and agent disappears, and the parties become accomplices, will not be controverted. If this was a prosecution against the owner personally, and the confession of the master was adduced, to prove that he acted under the authority of the owner, the argument would be entitled to great consideration. But this is not a proceeding against the owner, it is a proceeding against the vessel, for an offence committed by the vessel, which is not less an offence, and does not the less subject her to forfeiture, because it was committed without the authority, and against the will, of the owner. It is true, that inanimate matter can commit no offence. The mere wood, iron, and sails of the ship cannot, of themselves, violate the law. But this body is animated and put in action by the crew, who are guided by the master. The vessel acts and speaks by the master. She reports herself by the master. It is, therefore, not unreasonable that the vessel should be affected by this report. But this vessel is the property of another, and his property, it is said, ought not to be wrested from him by evidence which would be inadmissible in an ordinary question concerning property. The Court thinks otherwise. The master is selected by the owner, as his agent, for the purpose, among others, of reporting the vessel on her coming into port. The report is not a criminal act, but one prescribed by law. It must state truly the voyage, and, however criminal that voyage may be, in reporting it, the master is in the precise line of his duty, and in the execution of an authority inseparable from his character as master. This report, then, which is in the very terms prescribed by law, contains, according to the mandate of the law, an averment of the place from which the vessel last sailed. This averment, then, the owner has authorized the master to make for him; and although he may certainly be permitted to controvert it, the court deems it prima facie evidence of the fact. Such evidence has often been considered in the Supreme Court sufficient to warrant a forfeiture in the absence of that testimony which would be in the power of the claimant, if innocent, and was so considered in the case of The Aurora (7 Cranch, 382)." The Circuit Court reversed the decree of the District Court, and condemned the vessel.

A proceeding in rem against a vessel or other thing for a forfeiture, because of the violation of a statute of the United States, is an entirely distinct proceeding from a prosecution of a person through

whose agency or procurement the offence has been committed; and it is well settled that no conviction of any person for the offence is necessary to warrant a condemnation of the res. This was decided by the Supreme Court in the case of The Palmyra (12 Wheaton, 1). That was a libel of information against the vessel to forfeit her for a piratical aggression committed in violation of the acts of Congress of March 3, 1819, and May 15, 1820 (3 U. S. Stat. at Large, 510, 600). The District Court restored the vessel without damages for the capture. The Circuit Court, on appeal, affirmed so much of the decree as acquitted the vessel, and reversed so much of it as denied damages, and itself awarded damages. The United States and the captors appealed to the Supreme Court, and the objection was there taken by the appellees that the offenders were not alleged in the libel to have been convicted, upon any prosecution in personam, of the offence charged in the libel, and that there must be a due conviction, upon a prosecution and indictment for the offence in personam, averred and proved, in order to maintain the libel in rem. Upon this point Mr. Justice Story, in delivering the opinion of the Court, says: "It is well known, that at the common law, in many cases of felonies, the party forfeited his goods and chattels to the crown. The forfeiture did not, strictly speaking, attach in rem; but it was a part, or at least a consequence, of the judgment of conviction. It is plain from this statement, that no right to the goods and chattels of the felon could be acquired by the crown by the mere commission of the offence; but the right attached only by the conviction of the offender. The necessary result was, that in every case where the crown sought to recover such goods and chattels, it was indispensable to establish its right by producing the record of the judgment of conviction. In the contemplation of the common law, the offender's right was not devested until the conviction. But this doctrine never was applied to seizures and forfeitures, created by statute, in rem, cognizable on the revenue side of the exchequer. The thing is here primarily considered as the offender, or rather the offence is attached primarily to the thing; and this, whether the offence be malum prohibitum or malum in se. The same principle applies to proceedings in rem, on seizures in the admiralty. Many cases exist, where the forfeiture for acts done attaches solely in rem, and there is no accompanying penalty

in personam. Many cases exist, where there is both a forfeiture in rem and a personal penalty. But in neither class of cases has it ever been decided that the prosecutions were dependent upon each other. But the practice has been, and so this Court understand the law to be, that the proceeding in rem stands independent of, and wholly unaffected by, any criminal proceeding in personam. This doctrine is deduced from a fair interpretation of the legislative intention apparent upon its enactments. Both in England and America, the jurisdiction over proceedings in rem is usually vested in different courts from those exercising criminal jurisdiction. If the argument at the bar were well founded, there could never be a judgment of condemnation pronounced against any vessel coming within the prohibitions of the acts on which the present libel is founded; for there is no act of Congress which provides for the personal punishment of offenders who commit any piratical aggression, search, restraint, depredation, or seizure,' within the meaning of those acts. Such a construction of the enactments which goes wholly to defeat their operation, and violates their plain import, is utterly inadmissible. In the judgment of this Court, no personal conviction of the offender is necessary to enforce a forfeiture in rem, in cases of this nature."

In the case of the embargo laws, the third section of the act of January 9, 1808 (2 U. S. Stat. at Large, 454) provided, in addition to the forfeiture of any vessel which should violate the law, that the master of the vessel and all persons knowingly concerned in the prohibited voyage should forfeit and pay, for every offence, a sum not exceeding twenty thousand dollars nor less than one thousand dollars, "whether the vessel be seized and condemned or not." In the case of the piratical aggressions, there was no provision made by the statutes for the personal punishment of the offenders. But, as is said by Mr. Justice Story, in his opinion just quoted in the case of The Palmyra, it has never been held that the prosecutions were dependent upon each other in either class of cases, that is, whether the forfeiture for the act done attaches solely in rem, without any accompanying penalty in personam, or whether there is both a forfeiture in rem and a personal penalty prescribed by the statute.

This doctrine was affirmed by the Supreme Court in the case of The United States v. The Brig Malek Adhel (2 Howard, 210),

which was a libel in rem against the vessel and her cargo for a violation of the Piracy Act of March 3, 1819 (3 U. S. Stat. at Large, 510). In that case it was admitted at the trial, that the owners of the vessel never contemplated or authorized the piratical acts complained of, and it was contended before the Supreme Court that the property was not liable to condemnation, because the owners neither participated in nor authorized the piratical acts. Upon this point, Mr. Justice Story, in delivering the opinion of the Court, says: "The next question is, whether the innocence of the owners can withdraw the ship from the penalty of confiscation under the act of Congress. Here again it may be remarked, that the act makes no exception whatsoever, whether the aggression be with or without the co-operation of the owners. The vessel which commits the aggression is treated as the offender, as the guilty instrument or thing to which the forfeiture attaches, without any reference whatsoever to the character or conduct of the owner. The vessel or boat (says the act of Congress) from which such piratical aggression, &c., shall have been first attempted or made, shall be condemned. Nor is there anything new in a provision of this sort. It is not an uncommon course in the admiralty, acting under the law of nations, to treat the vessel, in which or by which, or by the master or crew thereof, a wrong or offence has been done, as the offender, without any regard whatsoever to the personal misconduct or responsibility of the owner thereof. And this is done from the necessity of the case, as the only adequate means of suppressing the offence or wrong, or insuring an indemnity to the injured party. The doctrine also is familiarly applied to cases of smuggling and other misconduct under our revenue. laws, and has been applied to other kindred cases, such as cases arising on embargo and non-intercourse acts. In short, the acts of the master and crew, in cases of this sort, bind the interest of the owner of the ship, whether he be innocent or guilty; and he impliedly submits to whatever the law denounces as a forfeiture attached to the ship by reason of their unlawful or wanton wrongs." The Judge then cites, as authority for these positions, the cases of The United States v. The Schooner Little Charles and The Palmyra, and adds: "The same doctrine has been fully recognized in the High Court of Admiralty in England, as is sufficiently apparent from the Vrow Judith (1 Rob. R. 150); the Adonis (5 Rob.

R. 256); the Mars (6 Rob. R. 87), and indeed in many other cases where the owner of the ship has been held bound by the acts of the master, whether he was ignorant thereof or not. The ship is also, by the general maritime law, held responsible for the torts and misconduct of the master and crew thereof, whether arising from negligence or a wilful disregard of duty; as, for example, in cases of collision and other wrongs done upon the high seas or elsewhere within the admiralty and maritime jurisdiction, upon the general policy of that law, which looks to the instrument itself, used as the means of the mischief, as the best and surest pledge for the compensation and indemnity to the injured party. The act of Congress has therefore done nothing more on this point than to affirm and enforce the general principles of the maritime law and of the law of nations."

The conclusion drawn from these authorities is, that under the third section of the act of 1818, under which the libel in this case is filed, it is only necessary, in order to secure a condemnation of the vessel, for the libellants to show that the vessel has been fitted out and armed, or been attempted to be fitted out and armed, or been furnished, fitted out, or armed, with the intent on the part of any person fitting out, and arming her, or attempting to fit out and arm her, or procuring her to be fitted out and armed, or knowingly concerned in the furnishing, fitting out, or arming of her, that she should be employed in the service of any foreign state, or of any people, to cruise or commit hostilites against the subjects, citizens, or property of any foreign prince or state, or of any people with whom the United States are at peace; that it is not necessary for the libellants to prove the individuality or identity of such person, any further than to prove that the prohibited acts were done by some person; that it is not at all necessary for the libellants to show that the owner of the vessel or his authorized agent was concerned in the commission of the prohibited acts; but the law imposes upon the owner the necessity of withholding his property from being made by any person the instrument of violating the law; and that, if the law has been violated, the vessel may be forfeited if the prohibited acts have been committed by any person, whether the owner was concerned in the violation of the law or not.

The evidence given on the trial was voluminous, but was wholly confined to testimony put in on the part of the libellants, no evi