The Æolus

delivered, the opinion the court, and after stating the case, proceeded as follows i

It is not necessaty or important, oh this occasion,inquire ipto the national character of the ¿Eó¡us, or to ascertain in whom the proprietary interest of the cargo resided, at the time of seizure; because, whether *402Russian, British, or American, they-are both equaflyr liable to forfeiture, if (he offence stated in the libel ‘has. been committed. The cargo, being avowedly of- the growth, produce, or manufacture of Great Britain,-it is conceded that a forfeiture must follow/ if. the fact, of a voluntary importation into the United States be made Out. Yet, in deciding this question, it is ijnpossible to discard- entirely from .view some of the circumstances which preceded, a-nd took place after (he arrival of tliis -vessel at Bass-Harbour,,which, -although not immediately connected, with any- calamity which -may- have brought her there, are not at1 all calculated to excite much sympathy or to call for any extraordinary exertion of credulity, while listening to the tale of distress,-on which every hope of restitution is now resled.

Mr. Scholtz, a Russian merchant'at Archangel, in time of war between-this country and Great Britain, and during the existence of our non-importation act, Toads at that place no- less than five brigs with the products of Russia, which he- commits to the care of Mr. Morgan, a merchant at Liverpool, with instructions,' as is-said, to invest' the proceeds of those cargoes in such' British manufactures as he might judge suitable for salé in the Havanna. Mr-. Morgan, who,, at or about the time of-loading thése vessels, was at Archangel, proceeds to Liverpool,- disposes of the. cargoés there, charters the Russian brigiEólus, and déspatches her for the Havanna, tb the address of certain merchants there, who are informed by a letter from him of-'thé. origin of this adventure, and that he has sent to them a ..cargo, , in conformity with the or*403ders of bis principal, which he begs them to sell at good, or even saving prices, and after investing proceeds in certain produce, to load the iEólus and send her to Mr. Scholtz, at Archangel, i'he instructions of. Mr. Scholtz, in an affair of so much' magnitude, no where-appear in the proceedings ; but if they were, in truth, of the kind stated by Mr. Morgan himself,' in his letter, which has just been referred to,'we shall find there was a total departure from them ; for not only was the cargo of the jEoIus the most unsuitable which could jiave been selected for a warm climate ; but the Havanna, to Which alonf, by his own account, he was to send the iEolus, was to be her port of destination only incase she-could not enter a port of the United States. When we find so great a departure from instructions as would inevitable fix upon the agent, a responsibility, to the whole extent of the property Committed to his charge,'we may-well be permitted to doubt .of their existence altogether, and to suspect that Mr. Morgan is acting.in the character of a principal, arid not, as he would have us believe, in that of a hutable subordinate agent. This suspicion is riot diminished, when we find, that although this suit has been pending between two and three years, Mi. Scholtz has interfer- . ed With it neither in petson,.nor has he'thought it worth his while to appoint any agent for that purpose.

After thé purchase of a cargo principally-calculated for á nprthen market, and worth not less than 104,3Í1 dollars 37 cents, it is committed to a -supercargo, to ■ whom no other than verbal instructions are given. ■ This gentleman styles himself a commissioned *404officer in the Imperial .navy of Russia; and on hit arrival in the United, States can speak nothing but broken English. He. proves, however, to be a n&turalborn citizen of Massachusetts, who had been - absent from his country not more than four-years, and who, therefore, as may well- be supposed, was not long In recovering his vernacular tongue,- which we. soon find liim speaking with as much facility as if he had never'been absent from his native state. Mr. Williams, for that is the name of -the supercargo, Is directed by Mr, Morgan to call off Wi$easset, where he, would . receive -orders .from Mr. Wood, .who, .it steems, although it does not appear how, was fully ap. prised of. the destination of this vessel, and of $he time when she would probably be in his neighbourhood. Whence he derived this knowledge, or when, he has not deigned to inform the court, and although claiming so valuable a property lor the o vrners -of vessel and-cargo, he has shown no authority whatever from either of them for interfering In this way; and when, after a la pse of more than two years and a half from the .first institution of proceedings in the •district court, interrogatories are addressed to him, for the purpose of discovering who were' the real owners of this property, and whether, they had appointed him,' and whert, as their attorney,, and some o.ther matters which he alone could haVe rescued from the. mystery in which they are now involved, hé produces no authority whatever, and contents himself with informing the commissioners, that being ^ge»t of the claimants,, he thinks itimproper, at that *405time to answer afty interrogatories, and,shall, therefore, decline doing so. ... .

... . The ^lolus leaves,Liverpool without'being furnished with a chart of the. Havanna, or the coast adjacent, and two days after her departure the master is ordered by the supercargo to proceed off the port of Wiseaéset, which was accordingly done, and all idea of going ito the Havanna, if any were ever entertained, appears^ ¡from that moment, to be abandoned; and she is .accordingly fotind, after a boisterous and long winter’s pa$r--sage, in a high latitude off the American coast. N.ew^ if there be nothing'criminal in a vessel coming qn. our ■coast, with a boriajide intention of ascertaining wherthi er under existing laws, she would be permitted town ¡entry; vet, when a vessel is found in this. situation, in a boisterous season of the year, and so very, mUch.oujt of the way of the place to which it was pretended- shé was .destined, if our ports were shut,' apd then relies on-the pléá of distress for' the coming in, a court will require the most satisfactory proof of the necessity-which is urged m her defence.

To make out this necessity, the principal;, if sot the only witness,produced, are the master and supercargo Oat of fifteen persons, these two are selected, and relied bn to establish this all-important fact. No .survey is had of the vessel or cargo either before or after it: was discharged. To these two .witnesses, if they stated a sufficient distress, which is not conceded, very serjt ous objections lie. The master, is so much.implicated Hi till the transactions of this nature, that it must *1- - waiys be mere or less hazardous fora claimant tores-'---1 *406to his testimony, when other ' and. less exceptionable witnesses 'are at hand. -Not only some inf the seamen •on board might have -been examined; but why not call on persons residing at the place where the vessel dis* ^charged, to examine her, and .to give their testimony, Such persons were at hand, for the master speaks of three ship masters who surveyed her, and gave their opinion. As-no survey ifc-produced and neither of these ship masters is a witness, the court can take no notice' of any opinion they may have entertained or have given to the master of the ASolus. The testimony of the supercargo on this subject, if if made out an adequate cause for coming in, would have beep entitled to more credit if he had behaved throughout this transaction in. a manner more consistent than he appears to have done. . But independent of this conduct, there are parts of his testimony which it is very difficult'to. believes and which throw a shade over the whole. He swears' that his instructions, for Morgan Were not in writing, and that he had never received er-1 ther from him or Scholtz, any l.ettér concerning his voyage. It is incredible that any man should be entrusted with, so large a property, without‘other than verbal instructions; or, at any rate,, it is so entirely out of the .common course of business, that the court cannot bé blamed for disbelieving it. But theré-, aré other cir cumstances which detract much froialka«&?edii of these two witnesses. There is every reason to' believe from other evidence in the canse,, that when the brig came info Bass-Harbour, neither of them thought of justifying their conduct on the ground of necessity. *407This suggestion was made to them by Mr. Wood, and not until they had been there a week or longer. This fact is proved in a way to admit of but little. doubt of its accuracy ; not only by the profound silence which was observed on this subject by the master and others* for some, time after the arrival of the brig, but by positive testimony, which establishes that the' allegation of distress was a, matter of concert between the superr cargo of Mr. Wood. It also appears by other witnesses in the cause, that the ¿Eolus, notwithstanding the injuries which she had received, might have proceeded to-the West-Indies without any other repairs.than such as might have been put-qn her .at sea. Upon the whole, the court is of opinion that the. coining in- of the iEelus Was voluntary, and not produced by any distress whic-h' could justify the measure^ aqd that thereiipoh fee sentence of the circuit court must be affirmed with costs;.

disséntqd. This valuable vessel, with a cargo worth. 120,000 dollars, is claimed' as Russian property. She was libelled . as forfeited under the .provision-of the non importation act, and all questions respecting proprietary interest I consider irrelevant to the case. The excuse for putting into the port of Bass-Harbour was distress, and, .as in the case of the New-York,a the minority of the - court are of opinion, that she ought,to have been permitted to store her cargo, repair, ire-ship it, and depart. Such evidently . was the policy of the law. under which she was seized,. which, had for its object the *408««elusion of British goods’whereas .this seizure legalized, their i at rod uc lion into the country*

It is urged .ii this ..case,. that a variety ‘bf circuí»!-* stances ■ indicated a fraudulent intention. That the examination of the witnesses . exhibits á melancholy view: of depravity of morals, I freely admit l, ' but the observation is fully as applicable to the testimony for. the prosecution, as that against it.-

The two principal .circumstances.relied on as indicia' of -fraud, to . wit, her..clearing out for Havanna,and her having a cargo adapted'to a northern market, admit of an explanation perfectly consistent with innocence? For it is well known that á neutral never clears out froan a .British port to-a port of their enemy '»- and.kp té bier'hawing a cargo adapted to a northern market, it , is precisely what she avows-, that her intention-:. Wab-b' deposite it in-that market had the- prohibition Beeataken off on her arrival.

Under thesé cürcumsfánees, it appears to-me.that the only question in the case .was-, whether the distress wag-accidental or factitibiis; If there had been-any fraudulent means made use of toi produce the injury sustained condemnation ought to follow. But if produced By canses not within the . control óf man, even though thb distress may not have been deemed, sufficient to entitle the party to'a permit to unlade and refit, yet it was no sufficient causé for condemnation, and'the vessel should have been ordered off. That the distress in this case was not factitious, nor very • inconsiderable, there is every reaáon,to believe. The .vessel had had a voyage of. seventy-five days; nearly double What might- reasonably have been provided, for she had *409Shipped a sea which carried away her. railings, hftd washed overboard one of her passengers ; her .shroudsaiíd bow-sprit weré materially damaged, and her water short. Under these circumstances, I must think that this collector was. less under the influence of humanity and a s°nse of duty, than that of avarice, in making this seizure. Had he libelled her as enemy’s property, X should have thought the case not destitute of reasonable grounds ; but it was not his interest to convert her into a drojt of admiralty, and it is not our; province* under this libel, to admit any thing into the case which Can bear the appearance of charging with one crime* and trying for another»

Decree affirmed