United States v. Rogers, 27 F. Cas. 890

United States v. Rogers

27 F. Cas. 890 | U.S. Circuit Court for the District of Rhode Island | 1838

STORY, Circuit Justice.

I am unable to persuade myself, that the present indictment is maintainable, under the circumstances. The act of 1835 (chapter 40) provides that “if any one or more of the crew of an American ship or vessel, on the high seas, &c., shall endeavor to make a revolt,” he and they shall, on conviction, be punished as provided in the act. To bring the case within the statute, the voyage, for which the seamen are shipped, must be a lawful one, and they must, at the time, be of the “crew” of an American ship, or vessel; and of course there must exist a lawful relation between them and the master. The statute of 1793, c. 52, § 1 [1 Story’s Laws-285; 1 Stat. 305, c. 8], enacts, that such ships- or vessels as are enrolled and licensed according to the provisions of that act, “and none others shall be deemed ships or vessels of the United States, entitled to the privileges of ships engaged in the coasting trade or fish*891eries;” and the whale fisheries are expressly within the purview of the act, as is abundantly seen in the form of the license prescribed by the fourth section. Now, it seems plain to me, that no registered ship is entitled to carry on the whale fisheries, as an American ship, or is entitled to the privileges of an American ship, under the statute of 1793, c. 52 [8], The third section declares, that it shall be lawful for the collectors of the several districts, to enroll and license any ship or vessel that may be registered, upon such registry being given up, or to register any ship or vessel, that may be* enrolled, upon such enrolment and license being given up. And the sixth section treats every ship or vessel not so enrolled or licensed, and found engaged in the trade, as liable to pay the same fees and tonnage in every port of the United States, as ships or vessels not belonging to a citizen or citizens of the United States; and, under certain circumstances, the ship or vessel and its lading become liable to forfeiture. My opinion, therefore, is, that this ship cannot be deemed an American ship, within the sense of the third section of the statute of 1835 (c.40),on which this indictment is founded; and the crew are r.ot the crew of such an' American ship or vessel as are contemplated by the act. On this ground the indictment would fail upon the facts. Indeed, my impression is, that, upon the manifest intent of the act of 1793, c. 52 [8], no registered ship or vessel can, while she remains registered, engage in the whale fisheries; but she must surrender her register, and be enrolled and licensed for the fisheries. And that if she should be found engaged in such fisheries without such enrolment and license, at least, if she has on board any article of foreign growth and manufacture, or distilled spirits, other than sea stores, she would be forfeited. The main purposes of the act would be utterly frustrated upon any other construction, and the main securities and privileges of the trade be defeated.

The district judge concurred in opinion that the facts did not support the indictment; and thereupon the district attorney entered a nolle prosequi.