Marshaix, Chief Justice,
delivered the opinion of the court as follows :
The sloop Active, a vessel licensed for the fishing trade, was laden, in the night of the 4th of July in the year 1808, in the port of New London, and was seized by the revenue officer, after having left the wharf without a clearance, under circumstances which justify a belief that she was about to proceed on a foreign voyage in violation' of the acts laying an embargo. , The vessel and cargo were libelled as having been forfeited tinder the laws of, the United States, and were both condemned in the District Court, which sentence was affirmed in the Circuit Court.
This sentence is supported on the part of the United States tinder the 3d section of the supplementary act, to the act laying an embargo, and the 32d section of the act for enrolling and licensing ships or vessels to be employed in the coasting trade and fisheries.
This court is of opinion* that however criminal the intentions 'of those on boárd the Active might have. been, neither the vessel nor cargo were forfeited under the 3d section- of the « act supplementary- to the act, en~ an act laying an embargo on all ships and vessels in the ports and harbors of the United States," because she appears to have been seized in port; and a depar-' ture from port without a clearance was necessary - to consummate the offence.
The case is undoubtedly 'within the words of the 32(1 section of the enrolling and licensing act. The Active was a licensed vessel employed in a trade' other than that for which she was licensed.
The argument that this act was intended merely to secure the revpnue, and that its provisions do not contemplate a vessel laden .with domestic produce not subject to duty, has been urged..with great force and certainly derives much strength from the various sections of the act which have been quoted. But the words of the 32d section are explicit, and although other preceding sections furnish .much reason for believing that a forfeiture in a case where the revenue could not be defrauded, might not be contemplated by the legislature, yet they are not so expressed as to control the 32d section. . The Active and her cargo, therefore, must be considered as' forfeited, except so far as they come within the 33d section.
. That section.is in these words> "Provided nevertheless, and be it further enacted, That in all cases " where the whole or any part of the lading, or cargo " on board, any ship or vessel, shall belong, bona Jide, " to any person or persons other than the master, oiVn- " er, or mariners, of such ship or vessel, and upon " which the duties shall have been previously paid or *< secured, according to law, shall he. exempted from « any forfeiture under this aet, any thing therein con- " tabled to the contrary notwithstanding."
In this casefhe libel states^ thaj Billings and-Morgan were owners of the vessel, and a certain ; Gates owner of the cargo A claim is filed by Billings and Morgan for tiie vessel and part of the cargo, and by. Oates .for the residue of the cargo, ft appears^ then, both fronrthe libel and claim, that a part of the cargo, did " belong, bona fide, to á person. other than the master, owner or mariners of the ship .or vessel." This part of the cargo comes completely within that part of the description which relates to .the ownership of the property. But the goods on board being liable to no duty, the duties could not. have been previously paid or secured..
The court considers this section as manifesting a-clear intention in the legislature to exempt from forfeiture a cargo not belonging to the owner, master or mariners, provided that cargo was not liable to duties. Whether this condition was produced by, a previous payment of duties, or by a perfect exemption from duties, must he immaterial. Duties cannot be paid or secured, according to law, on goods not liable, by law, to duty. The legislature must be understood, when saying " upon which the duties have been previously paid or secured according to law,3' to mean, " upon which the duties, if any, have been nreyiously paid," &c. '
; It is the opinion of the court, that the sentence of the Circuit Court be reversed as to so much of the cargo of the sloop Active as is claimed as the property of . Oates, and be affirmed as to the vessel ,and the residue of the cargo.
And it is directed to be certified that there was probable cause of seizure.
Judge Todd v/aa-absent in consequence of indisposition.