UNITED STATES v. The PENELOPE, 27 F. Cas. 486

THE COURT (charging jury). I do not think that this case, being one I have not had much time to consider, should be left to rest on my opinion. Although not one so well •digested, as more deliberation would have enabled me to deliver, I shall give a direction sufficiently decided to afford an opportunity of taking an exception to it. My habit is not to leave points of law to the jury; it being the province and duty of the court to take on itself the responsibility for them, where time is afforded to form a deliberate opinion; which can seldom be done in the hurry of a trial in new and extraordinary cases.

In this case it is not necessary for you to embarrass yourselves (nor shall I set the example) with passing in review all the acts of congress alleged to be in pari materia. It is considered to be a proper course to pursue in argument by counsel, but it is a dangerous and unnecessary conduct for courts, to decide on a number of acts said to be in pari materia, when a question arises only on a construction of one.

These acts may (as some of them have been) be brought before me for construction directly,, and it would be unsafe to commit myself by an incidental opinion. .Every law has something peculiar in its intention and object; the same words may on some subjects be of different import from that in which they are used on others. I often find one at a time an over match. I join the counsel on both sides in recommending to you to divest yourselves of all political considerations and consequences.

The only point is that of a forfeiture; and the only enquiry is whether the individual whose property is placed under your view, is of the description intended by the law to incur it. The facts are fairly and fully in proof. The arguments and suspicions adduced to suggest ideas of the investment of American capital, used for the outfit or lading of the vessel in question, are not conclusive, or grounded in proof: they are out of the case.

A British subject, owning a British vessel, comes into a port of the United States with private views, to wit, to convey home his children, who .had been placed here for education: having funds and commercial credit in our city, he was advised to use them in an enterprise inhibited to our own citizens, but, as he was taught to believe, not forbidden to aliens. On whatever ground he formed his opinion, he must take the risk attending it. Arguments of innocent, or mistaken intention, are to be used in applications for mitiga-tions of forfeitures; but are here irrelevant.

The power of relieving from penalties, is in another department. He had the law before him, and must hazard the consequences of any act which produced an infraction of it. What were his motives is not, with us, so material, as what were his actions. It seems clearly proved that he did not come here to establish his domicil; but for a particular and transient purpose. There seems no disagreement about the general meaning of the words “inhabitant and resident,” but it is said that the act of congress, under consideration, means any personal residence, while the business was in operation which incurs the forfeiture.

A commorancy for the shortest time is held to be a residence, to bring the person within the act. The words are not “residing or being,” but “person resident,” throughout. Other acts of congress wherein the word, or words, are used, are brought to explain this; and yet they may, on examination, be found to be as deficient in perspicuity as this; which, on some future occasion, may be enlisted to explain them. Reasoning founded on the pari materia plan, is frequently a petitio principii, a begging question, or expounding one of unknown or doubtful expression, by another.

The act produced to elucidate, is as little clear as the other. I recollect no direct judicial decisions on those acts, affecting the point now before us. It is true that persons “being” within our jurisdiction, owe allegiance as it respects crimes, for the commission whereof they are punishable. But this is an highly penal act, and must have a strict construction. Here is a forfeiture declared in the case of a person, not only actually “being,” but one who must be described by the words “any person or persons resident within the United States,” to be included in its purview.

Congress may have intended to comprehend one “residing or being.” If resident means nothing but mere momentary commorance, where it is even coupled with “being,” it might as well be left out. The question seems to be whether they inserted “resident” without the legal meaning generally affixed to it. If they have omitted to express their meaning, we cannot supply it. Our duty is to expound, and not to make acts of congress. In so penal a case what can we do better than to take the legal

interpretation? That I may not mistake, I'will read, from notes in other cases, what I have said on a similar point, over and over again. In the case of Hylton v.

Brown [Case No. 6,981] in the circuit court, and cases in this court, the following has always been my definition of the words “resident,” or “inhabitant,” which, in my view, mean the same thing. “An inhabitant, or resident, is a person coming into' a place with an intention to establish his domicil, or permanent residence; and in consequence, actually resides: under this intention he takes a house, or lodgings, as one fixed and stationary, and opens a store, or takes any step preparatory to business, or in execution of this settled intention.

The time is not so essential as the intent executed, by making or beginning the actual establishment, though it is abandoned, in a short or longer period.” A mere transitory coming for a special purpose, a mere transient visit, does not fall within the legal meaning of the word “resident.” He must have the intent of staying, or abiding, for permanent purposes; and begin it, though he does not continue to prosecute it. On the meaning, if doubts exist in common

interpretation, we must be governed by the legal definition. The attorney of the district does not consider it a clear case, because he has taken great pains, and brought together a mass of information. For the purpose of affording opportunity for exception to my opinion, though I have had no time to consider it maturely: I say that this claimant is not a “resident,” or within the meaning of the act of congress on which the prosecution is founded. It is a case of great importance in its consequences, and ought to be well considered.

Though I have thus directed you, this being a case partaking of crime, a malum prohibitum, though not morally criminal, you have, perhaps, a latitude both as to law and fact; and under all these circumstances, and with this opinion of the law, I leave you to decide according to your unbiased judgments. Verdict for the claimants. No appeal was prosecuted in this case.