United States v. Kennedy , 4 Wash. C. C. 91 ( 1821 )

WASHINGTON, Circuit Justice

(charging jury). The opinion ot the court as to the true construction of the act of congress on which this prosecution is founded is, that it is confined to the transportation of slaves from one foreign country to another, for the purpose of trafile. It must be admitted, that the expressions of the second section of the law are sufficiently broad to comprehend the case of a mere transportation; although there is no evidence that a traffic in slaves was contemplated. But when we take into view the obvious policy of the various laws on this subject, the title of this law and the particular phraseology of the third section, which differs from the second only in the circumstance that the one relates to a service on board of a vessel of the United States, and the other to a service on board of a foreign vessel so employed; we are satisfied, that the legislature did not intend to go farther than to prohibit our citizens from engaging in a traffic in slaves, between one foreign country and another. This point was decided in this court in the case of The Tryphenia. [Case No. 14,209.]

It is objected by the counsel for the defendant that the second section speaks of slaves in the plural number, and that the offence charged in this indictment being for the transportation of a single slave, the case is not within the act of congress; and 1 Bl. Comm. 88. was relied upon. As this objection, if a valid one, appears upon the indictment. it will be unnecessary for the court to notice it in this stage of the trial. Should the defendant be convicted, his counsel can move that point in arrest of judgment.

It is next contended in behalf of the defendant. that as he commanded the vessel, he cannot be said to have served on board of her. We think there is no foundation for this objection. The master is the servant of the owner, and may, under this act of congress at least, be said to serve on board of his vessel; if he is not included under these general expressions, there is no other part of the act which embraces his case.

If then the jury should be satisfied that this negro boy was a slave at St. Thomas, and was carried to the island of Cuba for the purposes of sale, or that he was in fact sold by the defendant; then it is the opinion of the court that you should find him guilty; but not otherwise As to the credit to be given to the witness examined in support of the prosecution, you must judge.

Verdict, not guilty.