50 U.S.

372
9 How. 372
13 L.Ed. 179

ROBERT M. HARRISON, UNITED STATES CONSUL,

PLAINTIFF,
v.
GEORGE C. VOSE.
January Term, 1850

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 C.
Vose (the defedant) 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 bring 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 bring
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
custom-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 Circuir 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 which 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.
292); 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 twenty-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 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.'
'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 customhouse. It is on the master's producing a clearance that the consul 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 not 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 emlouments, 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 that 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, &c., 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 one 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
business, 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 '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 to 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, &c., 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 the opinion to which you refer, of Mr. Attorney-General Mason, of the
11th of June, 1845.
'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 an 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 of 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, sealetter, 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 not 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 act to which this is a supplement.'

4

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 made
by Congress, as is sometimes objected, but it recognizes a limitation allowed 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 a 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 cases 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.

10

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 obliged 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.

11

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.

12

On examination, the words arrive and arrival, when used in respect to matters
of this kind in acts of Congress, will, in several 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.)

13

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.

14

It 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.'

15

The vessel in that case belonged to Eastport, and was destined to New York,

15

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 Passamaquoddy, including Eastport, for a tide, and put
ashore some 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.

16

Beside these analogies, showing the restricted meaning attached to the word
arrival in several laws connected with navigation, the latter clause of this very
act 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.

17

In construing all statutes, the whole of them must be scrutinized in order to

decide on the meaning of particular parts. 11 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.

18

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.

19

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
accord. 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.

20

Again, a vessel is not considered to arrive, so as to be regarded as importing her

cargo, unless she arrives within a port and 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 Cranch, 372.

21

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).

22

Nor does the master appear in this case to have forborne to enter and afterwards
obtain a clearance from any fraud or evasion. 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.

23

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 wages 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.

24

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.

25

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.
26

The first class of duties may have furnished some reasons for requiring that the
papers of vessels be lodged with the consul 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.

27

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 to 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.

28

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 and 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.

29

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.)

30

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.

31

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,
it should be removed by the provisions in the act of March 3d, 1817, made in
parimateria (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 clearance in due form from the collector of the port,' &c.

32

Had Congress in this act, or in that under consideration in the present action,
meant that the papers should be delivered to the consul when 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?

33

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 a 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 Parson v. Hunter, 2 Sumner,
419, is not against it, though the reasoning is, and seems to unsettle the
question.
34

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.

35

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 in 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.

36

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.
37

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 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. Whereupon, it is now here ordered
and adjudged by this court, that it be so certified to the said Circuit Court.