by the marshal. This proceeding is the ground of the present action.

It is made by law the duty of the collector of the revenue to board, or cause to be boarded, all vessels arriving from foreign parts, within the limits of the United States, or within four leagues of the coast, if bound to the United States, for the purposes specified in the law, and it is the duty of the person on board to remain there until the vessel shall arrive at the port or place of destination.

Before the war a collision of this sort could not have happened. The authority of the collector was complete and exclusive. How far the existence of war authorized the commander of the armed vessels of the United States to capture merchant vessels, belonging to citizens, which had arrived within the waters and jurisdiction of the United States, for a supposed violation of the non-importation act, is a question on which the opinion of the court is required.

The only question of difficulty is whether the boarding by the officer of the gun boat, in the manner pursued, amounts [190] to a capture as prize of war, exclusive of the boarding by the revenue officer, who demanded and obtained the ship's papers. No authorities having been cited on either side, we must decide the case as it is now before us.

There is no legal restraint on the officers of the navy to prevent them boarding a merchant vessel belonging to a citizen in the waters of the United States. Boarding for the purpose of examination is a legal act. Under the circumstances which have been stated, the court is of opinion that after the Superior was boarded by the commander of the revenue cutter, who obtained possession of the ship's papers, he was, in construction of the law, in possession of the vessel, and that she ought to have been delivered up by the officer of the flotilla; and that the carrying her out of the district by force was wrongful on the part of that officer, acting under the authority, as he conceived, of Commodore Murray.

It has been contended on the part of the plaintiff, and authorities have been produced to prove, that in time of war all trading with the enemy is unlawful, and that the goods of an ally or even of a citizen found trading with an enemy are lawful prizes of

war,

and confiscable as such. There can be no doubt that the law is so. If the Superior had been captured on the high seas trading with the enemy, or in violation of the laws of the United States, the vessel and cargo without doubt would have been prize of war. Such, I conceive, was the case of the Sally, condemned by the decision of the United States. I do not recollect particularly the facts in that case, but I have no doubt she was captured on the high seas, because she was captured by a private armed vessel whose right to capture is confined to the high seas. The case of the Nelly referred to in the opinion was a capture on the high seas. The reference, in the opinion, to the fourth, sixth, and fourteenth sections or the Act of June 26, 1812, seems to imply a capture at sea. The words of the [101] sixth section are: "And in case of all captured vessels, goods and effects which shall be brought within the jurisdiction of the United States, the District Courts of the United States shall have exclusive cognizance thereof, as in civil causes of admiralty and maritime jurisdiction,"

etc.

In the case of the Sally it was contended by the attorneygeneral, on the part of the United States, that as soon as she had on board her cargo, with intent that the same should be landed in the United States, they became forfeited, and that the forfeiture was complete and immediately attached, but the court was of a different opinion, and that she was lawful prize; there was no intervening claim in that case on the part of the revenue officer.

Seizures of vessels within the waters of the United States, for violation of the non-intercourse act, are considered as properly belonging to the revenue officers. This appears by the instructions of the executive department to have been the opinion of the government; and although the instructions were not received in time by Commodore Murray to prevent this contest, yet this clearly shows the construction put upon the law by the navy department.

After seizure by the collector, the vessel and cargo are considered to be at the risk, and in case of loss by the neglect or omission of the collector, he is responsible to the owner. Hence the court is of opinion that, admitting the facts to be truly stated, there was probable cause for the suit, which was the ground of this action. It would be rigorous in the extreme, to say that

there was not probable cause for the original suit when the attorney for the district, whom the collector was bound to consult, advised and directed the measure. And if it be admitted

that the district attorney was mistaken, it cannot alter the case as it respects probable cause, because if the case was of so doubtful a nature as that eminent counsel was mistaken, it affords a strong presumption that there was probable cause.

[192] The court are therefore of opinion, that there was a probable cause of action, and to the jury the case is now submitted. After such a decided charge, the jury retired for about ten minutes, when they returned with a verdict in favor of the defendant, Col. McLane.

UNITED STATES v. JACOBSON,

[U. S. Circuit Court, District of New York, 1817.-2 C. H. Rec. 131.]

CRIMINAL LAW-- INDICTMENT FOR DESTROYING VESSEL. The master may be indicted for wilfully destroying a vessel with intent to defraud her underwriters, though the owner be on board and consent to or command the destruction of the vessel.

The prisoner was indicted under the two sections of the United States Statute, vol. vii., p. 126, for sinking the ship Aristides, on a voyage from New Orleans to New York, on the 17th day of June last. The indictment contained thirteen counts, five of which were framed under the first, and eight under the second section. In these last counts the offense was laid as having been committed with an intent to defraud the American Insurance Company of six thousand dollars, the amount of the insurance on the vessel.

Fisk, District Attorney, Hoffman, and Griffin, for the prose

cution.

Wells, D. B. Ogden, and Price, counsel for the prisoner.

[143] His honor the judge stated to the jury in his charge that they could not be called together to discharge a more solemn and important duty. From the patience manifested by them

throughout this tedious trial he had no doubt they would do their duty on this occasion to the prisoner at the bar and to themselves.

At this late hour, so fatigued as the jury must be, his honor said that he should not minutely detail the testimony, nor even refer to more of the prominent facts than his duty required.

The prisoner was indicted under two sections of an Act of Congress of 1804; under the first section as belonging to and being on board, not as owner but as captain, of the ship Aristides, on a voyage from New Orleans to New York, ard wilfully and corruptly destroying that ship, or procuing her to be destoyed, she being the property of some citizen or citizens of the United States.

The charge against the prisoner under the second section of the statute is that he was the owner in part or whole of the same vessel, and destroyed her on the high seas with an intent to defraud the American Insurance Company, which had underwritten a policy of insurance on the vessel to the amount of six thousand dollars.

The first question for the determination of the jury naturally arising is, whether this vessel was wilfully destroyed; and the second, whether the prisoner at the bar was the author of such destruction.

The rule of law referred to by the counsel for the prosecution, that if the prisoner at the bar were aiding, abetting, and assisting in the perpetration of the offense, he is equally guilty with his coadjutor, is undoubtedly correct. It has been objected by the counsel for the prisoner that the evidence in this case is merely circumstantial. The rule in this court, even in capital cases, is that should the circumstances of a case be sufficient to convince the mind, and remove every rational doubt, the jury is bound to place as much reliance on such circumstances as on direct and positive proof; for facts and circumstances cannot lie. And if in this case the jury should believe, from all the facts and circumstances, that this prisoner was instrumental in the destruction of this vessel, either solely or in conjunction with others, however painful, it would be an imperious duty to convict him.

A very important circumstance in this cause urged by the

counsel for the prosecution is the want of cargo on board this vessel. Should the jury believe this, a strong motive is furnished for the perpetration of the offense charged against the prisoner; and we have a right to interpret this circumstance against him. Had there in truth been a cargo on board, the proof thereof would have been highly important to the prisoner on this occasion; and in the absence of all proof on that subject the jury have a right to infer strongly against him, should they think it was in his power, had such proof existed, to have produced it.

Might not the bill or bills of lading of this cargo at least have been produced? If a set were not put on board, or had they been lost, might not another set have been procured at New Orleans? Still the judge said that he did not intend to instruct the jury that the want of a cargo on board this ship was alone conclusive.

[144] It had, in the second place, been strongly urged by the counsel on behalf. of the prosecution that the manner in which this vessel was lost, without any apparent reason for such loss, independent of the fraudulent destruction and the conduct of the prisoner immediately preceding the time she was sunk, furnish conclusive evidence that he was either the author, solely or concerned with others, in such destruction. And it is said that all the circumstances attending that transaction show that this vessel might have been run on shore and the freight saved.

It had been with much reluctance that the court had proceeded even thus far in the testimony. His honor was aware that in a case involving such a vast variety of facts, a case in which everything had been said that could be, and every argument urged on both sides by counsel of the first eminence in the country, the jury had long since made up their opinion.

His honor concluded his charge by saying that he forbore giving any opinion on the merits of this cause; but would leave it with the jury on two grounds: (1) Should the jury believe from all the facts and circumstances in the case that there was no cargo on board this vessel; and (2) that with proper exertions she might have been brought on or near the shore by the prisoner, and those under his command-the jury might find him guilty.