heard, and the same having been argued by counsel on either side, the opinions of the court were opposed as to the point,' ‘whether the offence charged and set forth in the indictment, of cutting, removing, or using for any other than naval purposes, any trees or timber standing, growing, or being on any lands belonging to the United States, whether reserved for naval purposes or not, is, under the statutes of the United States, an indictable offence, and punishable by fine and imprisonment.’ ”

The case presented for our examination involves a true construction of the act of 2d March, 1831. By that act, any person, who shall cut and appropriate live-oak or red-cedar trees reserved for naval purposes, is clearly indictable, and, on conviction, may be fined and imprisoned. We do not understand this to be controverted. But the question here is, whether the term “ or other timber ” imposes the same, penalty on those who .cut other timbers, such as oak or hickory trees. It is' insisted by the reasons in arrest, that the only object of the act was • to protect, by stringent penalties, timbers- suited to shipbuilding and naval purposes,. and which had been reserved for. such public' usé; and that it is apparent from the act none other-were contemplated by Congress, as subject to protection and within the description, but live-oak and red-cedar.

To which it is answered, on the part of the United States: —

“ 1. That the said acts constitute an offence within the meaning of the act of 2d March, 1831, because it does embrace the cutting, &c., of timber from other lands belonging to the United States than those reserved for naval purposes.
“ 2. That it iis an offence for which an indictment is the proper remedy, and the party punishable by fine and imprisonment.”

The caption of the act would indicate that timber reserved for naval purposes was meant to be protected by this ifiode, and ■none other. But the enacting clause is general, and not restricted to live-oak or red-cedar, nor to timber specially reserved for naval purposes; and therefore cutting and using oak and hickory trees is indictable; and so the cutting and using of any other description of timber trees from the public lands would be equally indictable; and being so, the punishment by fine and imprisonment must follow ■ in all cases, — and thus we ¿nswer to the Circuit Court.

Order.

This cause., came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Michigan, and on the point or question on which the judges of the said Circuit Court were opposed in opinion, and tvhich was 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, that the offence charged and set forth in the indictment in this cause, of cutting, removing, or using, for any other than naval purposes, any trees-or timber standing, growing, or being on any lands belonging to the United States, whether reserved for naval purposes or not, is, under the statutes of the United States, an indictable offence, and punishable by- fine and imprisonment ; whereupon, it is now here ordered and adjudged by this court, that it be so certified to the said Circuit Court. '


source: Caselaw Access Project

author: Mr. Justice NELSON

license: Public Domain

text:
    George S. Gaines, Francis S. Lyon and his Wife, Sarah Lyon, James M. Davenport and his Wife, Alethan Davenport, Goodman G. Griffin and his Wife, Willey Ann Griffin, George Frederick Glover, Ann Gaines Glover, Louisa Davenport Glover, Mary Thompson, and Mary A. Glover, Appellants, v. Isaac W. Nicholson, Powhatan B. Thermond, Lewis B. Barnes, John T. Moseley, S. M. Goode, and John Hilman.
    Whilst an ejectment suit was pending to try the legal title to a tract of land in Mississippi, the defendants filed a bill on the equity side of the court, praying for a' perpetual injunction, upon the ground that the plaintiffs had obtained a patent . from the United States by fraud and misrepresentation.
    But the fraud is not established by the evidence, and therefore the'bill must be dismissed, and the parties remitted to the trial ¡it law.
    Where there are reservations, in Indian treaties, of specific tracts of land, which aro afterwards found to be the sections set apart for school purposes under a general law, the reservees have the better title. They hold under the original Indian title which the United States confirmed in the treaty.
    But where the reservee claimed under a float, no specific tract of land being designated for him in the treaty, this court abstains from expressing an opinion, that being the legal question pending in the court below.
    This was an appeal from the Circuit Court of the United States for the Southern' District of Mississippi.
    It was an appeal from a decree by the equity side of the court, granting a perpetual injunction upon the appellants, who were plaintiffs in an ejectment suit then pending on the law side of the court.
    In the second article of the supplement of Dancing Rabbit Creek treaty (7 Stat. at Large, 340), made on the 27th of September, 1830, there is this reservation— “ Also, one section is. allowed t.o the following persons, to wit, Middleton Mackey, Wesley Train, Choclehomo, Moses Foster, D. W. Wall, &c., to be located in entire sections, to include then- present residence and improvement, with the exception of Molly Nail and Susan Colbert, who are authorized to locate theirs on any unimproved unoccupied land.”
    On the 27th of August, 1832, D. W. Wall, one of the reservees, assigned all his right an.d title under the treaty to George S. Gaines and Allen Glover, who procured a patent for the sixteenth section to be issued to them, in pursuance of this claim under the treaty, by the President, on the 7th of December, 1838.
    In the year 1841, George S. Gaines, Francis S. Lyon, and the. heirs at law of Allen Glover, instituted’an ejectment against John Hilman, who was the tenant in possession under the trustees of the school lands.

      In 1842 these trustees filed a bill on the equity side of the court, from which the following- are extracts: —
    “ Humbly complaining, your orators would respectfully show unto your Honors, that your orators, Isaac W. Nicholson, Powhatan B. Thermond, Lewis B. Barnes, John T. Moseley, and S. M. Goode, are the trustees of the schools and school lands reserved by the acts of Congress for the use of schools in township twelve, range eighteen east, situated in the County of Kemper, in the State of Mississippi. They would further show unto your Honors, that section sixteen, in said township twelve, range eighteen east, was reserved, by the acts of Congress, for the use of schools in said township, and, being so reserved, your orators took possession of the same, and leased it to your orator, John Hilman, who went into possession of said tract of land prior to the 27th .day of March, 1841, and has continued in possession ever since until this time.
    “Your orators would further show unto your Honors, that on the 27th day of March, in the year 1841, an action of ejectment was instituted, on the law side of this honorable court, by John Doe, lessee of George S. Gaines and Francis S. Lyon, and of the heirs at law of Allen Glover, deceased, against' your orator, John Hilman, for the recovery of said section sixteen, and to'dispossess and eject your orators therefrom, which suit is still pending undetermined in said court.
    “Your orators would further show unto your "Honors, that by virtue of the second article of the supplement of Dancing Babbit Creek Treaty, entered into on the 27th day of September, 1830,'between the United States and the Choctaw tribe of Indians, certain portions of land, situated within the Territory ceded by the said Indians to th.e United States, were reserved to divers members of said tribe of Indians, and, amongst others, a section of land was reserved to David W. Wall, in the following words, to wit: — ‘ Also, one section is allowed to the following persons, to wit, Middleton Mackey, Wesley Train, Choclehomo, Moses Foster, D. W. Wall, <fcc., to be located in. entire sections, to include their present residence and improvement, with the exception of Molly Nail and Susan Colbert, who are authorized to locate theirs on any unimproved- unoccupied land.’
    “ Your orators would further show unto your Honors, that on the 27th day of August, in the year 1832, the said David W. Wall, by deed of that date, bargained, sold, and.conveyed,' to George S. Gaines and Allen Glover, all the right, title, in-, terest, and- claim of- him, the said David W. Wall, in and to a certáin reservation of one section or six hundred and fifty acres of land, made and granted to him, the said' David W. Wall, under and by virtue of the provisions of a treaty made and concluded between the United States of America and the Choctaw tribe of Indians, at a place called Dancing Rabbit Greek, in said nation, in the month of September, 1830.
    “Your orators would further show unto your Honors, that the said George S. Gaines and Allen Glover, deceased, falsely and fraudulently pretending and representing to the President of the United States that ’the said David W. Wall, at the date of said treaty, resided upon said section sixteen, in the township and range aforesaid, and had his improvement thereupon, and that they had located the reservation of said Wall upon the same on the 7th day of December, in the year 1838, procured a patent to be issued to them, conveying to them the said section sixteen, in township twelve, range eighteen east.
    “ Your orators would further show unto your Honors, that at the date of said treaty the said David W. Wall did not reside, nor had he any improvement, upon said section sixteen, as aforesaid, but resided at a long distance from the same, and had no right or title, claim or interest whatever, in said section of land, which had been reserved, as your orators distinctly and positively aver, for the use of schools in the State of Mississippi, by the laws of the United States.
    “Your orators would further show to your Honors, that the said Gaines and Glover were so well aware that they had no right to the said section of land, by virtue of their purchase from the said Wall, that they located the claim of said Wall at one time, as your orators have been informed and believe, upon another section of land near Mayhew, in Oaktibbeha County, but finding that their claim to said, last-named section would be disputed, they, in the technical language of land-mongers and speculators, lifted the same, and laid it upon said section sixteen. Your orators would further show unto your Honors, that, by virtue .of the patent thus falsely and fraudulently obtained, they have been advised that the said Gaines and Allen Glover, deceased, obtained the highest and best legal title to said section sixteen, when, in equity and justice, they have no title thereto, but the same belongs to your orators, as trustees and tenant of the schools and school lands, as aforesaid.”
    The bill' then proceeded with the usual interrogatories, prayed for a temporary injunction, and afterwards a perpetual one.
    A temporary injunction was granted.
    The respondents, in their answer, set forth the circumstances of the treaty, averred that the United States were incapable of making any grant of land which, was reserved by the treaty, and denied the alleged fraud in the following manner: —
    “ These respondents, further answering, say that the said George S. Gaines and Allen Glover, deceased, never did, jointly, nor did either of them severally or separately, falsely pretend and represent to the President of the United States that the said David W. Wall, at the date of the treaty, resided upon section sixteen, in the township and range-aforesaid, and had his improvement thereupon ; no such pretence was ever set up or representation made to the President of the United States, or any one else, by the said George S. Gaines, or Allen Glover, in his lifetime, or either of them. A reference to the record of the executive department of the government, or even to the published documents relating to th‘e public lands, Would have relieved the complainants from an .allegation so utterly false and unfounded.”
    To this answer there was a general replication.
    Some testimony was taken bearing upon the points of Wall’s residence, age, &e., but none touching the fraudulent representations alleged' to have been made in the procurement of the patent.
    On the 18th of November, 1845, the Circuit Court passed the following decree.
    “Be it remembered, that this cause came on to be heard at the present term, before the Honorable Samuel J. Gholson, judge, &c., presiding, upon the bill, answers, exhibits, agreements, and proof in the cause, and upon argument on both sides; and now, at this day, the court being sufficiently advised, and because it appears io the satisfaction of the court that the complainants are entitled to the relief prayed for by them,- it is therefore 'ordered, adjudged, and decreed, and the court doth hereby order, adjudge, and decree, that the judgment at law in the pleadings mentioned, and all attempts to enforce the same, be, and the same is hereby, perpetually enjoined; and, also, that the said defendants be, and they are hereby, perpetually enjoined from ejecting and turning out, or from commencing any other or further suit to eject and turn the said complainants, or their successors in office, out' of the possession of the section of land in the pleadings mentioned, to wit, section sixteen, in township twelve, range eighteen east, in Kemper County. It is further ordered, adjudged, and decreed, and- the court doth hereby order, adjudge, and decree, that the defendants shall, within sixty days from the date of this decree, by deed, in fee simple, without warranty, convey, quitclaim, and relinquish to the complainants and their suecessors in office, as trustees of schools and school lands, all the ■ right, title, claim, and interest which they, the said defendants, or any of them, have in and to said section of land ; and in default of such conveyance being made by said defendants in the time aforesaid, then the clerk of this court be, and he is hereby, appointed a commissioner to carry into effect that portion of this, decree directing said conveyance. It is further ordered, adjudged, and. decreed, that the defendants shall pay all the costs of this' suit. This ordered, adjudged, and decreed, this 18th of November, 1845.”
    From which decree the defendants pray an appeal to the Supreme Court of the United States, which is granted.
    The cause was argued by Mr. Lawrence and Mr. Badger, with whom was Mr. Inge, for the appellants, no counsel appearing for the appellees.
    The counsel for the appellants made the following points:—
    1. That by the treaty the whole cession passed to. the United States, subject to the reservations mentioned in the treaty, which were in the na cure of exceptions out of the grant, and, when actually located according to the treaty, took effect by relation from its date, so as not to be liable to ahy disposition by the United States; and consequently, if the sixteenth section was rightfully selected as the location of Wall’s reservation, the same could not, by any law of the United States, be set apart or appropriated to any other purpose ; and if such appropriation in fact was'made-or attempted, which is not admitted, it was void as against Wall’s claim.
    2. That, according to‘ the true interpretation of the treaty, each of the persons named in the above-quoted clause of the' supplement was entitled to a section, whether hé had a residence or not. The fact of a residence was immaterial to the right; — which was absolute, independently of residence, — and only served to determine the location where the’ party had a residence; those without residences, and the ■ two persons specially excepted out of the restriction imposed by the residence, having necessarily a right to make locations on any unimproved and unoccupied land. Otherwise, the main purpose of the clause would be disappointed, contrary to its true intent upon sound rules of construction. But if this were doubtful Upon the clause-itself, our interpretation must still prevail; beeáúse by the eighteenth article of the treaty (7 Stat. at Large, 336) it is expressly'declared and .agreed, that even well-founded doubts shall be resolved in its interpretation in favor of the Indians. And therefore, it not appearing that Wall had any residence of his own, but it being, on the contrary, proved that at the date of the treaty he was an unmarried man, without any family, and residing in the family of another person, the location of his reservation upon the sixteenth section was well and rightfully made, and the patent'properly issued.
    3. If Wall’s reservation was not rightfully located upon the said sixteenth section, yet the appellees were not entitled to relief. Their case is, in substance, that Gaines and Glover, by representing to the President of the United States that Wall had a residence in that section, fraudulently procured the grant to issue, <fce. But all such representations are denied by the appellants, and no proof is offered to sustain the charge. The appellants aver, and the fact is, that the location was made and the grant issued upon a representation of the truth as .they understood it, and with full knowledge of the facts by the officers of the government. So that, if Wall was not entitled so to locate, the case was one of mere error on the part of the government in the interpretation of the treaty, and not a fraudulent contrivance of the party to prejudge or mislead those officers. And therefore the case, as it appears, would give no ground of relief if truly stated in the bill; and if it would, yet that case does not sustain the bill as framed.
    And upon the whole, it will be insisted that the decree is erroneous, and ought to be reversed and the bill dismissed.
    The following authorities will be relied on.
    On the first point, Doe v. Beardsley, 2 McLean, 412; Stockton v. Williams, 1 Douglass, (Mich.) 547; Act of April 21, 1806 (2 Stat. at Large, 401, sec. 6); act of March 3, 1803 (2 Stat. at Large, 233, sec. 12); Opinion of Attorney-General (Ex. Doc. 2 Sess. 26th Congress), 1419.
    On the second point, Euehela v. Welsh, 3 Hawks, (N. C.) 155. In connection with the provisions of the treaty, Opinion of Attorney-General, 2 Land Laws, 188, 205.
    On the • third point, Opinion of Attorney-General, 2 Land Laws, 206.
   Mr. Justice NELSON

delivered the opinion of the court.

This is an appeal from a decree of the Circuit Court of the United States for the Southern District of the State of Mississippi.

The bill was filed by the appellees in the court below against the defendants, to enjoin proceedings in an action of ejectment brought to recover possession of the sixteenth section of township twelve, range eighteen east, County of Kemper, State of Mississippi.

By the twelfth section of an act of Congress, passed March 3, 1803,' entitled “ An act regulating the grants of land, and providing for the disposal of the lands of the United States south of the State of Tennessee ” (2 Stat. at Large, 229), the sixteenth section in each township was reserved, and appropriated to the support of schools within the same. And by the sixth section of an act of Congress, passed April 21, 1806, entitled an act in addition to the act aforesaid (2 Stat. at Large, 401), it was provided, that whenever the sixteenth section should fall upon land already granted by Congress, or claimed by virtue of a British grant, the Secretary of the Treasury should locate another section in lieu thereof for the use of schools within the township. And by an act of Congress, passed January 9, 1815, entitled “ An act to provide for leasing certain lands reserved for the support of schools in the Mississippi Territory ” (3 Stat. at Large, 163), it was provided, that the county court of each county in the Territory should appoint agents, who were empowered to lease these reserved sections for the purpose of improving the same, or for an annual rent, as they might think best; and to apply the proceeds; to purposes of education within thé township.

. The act also provided for laying out the sections into convenient farms, of not less than one hundred and sixty, nor more than1 three hundred and twenty acres each; for the removal ‘of intruders and trespassers; and also for the punishment of all persons cutting timber or committing other waste upon the tract.

The last section provided, that the leases granted by virtue of the act should be limited to the. period of the termination of the Territorial government, and should cease after the 1st of January next succeeding the establishment of the State government.

It is admitted that the appellees are the trustees of schools and school lands .in "township No. 12, duly elected and qualified under the la'ws of the State of Mississippi; and that they are charged with the care and management of the same (How. &. Hutch.. Dig., p. 125, et seq.); and also, that John Hilman, the defendant in the ejectment suit, was in possession under, a lease from the said trustees.

They had - taken possession of the section as early as 1834. The suit in ejectment was brought in 1841. .

The premises lie within the territory formerly belonging to the Choctaw nation of Indians, and which was ceded to the United States, by treaty, at Dancing Rabbit Creek, 27th September, 1830 (7 Stat. at Large, 333).

By the supplementary articles of that treaty (p. 340), certain reservations were made to Indians by name, and among others the following: — “ Also, one section is allowed to the following persons, to wit, Middleton Mackey, Wesley Train, Choclehomo, Moses Foster, D. W. Wall, <fcc., to be located in entire sections, to include their present residence and improvement, with the exception of Molly Nail and Susan Colbert-, who are authorized to locate theirs on any unimproved unoccupied land.”

D. W. Wall, one of the reservees, on the 27th of August, 1832, assigned all his right and title under the treaty to George S. Gaines and Allen Glover, who procured a patent for the sixteenth section to be issued to them, in pursuance of this claim under the treaty, by the President, on the 7th of. December, 1838.

The former, and the heirs of the latter, compose the plaintiffs in the ejectment suit in the court below, claiming under the patent; and the defendants in the bill filed to enjoin that suit by the school trustees, claiming' under -the acts of Congress above referred to.

The court below granted a-preliminary injunction on the filing of the bill, staying the proceedings ..-at law, and on the final hearing decreed a perpetual injunction ; and also, that the defendants relinquish all their right and interest in the section to the school trustees and their successors in office.

■The clause in the treaty reserving to Wall, among others, a section of the land ceded, upon a strict construction of its terms, would seem to confine the reservation to a tract, not exceeding a section, on which he resided and had made improvements at the date of the treaty; but a more liberal construction has been properly given to the clause by the officers of the government, and which was inculcated by the eighteenth article of the treaty itself, by which the reservee is- allowed a section, although not a resident at the time, and without having made any improvements upon the particular tract. In cases of residence and improvements, the location must be such as shall include them.

Wall, it seems, was a minor, and resided with his father at the date of the treaty, and therefore was not within its terms, so that "locality could be given to any particular section by a reference to residence or improvements. But under the liberal construction mentioned, the right to a section, notwithstanding, existed, ■— a right, however, to no particular tract or section, but at large, to be located upon some portion of the ceded territory, — what, in common parlance, is denominated a float.

The deed to Gaines and Glover does not profess to convey any particular section, but only his right, generally, to that amount of land reserved to him under the treaty. A location, therefore, became necessary before the issuing of the patent by the President.

The bill charges that the grantees, Gaines and Glover, in order to induce the President to issue the patent to them for the sixteenth section of township No. 12, which, it is claimed, had been appropriated by the acts of Congress already referred to, for the use of schools, falsely and fraudulently represented that Wall resided upon the same at the date of the treaty, and had made improvements thereon; thus bringing the application for the particular parcel of land within the strict terms of the treaty, and presenting a case upon which the right to it was, confessedly, paramount to any that could be pretended in the State or township, as a school reservation.

This is the ground set forth by the complainants upon which to invoke the equitable interposition of the court to set aside and annul the patent, and remove the encumbrance from their title, and to stay the proceedings at law. And undoubtedly, if the facts thus charged have been established by the pleadings and proofs, a right to such equitable interposition for the relief sought has been made out, and the decree of the court below should be upheld.

But, on looking into the answer and proofs , in. the record, there does not appear to be any evidence of the fraud or imposition alleged-; nor any thing to rebut the presumption, which we must assume till the contrary is shown, that the patent was issued with a full knowledge of all the circumstances upon which the complainants rely to invalidate it. . Fraud' is not to be presumed, and .the burden, therefore, lay upon the complainants to establish it; and having failed, all ground for the equitable relief failed also ; and the court- below should have dismissed the bill, leaving the parties to the settlement of their rights in the action at law. In the absence of fraud or imposition in the issuing' of the patent, the question was one of conflicting title under the treaty on one side, and the acts of Congress, appropriating every sixteenth section in the townships for the benefit of schools, on the other, —-a question-purely of law. •

The State of Mississippi acquired a right to every sixteenth section, by virtue' of these acts, on the extinguishment- of ■ the Indian right of occupancy, the title to which, in respect to the particular sections, became vested, if vested at all, as soon as the surveys were made and the sections designated. No patent was necessary, or is ever issued, for these school sections. And the question presented is, whether the general right reserved to Wall under the treaty, to select a section of land in the ceded territory, operated to suspend the vesting of the title in th§ State, till a selection could be made and patent issued, under the direction of the President ; or .whether the selection in respect to these general floating rights, that bound no particular parcel or section, must be made in subordination to the.right acquired by the State.

The question, as before said, is one of law, and should have been left to the trial at law in the action of ejectment pending between the parties.

There is no doubt but that all persons' in whose behalf reservations were made under the treaty, and who were residents upon any particular tract, and had made improvements thereon at its date, were entitled to the section, including their improvements, in preference to any other right that could have been previously acquired under the government; because the land embraced within the section was so much excepted from the cession. No previous grant of Congress could be paramount, according to the rights of occupancy which this government has always conceded to the Indian tribes within her' jurisdiction.

It was so much carved out of the Territory ceded, and remained to: the Indian occupant, as he had never parted with it. He holds, strictly speaking,-not under the treaty of cession, but under his original title, confirmed by the government in the act of agreeing to the reservation.

But the question here is, whether the reservation of a right, not to any particular parcel or section of the territory ceded, but a right, generally, to have that quantity of land out of it, and to be located under the direction of the President, stands upon the same footing, and has the effect to cut off the right claimed by the State to have attached under the acts of Congress to the school section previous to the location made by the President.

We forbear expressing any opinion upon it, as the question is not now properly before us, and as it belongs to the action at law, the trial of which should not be anticipated or the case prejudged.

We shall therefore reverse the decree, and remit the proceedings to the court below, with directions to dissolve the' injunction and dismiss the bill of the complainants.

Order.

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 Mississippi, and was argued by counsel. On consideration whereof, it is now here ordered and decreed by this court, that the decree of the said Circuit Court in this cause be, and the same is hereby, reversed, with costs, and that this cause be, and the same is hereby, remanded to the said Circuit Court, for further proceedings to be had therein, in conformity to the opinion of this court.


author: Mr. Justice WOODBURY

text:
    Robert Ruffin Barrow, Plaintiff in error, v. Josiah Reab.
    No exception can be taken in this court which was not moved below, or which does riot appear in some way on the record below.
    Formerly, the laws of Louisiana did not allow interest on accounts or unliquidated claims; but now it is due from the time the debtor is put in default for the payment of the principal.
    This case was brought up, by writ of error, from the Circuit Court of the United States for the District of Louisiana.
    Reab was a citizen of Connecticut, and Barrow of Louisiana.
    The facts in the case appeared by the record to be these.
    On the 5th of -February, 1845, Reab purchased, at New Orleans, from J. R. Conner, alleged to be the lawfully authorized agent of Barrow, 35,000 gallons of molasses, at the rate of twelve and a half cents per gallon, to be delivered at Field’s Mills on the Bayou Lafourche; said molasses being represented as the crops of two plantations owned by Barrow, one being called the Myrtle Grove Plantation, and the other being called the Home Plantation, or Home Place. At the time of purchase, Reab paid to Conner for Barrow five hundred dollars.
    Conner gave an order upon Barrow for the molasses, to be delivered to Reab or order, who sent a William Patton for it. The overseer wrote upon the face of the order, in pencil, “ The molasses has all been shipped from Myrtle Grove and the Residence.”
    On the 20th of March, 1845, Reab brought an action in the Circuit Court against Barrow, claiming, for expenses of sending a vessel, &c., and for the rise' in the price of molasses, the sum of $ 3,75.5.07.
    On the 22d' of April, 1845, Barrow answered the petition by a general denial, and by denying specially that Conner was his agent.
    In March, 1847, the cause came up for trial, when the jury found a verdict for the pláintiff for $3,000, with interest. "Whereupon the court entered judgment against Barrow for the sum of three thousand dollars, with interest' thereon at the rate of five per cent, per annum from judicial demand, the 29th day of March, 1845, till paid; and the costs of suit.
    In the course of the trial, the following bill of exceptions was taken.

      “ Be it remembered, that on' the trial of this cause, to wit, on the 9th day of March, 1847, the plaintiff offered in evidence, attached to the deposition of William C. Patton, a written instrument in the words following: —

      “ 1 Mr. R. R. Barrow, or manager, will deliver to Mr. Josiah Reab, or order, the molasses on Myrtle Grove, as well as the production of the Home Place, or Residence, said molasses to be delivered in casks, to be furnished by the purchaser at Field’s mills, and oblige, &c. ' J. R. Conner.’

      “ Upon which was this indorsement: —
    “ ‘ Deliver to Mr. William Patton. Josiah Reab.’
    “ Written on the face, by overseer of the defendant, in pencil: — .
    “ 1 The molasses has all been shipped from Myrtle Grove and the Residence. N. L. F. Monroe.’
    “ And after the evidence had been given to the jury by both parties, the defendant, through his counsel, requested the court to-charge the jury, that, in order to recover damages for the alleged failure of the defendant to deliver.the article sold by his alleged agent, "as set forth in the plaintiff’s petition, it would be necessary for him to show that a demand in writing, or in one of the other modes prescribed by article. 1905 of the Louisiana Code, had been made upon him for the delivery of the article sold, by the vendee, or some person authorized, and that he had been put iri default according to the terms of the said article 1905. Whereupon the court charged the jury, that," if they should be satisfied that there had been a sale, and that the instrument aforesaid was a memorandum of the sale, with the indorsement of the vendee for the delivery of the thing sold, and that the same had been presented to the defendant or his authorized agent, such would be a-demand in writing under the terms of the article 1905 of the Louisiana Code.

      “ To which opinion and charge of the court the defendant, through his counsel, excepted, and prayed leave of the court that said exception be made of record, and that he have his bill of exception thereto; which leave was granted by the honorable court, and this, the bill of exceptions of the defendant to the said charge of the court, was then and there signed and sealed by the honorable court.
    [l. s.] Theo. H. McCaleb, U. S. Judge.”

    The defendant, Barrow, sued out a writ of error, and brought the case up to this court.
    It was' submitted on printed, argument by Mr. Downs, for the plaintiff in error, and argued orally by Mr. Baldwin, for the defendant in error.
    Mr. Downs, for the plaintiff in error,
    contended that the judge erred in his charge to the jury, in this: that in stating what was requisite to make the demand in writing a good one, under the 1905th article of the Louisiana Code, he ought to have informed the jury, among other things, that they must be satisfied that, when the demand was made, a proper tender of the price was also made; for this is a necessary and an essential part df a legal demand, so as to put .a party in default or delay, to entitle the plaintiff to recover. This the judge did not do, as the bill of exceptions shows. The Louisiana Code requires this formality, as has been frequently decided by the Supreme Court of Louisiana. La. Code, art. 1905 et seq.; 11 La. Rep. 77, 101.
    II. The court also erred (and this question is submitted as an error apparent on the face of the record) in giving judgment for interest on a demand for damages. Interest can be allowed by the laws of Louisiana only on a liquidated demand, and not on a claim for damages. 4 Martin, 620 ; 2 La Rep. 580 ; 4 La Rep. 129 — 140 ; 8 La. Rep. 572.

      Mr. Baldwin, for the defendant in error.
    1. The only question which can be raised under the bill of exceptions is, whether the presentment of the written order, with the indorsement of Reab thereon, to the defendant below, or his authorized agent, was- a demand in writing. As no particular form of demand is required, it is difficult to conceive how this .can- be denied. See Wilbor v. McGilli'cuddy, 3 La. Rep. 383; Kelly v. Caldwell, 4 La. Rep. 40.
    Conner, who signed the order to deliver, being the agent of the defendant, the order is itself proof that the plaintiff had done every thing necessary to entitle him to receive the merchandise. Consequently, there is no' question as to the tender of performance by the plaintiff. .If any question of that kind had arisen below, there was abundant proof in the case that the plaintiff had done every thing required of him, and was ready to receive the property; but the exception is taken only to the direction of the judge, that the presentation of this order, with the indorsement of the plaintiff thereon, was a demand in writing.
    It Ayas'not only a demand in writing, but there was a refusal in writing, which, of course, from its very nature, relieved the plaintiff of the necessity of any further offer or act. If there was no molasses there, it would have been idle to have made any further tender or demand.
    The judge did not refuse to charge that a demand must be made and a default proved. His charge is in effect a- compliance with the request of the defendant’s counsel, — that, admitting the necessity of a demand, it had been proved by the production of the order.
    The debtor is put in default by a tender to perform (art. 1907, Louisiana Code) and by a demand of performance (art. 1905). The bill of exceptions alludes only to article 1905, and says nothing about the former. Hence, the instruction only had reference to the demand,'and the tender must be implied to have been regularly made.

      2. The allowance of interest was proper. The decisions relied on by the counsel for the plaintiff in error were made while an article of the Code of Practice was in force which has since been repealed. That article was as follows (No. 553): — “No interest shall be allowed on accounts or unliquidated demands.” It was repealed by the fifteenth section of the act of 20th March, 1839. Louisiana Acts, p. 168.
    Since the repeal of that article, the law of interest applicable to the case is found in art. 1932 of the Civil Code, as follows: — “ In contracts which do not stipulate for the payment of interest, it is due from the time the debtor is put in default for the payment of the principal, and is to be calculated on Avhatever sum shall'be found by the judgment to have been due at the time of the default.” One of the modes of putting in default is by suit, another by demand, &c. (art. Í90-5.) Interest might, therefore, have been allowed from the demand, but, as that preceded the suit only a few days, the date of citation Avas taken.
    No question appears to have arisen at the trial in relation to the interest.

      In Porter v. Barrow, 3 La. Ann. Rep. 140, it was decided, on breach of a similar contract to that which is the subject of the present suit, that the court may, in its discretion, allow interest from judicial demand. 3 Robinson, 361.
    In Petrie v. Woford, 3 La. Ann. Rep. 562, the court say,-r— “We have hitherto held that sums due on contracts bear interest from judicial demand, though unliquidated.” And sée also 2 Ann. Rep. 878.
    In Ryder v. Thayer, 3 La. Ann. Rep. 149, where the suit was brought for breach of contract to ship goods, the plaintiff was held to be entitled to recover the value of the goods at the port of destination, with interest from the time of judicial demand.
    ..See also Enders v. Board of Public Works, 1 Grattan, (Ya.) 389, where the court say that, “as a general rule, the value of the artjcles to be .delivered, at the time when they should have been delivered, with interest from such time of delivery, forms the proper measure of damages in actions for the breach of ex-ecutory contracts for the sale and delivery of personal property.” 2 Comstock, 135.
   Mr. Justice WOODBURY

delivered the opinion oí the court.

The plaintiff in error, in his argument, relies on two grounds for reversing the judgment below.

One is, that the judge should have instructed the jury that they must be satisfied, when the demand was made, that a proper terider of the price was also made.

But, on turning to the record, it does not appear that any exception was taken at the trial for any omission of this kind. And it is a well-settled practice, that no exception can be taken here which was not moved below, or which does not appear in some way on the record below; Garland v. Davis, 4 Howard, 131, 143.

Besides this objection to the present ground ^assigned for. a reversal, the presumption is, that the judge in truth informed the jury, that a proper tender or readiness to pay must be shown, unless waived by Barrow, or the exception would have been taken there, and would be spread on the record. Much more is this to be presumed, as such tender or readiness was averred in the declaration; and its importance, therefore, was called to mind, as well as being recognized, by the laws of Louisiana. - Ferran’s Adm’x v. Lambeth et al., 11 La. Rep. 77, 101.

The other exception urged here is the allowance by the court of interest on the verdict.- This allowance appears on the record, and was in conformity to the finding of the jury, which was “ for three thousand dollars, with interest.”

To be sure, the laws of Louisiana once provided that no interest shall be allowed on accounts or unliquidated claims.” (Code of Practice, No. 554; 4 Martin, 620; 2 La. Rep. 580; 4 La. Rep. 129, 140; and 8 La. Rep. 572.) But on the 20th of Miarch, 1839, this provision was repealed. (Louisiana Acts, § 15, p. 168; 2 La. Ann. Rep. 878.) And the rule since established, in article 1932 of the Civil Code, is, — “ In contracts which do not stipulate for the payment of interest, it is due from the'time the debtor is put in default for the payment of the principal, and is to be calculated on whatsoever sum shall be found by the judgment to have been due at the time of the default.”

This provision has, in several cases in Louisiana, been held to apply to transactions of this kind, settling the law now to be as the court below virtually adjudged; namely, that “sums, due on contracts bear interest from judicial demand, though unliquidated.” Petrie v. Woffard, 3 La. Ann. Rep. 562; Porter v. Barrow, Ibid. 140; and Ryder v. Thayer, Ibid. 149; Sullivan v. Williams, 2 La. Ann. Rep. 878; 3 Robinson, (La.) 361; Erwin v. Fenwick, 6 Martin, N. S. 230.

. Such, too, seems to be-the rule as to' interest in some other States, resting on general principles. Van Rensselaer v. Jewett, 2 Comstock, 135; Enders v. Board of Public Works, 1 Grattan, (Va.) 389. More especially has this been considered allowable, in England as well as this country, if, as here, interest be given as a part of the damages for a wrongful refusal to fulfil a contract. Arnott v. Redfern, 3 Bingh. 353; 2 Carr. & Payne, 88; S. C., 1 Maule & Selw. 169; Doug. 376; Noe v. Hodges, 5 Humphreys, 103; Peters, C. C. 172; Cooke, 445. But the general practice, where no statute or usage exists to the contrary, is, not to allow interest on unliquidated -damages due in cases of ordinary contracts. Anonymous, 1 Johns. 315; 2 Penn. 652; Peters, C. C. 85, 172, 221; Colton v. Bragg, 15 East, 223: 3 Gilman, 626. Independent,, however, of the rule elsewhere, the law in Louisiana must, in this instance, govern in respect to interest; and, as we have before shown, it sustains the course adopted by the Circuit Court.

There was one formal exception taken below, and set out on the record, which has not yet .been noticed. The defendant insisted, that it was necessary for the plaintiff to show a demand in writing.

“ Whereupon the court charged the jury, that if they should be satisfied that there had been a sale, and that the instrument aforesaid was a memorandum of the sale, with the indorsement of the vendee for the delivery of the thing sold, and that the same had been presented to the defendant or his authorized agent, such would be a demand in writing under the terms of the article 1905 of the Louisiana Code.

' To which opinion and charge of the court the defendant, through his counsel, excepted.”

But in the argument this exception did not appear to be relied on, and could not be successfully, as the sale, by the evidence, seems to have been in writing, the order to receive the article sold in writing, and this order presented; and a refusal indorsed on it, in writing.

On the whole case, then, the judgment below must be affirmed, with damages at the rate of six per cent.

Order.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Louisiana, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be, and the same is hereby, aifirmed, with costs and damages at the rate of six per centum per annum.


text:
    Robert M. Harrison, United States Consul, Plaintiff, v. George C. Vose.
    An act of Congress passed on the 28th of February, 1803 (2 Stat. at Large, 203), declares that “ it shall be the doty of every master or commander of a ship or vessel belonging to citizens of the United States, on his arrival at a foreign’port, to deposit his register, sea-letter, and Mediterranean passport with the consul, commercial agent, or vice commercial agent, if any there be, at such port. In case of refusal or neglect of the said master or commander to deposit the papers as aforesaid, he shall forfeit and pay .§500.”
    The arrival here spoken of means an arrival for purposes of business, requiring an entry and clearance and stay at the port so long as to require some of the acts connected with business; and not merely touching at a port for advices, or to ascertain the state of the’markct, or being driven in by an adverse wind and sailing again as soon as it changes.
    Therefore, when a vessel arrived at the harbour of Kingston, Jamaica, and came to anchor at about a quarter of a mile from the town, but did not go up to the town, nor come to an entry, nor discharge any part of her cargo, nor take in passengers or cargo at Kingston, nor do any business except to communicate with the consignees, by whom the master ivas informed that his cargo -was sold, deliverable at Savannah la Mar, the master was not liable to the penalty for omitting to deliver his papers to the consul.
    This case came up from the Circuit Court of the United States for Maine, upon a certificate of division in opinion between the judges thereof.

      It-was an action of debt for the penalty of five hundred dollars imposed by the statute (2 Stat. at Large, 203) which will be presently quoted, brought in the Circuit Court for Maine, in .the name of Mr. Harrison, United States Consul at Kingston, in the island of Jamaica, against George C. Vose, master of the-brig Openango.
    By the second section of the act of 28th February, 1803, entitled “An act supplementary to the act concerning consuls and vice-consuls, and for. the further • protection of American seamen,” it is enacted : — “ That it shall be the duty of every master or commander of a ship or vessel, belonging to citizens of the United States, who shall sail from any port of the United States after the first day of May next, on his arrival at a foreign port, to deposit his register, sea-letter, and Mediterranean passport with the consul, vice-consul, commercial agent, or vice commercial agent (if any there be at such port); that in case of refusal or neglect of the said master or commander to deposit the said papers as aforesaid, he shall forfeit and pay five hundred dollars, to be recovered by the said consul, vice-consul, commercial agent, or vice commercial agent, in his own name, for the benefit of the United States, in any court of competent jurisdiction ; and it shall be the duty of such consul, vice-consul, commercial agent,--or vice commercial agent, on such master or commander producing to him a clearance from the proper officer of the port where his ship or vessel may be, to deliver to the said master or commander all of his said papers. Provided, such master or commander shall have complied with the provisions contained in this act, and those of the act to which this is a supplement.”
    The action was brought at the October term, 1847. Vose appeared and pleaded nil debet, and the cause came on for trial at the same term.
    The facts in proof in the case were as follows.
    The brig Openango, belonging to citizens of the United States, George O. Vose (the defendant) master, sailed from Eastport, in the State of Maine, in the month of July, 1844, with a cargo of lumber, consigned to Messrs. Darrell & Barclay, merchants, of Kingston, in the island of Jamaica, and arrived at Port Royal, in the harbour of Kingston aforesaid, on the 4th day of September of the same year, and came to anchor at about a quarter of a mile from the town, but did not go up to the town, nor come to an entry, nor discharge any part of her cargo, nor take in cargo or passengers at Kingston, nor do any business, except to communicate with his consignees ; by ■whom the master of said brig was informed that his cargo was sold, deliverable at Savannah la Mar.
    The defendant on his arrival at Kingston, or at any time while said brig lay at anchor at Kingston, did not deposit his register, sea-letter, or Mediterranean passport with the plaintiff, who was the United States Consul at said port of Kingston at the time of the arrival of said brig there, as aforesaid.
    After communicating with said consignees, the master of said brig, on the 5th day of said month of September, sailed in said brig from said port of Kingston to a place in said island of Jamaica called Savannah la Mar, where she arrived in due season, came to an entry, discharged her cargo,’ and where the said master deposited the register, sea-letter, and passport aforesaid with the vice-consul of the United States at said place called Savannah la Mar. One of the defendant’s witnesses testified, that said brig arrived at Kingston in the afternoon of the 4th of September, and sailed from Kingston the next morning after her arrival there, and. as soon as the wind would permit.
    It was in proof, from one of the Kingston pilots, that the master of a vessel arriving at’ Kingston is compelled by law to report his arrival at the custc m-house, whether his cargo had been previously sold, deliverable at another port, or not, but was under no necessity of coming to an entry:
    At the trial, the following question occurred upon the foregoing testimony, to wit: —
    Whether it was the duty of the defendant, who was master or commander of the ship or vessel called the Openango, on his arrival at Kingston, in the island of Jamaica, to deposit his register, sea-letter, and Mediterranean passport with the United-States Consul at said. port.
    Upon which question, the judges of the said Circuit Court were opposed in opinion; and thereupon, upon the motion of the District Attorney, for and in behalf of the United States, it was ordered by the. court, that the said question, upon wb’ch the said' judges were so opposed, should be certified, under the seal of the court, to the Supreme Court of the United States, at their next session, for a final decision.
    Levi Woodbury,

      Associate Justice of Supreme Court.

    Ashur Ware,

      District Judge.

    The cause was argued by Mr. Johnson (Attorney-General), for the plaintiff, no counsel appearing for the defendant.

      Mr. Johnson said, that upon this question the opinions of two courts below have been conflicting, and the present case has been brought up to have the true construction of the act settled. The cases are Toler v. White, Ware, 277, and Parsons v. Hunter, 2 Sumner, 419.
    As bearing upon the question, the court is referred to the following acts. Collection Act of 10th August, 1790, § 16 et seq. (1 Statutes at Large, 158); Act concerning the Registering and Recording of Vessels (Ibid. 2,92); Coasting Trade Act, §§ 3, 15, 17, and 22 (Ibid. 306); United States v. Shackford, 5 Mason, 445.
    There are also hereto annexed copies of two opinions given in the Attorney-General’s office in relation to this subject.
    “ Attorney- General’s Office, June 11, 1845.

      “ Hon. James Buchanan, Secretary of State.

    “ Sir, — I have had the honor to receive your communication of the 16th April last, with a letter from the United States Consul at Nassau, asking my opinion on the question presented by the consul.

      “ He states, ‘ that his instructions to his agents have been -to this effect, that any voluntary arrival at their ports obliges the master of the vessel upon his arrival to deposit his register,' whether such arrival be for advices or not, or whether the vessel comes to an entry or not, and without respect to her. remaining twénty-four hours, or any definite time, or not.’ And the question presented for consideration is, Are those instructions warranted by law ?

      “ By the second section of the act of 28th February, 1803, it is made the duty of every master of a vessel, belonging to citizens of the United States, who shall sail from any part of the United States, on his arrival at a foreign port, to deposit his register, sea-letter, or Mediterranean passport with the consul, vice-consul, or commercial agent, if any there be at such port. In case of refusal or neglect, he is subjected to a penalty of five hundred dollars. And the same section makes it the duty of such consul, vice-consul, or commercial agent, ‘ on such raster or commander producing to him a clearance, from the proper officer of the port where his ship or vessel may be, to deliver to the said master or commander all of his said papers.’
    “ Taking the whole section together, it is very obvious that Congress required the papers of an American vessel in a foreign port to be delivered to the consul only where it was necessary to make an entry at the custom-house. It is on the master’s producing a clearance that the consül is to return him his papers, and there can be no clearance where there is no entry. If an American vessel arrive at her port of discharge, or if, for any reason other than the purpose of trading with the whole or portion of her cargo, she shall remain so long that by the law of the country an entry is required, she must enter at the custom-house of such port, and in all such cases the master must deposit his register. But the law does hot extend the duty beyond this. A requisition of a deposit of' papers, in all cases of arrival, where by the local laws an entry is not necessary, and where there is no trading or purpose to trade, might add to consular emoluments, but would prove extremely embarrassing to the navigating interest. The object of the law is to compel masters of vessels belonging to American owners, sailing from American ports, to respect our own laws, and those of the foreign countries to whose ports they may go for the purpose of trade; and this object is attained by requiring them to exhibit the evidence of their being lawful traders to our consuls, at the ports where they have to enter. Beyond this, neither the law nor good policy requires Jhat their duty shall extend.
    “ I have the honor to be, respectfully, Sir, your obedient servant,
    “ Jno. Y. Mason.”
    “ Attorney- General's Office, September 26, 1849.
    “Hon. John M. Clayton,. (Secretary of State.

    “ Sir, — The question you have submitted to this office, upon the letter of F. H. Whitmore, Esq., of New Haven, Connecticut, of the 10th September, 1849, ‘ respecting the demand made by the United States commercial agent at St. Thomas, in all cases of the arrival at that port of an American vessel, whether business is or is not done by her, that the register, Ac., be deposited with him,’ I have considered.
    “ The legality of the demand depends upon the proper construction of the second section of the act of Congress of the 28th February, 1803, supplementary to the ‘Act concerning consuls and vice-consuls,- and for the further protection .of American-seamen.’ 2 Statutes at Large, 203.
    “ By the words of the first part of the section, the master of an American vessel, sailing from a port in the United States,-is required to deposit his register, sea-letter, and Mediterranean passport, ‘ upon his arrival at a foreign port,’ with the American consul, &c., &c., if there be cine at such port. The duty, regarding this part of the section, only exists upon arrival, without reference to its object,- and whether it be voluntary and for busiuess, or otherwise. But the subsequent part qualifies, I think, the general words of the first. It is in the provision that the consul, &c., on the master’s 1 producing to him a clearance from the proper officer of the port where his ship or vessel may be,’ shall deliver to him ‘all of his said papers.’ Construing the two clauses together, I think the true meaning of the whole is, that there- is tó be no deposit of the papers upon an arrival, unless it be an arrival with a -view to entry, or where by the local law an entry is required. Where either exists, my opinion is, the deposit with the consul, <fcc., is to be made ; and of course'it is the duty of the consul to demand it. It will be seen, I think, that in this view of the case I but concur in +he opinion to which you refer, of Mr. Attorney-General Mason, of the 11th of June, T845.
    “ After quoting the section of the act in question, he says, ‘ Taking the whole together, it is obvious that Congress required the papers, &c., to be delivered to the consul only when it was necessary to make ah entry at the custom-house ’; and therefore, ‘ if an American vessel arrive at her port of discharge, or if, for any reason other than the purpose óf trading with the whole or portion of her cargo, she shall remain so long that, by the law of the country, she must enter at the custom-house of such port,’ the deposit must be made.
    “Interpreting the section as I do, to require the deposit only when an entry is to be made, he makes it the duty of the master, as I do, to deposit, in case of entry in port, without regard to the manner or object of its being made'. The motive for the deposit is, I think, the same in all cases of-actual entry, and the trouble and duty of the consul, &c., the same. He is in both cases to take charge of the vessel’s papers, and to hold them until she is again cleared,' and for the trouble of receiving, preserving, and delivering them (of each of which acts he is to give a certificate under seal), he is entitled to charge two dollars. See chapter 8, section 7, of General Instructions to Consuls, of the.6th June, 1849.
    “The result, then, to which I come is.this, that the commercial agent at St. Thomas, in the case of all American vessels arriving there, and remaining so long as by the local regulation to be obliged to enter, and afterwards to clear, is entitled, and it is his duty to demand, the surrender of their papers, under the act of 1803, no matter what may be the motive of the entry, whether from business or not.
    “ I have the honor to' be, Sir, your obedient servant,
    “ Reverdy Johnson.”
   Mr. Justice WOODBURY

delivered the opinion of the court. The question in this case, on which the judges below have presented a difference in opinion, is one of commercial importance,- and of no little difficulty.

The provisions in the act of Congress of February 28, 1803, under which the penalty is. claimed by the plaintiff from the defendant, declare, “ that it shall be the duty of every master or Commander of a ship or vessel belonging to citizens of the United States,” on his arrival at a foreign port, to deposit his register, sea-letter, and Mediterranean passport with the consul, vice-consul, commercial agent, or vice commercial agent, if any there be at such port.” 2 Statutes at Large, 203, § 2.

The law then adds, “ that, in case of refusal or neglect of. the said master or commander to deposit the said papers as -aforesaid,-' he shall forfeit and pay $ 500.” There is no clew in.this act. itself to the meaning of the word arrival, or to the object and design of the act, so as to judge whether it has or has hot'in this instance been violated, except another provision in the close'of the same section, that the consul shall, “ on such-master or commander producing to him a clearance from the proper ¿officer of the port where his ship or vessel may be, deliver -to the said- master or commander all of his said papers, provided such master-or commander shall have complied, with the provisions contained in this act and those of the ac,t * to whieh this is a supplement.”

Of'course, we must in this, as in all cases, begin the inquiry with the presumption that the defendant is innocent, and that the burden of proof to make out the guilt devolves on the plaintiff. In the construction of a penal statute, it is well settled,, also, that all reasonable doubts concerning its meaning ought to operate in favor of the respondent. In the United States v. Shackford, 5 Mason, 445, Justice Story says, “ It would be highly inconvenient, not to say-unjust, to make every doubtful phrase a drag-net for penalties.” (p. 450.)

This principle of construction does not make an exception in the aCt not múde by Congress, ais is sometimes objected, but it recognizes a limitation aHowed or required by the act itself, in order to give to it what it-must reasonably be supposed the legislature designed, a natural and obvious intent. Thus, no law .of Congress could ever be properly construed as an. intention to punish involuntary acts, such as what is done by force of a storm or .an enemy. .

It is settled; too,, that, where penalties are to be recovered, greater fulness of evidence is necessary to make out such a. case as the law contemplates. United States v. Wilson, 1 Baldwin, C. C. 101; Greenleaf on Ev., § 65. The proof must, then, bring á transaction within the spirit as well as letter of the'law, and must usually show a plain breach of both.

In The Enterprise, 1 Paine, C. C. 32, it is- said, that one shall not incur a penalty in cases of doubt, and courts should not extend a construction beyond what is clear in such cases. See further on this, Taber’s case, 1 Story, 6; and 1 Story, 255 and 256; and Sloop Elizabeth, 1 Paine, C. C. 11.

• Taking this rule' of construction with us, the inquiry is, whether the words “ arrival at a foreign port,” as used in the first portion of the second section, and on which arrival-the master is to deposit his papers, mean any touching at a foreign port for any time, however short, or for any purpose or reason whatever, or only an . arrival to transact commercial business, followed in due time by an entry of the vessel.

Sometimes the arrival of a vessel refers, undoubtedly, to her coming into a port from any cause, or for any purpose, and for any period. It is admitted that this may be the literal and general meaning of the term with lexicographers, but in several eases it is used to denote a coming in for certain special objects of business, and to be followed by remaining there so long as •to render an entry of the vessel proper, and a deposit of her papers with a consul prudent and useful.

Thus it is, as to an arrival of a vessel, when she enters a port or harbour in order to close an outward or inward voyage. It is usually a coming to the place of the vessel’s destination for - her business, and waiting to transact it. It is with a view to stop over twenty-four or forty-eight hours, so as to be obligéd by express law or general usage to enter the- vessel and cargo, or to sell, or deliver, or purchase a cargo. It is under such circumstances as seem likely to need" a consul’s advice or assistance, and as give time to come properly under his supervision and jurisdiction.

Which of these ideas was meant by the legislature to be attached to the word “ arrival,” in this law, is the chief question to be ascertained. If it was the latter meaning, namely,- an arrival, for business, and to remain long enough to make an entry and clearance proper, then the respondent does not appear to have violated the spirit of the act of Congress, though in other senses of the word his vessel had arrived temporarily at the port of Kingston.

On examination, the words arrive and arrival, when used in respect to matters of this kind in acts of Congress, will, in sev-eral instances, appear to be used in the last sense, as applicable only to .-an arrival to enter and clear for business. Thus, in the thirteenth section of the act of December 31, 1792, the requirement that a temporary register of a vessel, instead of one lost, shall be delivered up “within ten days after her first arrival' within the district to which she belongs,” means, not touching or inquiring only, but arriving, to enter and transact business. (Ware-, 281.)

So in the. thirty-first section of the Collection Act, customhouse officers may board a vessel within four leagues of the coast and put seals on boxes, &c., “ and if, upon her arrival at the port of her entry,” they are found broken, &c., a penalty is incurred. (1 Stat. at Large, 165.) This manifestly means an arrival to enter for business.

I If is Well known, that such has always been the practical construction of the act of Congress of 1803, by the mercantile and navigating community, and hence, for a quarter of a century after its passage, no case of a prosecution for violating it appears in the books. Indeed, it has been judicially settled in 5 Mason, 446, before cited, that the word arrival, as used in that case, which was very analogous, means an arrival for such a business purpose. There the third section of the act of 1793, ch. 52,. provided that a temporary, register should, “ within ten days after the arrival of such ship or vessel within the district to which she belongs, be delivered to the collector of said district, and be by him cancelled.”

The vessel in that case belonged to Eastport, and was destined to New York, with a cargo from New Brunswick, and after sailing arrived and stopped two hours in the District of Pas'samaqúoddy,. including Eastport, for a tide, and put ashore sóme passengers and took in others, and then.departed for New York; her place of final destination; but she did not enter- or clear, and was held not to come within the above penal provision.

Beside. these' analogies, showing the restricted meaning attached to the word arrival in several laws connected with navigation, the latter clause of this very aet of 1803 contains a provision on this subject, which indicates clearly the design that the arrival must be one so long, and with such a purpose, as to require an entry of the vessel.

In construing all statutes, the. whole of them- must be scrutinized in order to decide on the meaning of particular parts. II Mod. 161; Stowell v. Zouch, Plowden, 365; 8 Mod. 8; Bac. Abr., Statute, I. 2; Co. Lit. 381, a. This eviscerates the true meaning from the law itself, — ex visceribus actus.

In the other portion of this' section, after the provision that the papers be delivered to the consul on the arrival of the vessel, he is required to return them only “on' such master or commander producing to him a clearance from the proper officer of the port where his ship or vessel may be.” Yet such a clearance cannot be produced unless the vessel has first entered at the custom-house. Hence the conclusion seems irresistible, that it was not designed to require' the master to deliver his papers to the consul, unless arriving with a view to enter his vessel for- the transaction of business, and stopping so long as to render such an entry proper for security of the revenue and the supervision of the consul over her business and crew.

The acts of Congress do not make such entry imperative, in* most cases, till after twenty-four hours, and in some, not till' forty-eight hours (1 Stat. at Large, 158; <§> 16). The rule as to this abroad is probably similar; and as this vessel stopped for a less time, and-did no business there, she does not appear to have-been required by the local authorities to enter, nor did the master enter her of his. own áccord. Consequently, no clearance could be presented to the consul to obtain his papers, if they had been delivered, and therefore it does not seem to have been a case contemplated for such a delivery.

4 gain, a vessel is not considered to arrive, so as to be regarded as importing her cargo, unless she arrives within a port apd with an intent to enter the cargo. United States v. Lyman, 1 Mason, C. C. 482. It is not enough to -come within -the limits of the district. United States v. Vowell, 5 Crunch, 372.

So the acts" of Congress expressly provide, that she need not enter at a port where she arrives, if she desires to go farther to an interior port. Act of 4th August, 1790,- <§> 15 (1 Stat. at Large, 158).

Nor does the master appear-in this case to-have forborne to enter and afterwards obtain a clearance from any fraud or eva-. sion. He did not stop the usual time to require an entry, he needed no entry as he found that he had no business to transact there, he wanted no aid or advice of the consul, nor did his crew, so far as the evidence goes, and he might well, under such circumstances, proceed farther to his finally destined port, without incurring the expenses of an entry and clearance, and the payment of tonnage duties, merely to enable him to deliver his papers to the consul, and immediately receive them back again.

The -proviso of the act seems to indicate that the papers are delivered to the consul chiefly as security for two purposes; viz. the payment of extra wag<-s to seamen discharged, and the taking on board destitute seamen when bound home ; and hence, if the master does not perform what is thus required, he is not entitled to his papers again, even after an entry and clearance. But as no- seamen were discharged here, and as this vessel was not bound homeward, there was no public duty or policy of this kind to be attained, by showing' her papers to the consul. Nor does it appear that the crew had any grievances to lay before him, which were thus delayed. Indeed, the vessel sailed only a few miles farther, to a neighbouring port, and entered there, where every consular protection and redress were equally open and could equally subserve any public end of this kind in view in enacting the law now under consideration. And while we feel a strong disposition to shield seamen from oppression, and will go for that purpose, in proper cases, to any extent justifiable by law, we must take care that what is intended as a shield to one class shall not be perverted, without justification, into a weapon to vex and burden another class alike meritorious.

It is conceded that a consul is the chief representative and ■agent of his country in most foreign ports, and as such is to be resorted to by his countrymen. But when a vessel has arrived so as to be required to deposit her papers with him, it would seem to be reasonable that she must intend to stay long enough to need or allow the exercise of some of his functions. Those functions are principally to watch over our trade, — actual exports and imports; to exercise jurisdiction in some respects over American vessels and seamen abroad; sometimes of a judicial character (3 Taunt. 162), when they stop and come ashore, or to transmit information home in relation to them.

To be sure, he has a few other duties to perform. But most of them are disconnected with this subject; — as, to take care of American property, either wrecked or belonging to deceased persons; to exercise at times even diplomatic functions; to aid his countrymen in scientific researches; to transmit periodical advices on every thing beneficial to trade or the arts, and, in all emergencies among strangers, to act as the friend and agent of commercial visitors from his Own country. Vattel, Law of Nations, Consuls; Warden’s Consular Establishments; 2 Elliot’s Am. Dip. Code, 454; 7 Peters, 276; Bee’s Adm. 209; 1 Statutes at Large, 254, and note; 10 Wheat. 66; 1 Mason, 14; 1 McCulloch’s Dict., Consul, 465-467; 2 Beawes’s Lex Mercatoria, 42.

The first class of duties may have furnished some reasons for requiring that the papers of vessels be lodged with the consiu after an arrival to stay and transact business, and that they remain with the consul till the vessel’s clearance. All of that class look to an arrival for purposes of business, — to an entry and clearance, and to a stay there so long as to require some of the acts connected with it, and to need or permit the interference of the agent of their country in some of. his appropriate functions, and especially to enable him to report understandingly that her trade, or her imports and exports, are on American account, and are of a certain value and character.

Again, if a vessel on touching at a port for advices merely, or to ascertain the state of the market, and sailing again forthwith on obtaining them, or on being driven in by an adverse wind and sailing again when it changes, were considered as obliged t» send her boat on shore and report to the consul, with her'papers,, often with unnecessary delay, and always .with no object except mere information of her existence at a particular date, the law would be very burdensome without any adequate equivalent. More especially is this the case when this general information can be got and communicated without depositing the papers. If they must be left, they must frequently be lodged, and be forthwith taken back, and a clearance be obtained, though no entry had been made for business nor wished to be made.

Again, if this must be done whenever a vessel merely touches for a few hours on the outskirts of a port, where the city is ten,thirty, or one hundred miles up a river or bay at which the consul resides, — which is frequently the case, — the provision would be oppressive in the extreme; It might by needless delays defeat the whole benefits of the voyage, and sometimes lead to a loss of the insurance by those delays, or by deviations.'. It would cause much unnecessary expense in fees arid tonnage duties and port charges, which Congress could never have meant to impose, when, no business was to be transacted. It would embarrass. and clog, rather than aid, commerce, which, last is peculiarly the design and policy of legislation by the general government on this vital subject.

In some acts of Congress, it is expressly recognized as an excuse from a penalty in respect to a matter like this, if the vessel desires to go farther, to an interior port, or is driven about by stress of' weather, by chase of an enemy, or any “other necessity,” not saying whether voluntary or involuntary. (1 Stat. at Large; 158, 160, 167.)

And it would seem reasonable, not only to construe these penal acts as not designed for such cases, but to regard them as not meant for a touching merely to seek or give information, or to obtain a slight repair, or needed supplies, if it can be done, and the vessel can depart, before law or usage requires an entry.

If any doubt remains, that the arrival spoken of in this act was one to require an entry and clearance in connection with the delivery of the. papers to the consul, if should be removed by the provisions in the act of March 3d, 1817, made in pari materia (3 Statutes at Large., 362). . Information thus obtained from similar sources is entitled to much weight. 1 Burrows, 447; Doug. 276; 15 Johns. 380. This statute.enacts, that foreign vessels, arriving from countries where our consuls are allowed to have charge of the papers of an American vessel in port, must deposit with their consuls here their papers, within forty-eight hours after their entry; and that they be returned, when the master “ produces to him (the consul) a cléarance in due form from the collector of thie port,” &c.

Had Congress in this act, or in that under consideration in the present action, meant that the papers should be delivered to the consul whui. no entry of the vessel was contemplated, why was not the provision made to deliver them before entry instead of afterwards, and to return them when she was ready to sail; and not on producing a clearance ? .

Our view, then, is, that the term arrival, as used in this act, must be construed according to the subject-matter, — to the object of the provision and the expressions in other sections of this act and in other like acts ; and that, according to all these, a vessel putting into a foreign port to get information, and getting it without going at all to the upper, harbour or wharfs, and not entering, or repairing, or breaking bulk, or discharging seamen, or being bound homewards so as to take seamen, or needing the aid of á consul .in any respect, but leaving the port in a few hours, not doing any of these, nor being required to, and duly entering and delivering her. cargo at a neighbouring port where it had been sold, and there depositing her papers with the vice-consul; cannot be said to have arrived at the first port, so as to come within the spirit of the penal provision, as to depositing her papers with the ^consul. So far as regards precedents on this matter, the actual decisions of one court and the opinions of two Attorneys-General are in favor of our conclusion ; (see the case of Toler v. White, in Ware, D. C. 275;) while the decision in Parsons v. Hunter, 2 Sumner, 419, is not against it, though the reasoning is, and. seems to unsettle- the question.

. See, also, the' opinions of the law officers of the government at different periods, June 11th, 1845, and September 26th, 1849,'coinciding that the arrival meant here must have been one followed by an entry and clearance. Their opinions, likewise, have without doubt been adopted by the government, and our consuls instructed to conform to them, and this furnishes an additional consideration for not disturbing what is in operation under them; and especially when a change would be merely to extend a severe penalty to a case doubtful in construction and characterized by good intentions.

The utmost which can be said is, that the master might have intended to enter his vessel at Kingston, ,if he found that the cargo had been sold there, but ascertaining it was .not, he left at once in less than twenty-four hours, by the first fair wind, and before entering or being required to enter. The master, therefore, seems to have' acted throughout in good faith, and with no intent to break the law ip not depositing his papers at the first port; and it is so doubtful whether he has incurred a penalty, that we think a certificate must be given in his favor. Plowden, 20.

It is gratifying, in respect to this conclusion, that, if it be different from the design of Congress in this act, another can at once be passed, requiring expressly- in every case, and at whatever delay and expense, that a deposit shall be made of papers with consuls by masters, on touching any part of a port, and for whatever purpose or cause, and for however .short a period.

Order.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Maine, and on the point or question on which the judges of the said Circuit Court were opposed in opinion, and which was 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, that, on the testimony in this case, it was not the duty of the defendant, who was master or commander of the ship or vessel called the Openángo, on his arrival at Kingston, in the -island of Jamaica, to deposit his register, sea-letter, and Mediterranean passport with the United States Consul at said port. Whereupon, it is now here ordered and adjudged by this court, that it be so certified to the said Circuit Court.