THE SCHOCNER ANNE v. THE UNITED STATES

THE SCHOCNER ANNE v. THE UNITED STATES. A libel maybe amended.aflcr reversal for jwant of sub* standal averments. A iibri must aver specially all' th»i facts ■which constitute iio of-fence The noayntercourse act of March 1,1809, was iiv force between the 2d of Feb. and 2d of March, 1811, by virtue of the president’s proclamation of Nov. 2d, 1810. Absent....Tojíd, J. , THIS was an appeal from the sentence of the Circuit Court for the district of South Carolina, condemning the schooner Anne for violation of the non-intercourse law of March 1, 1809. § 6, vol. 9, p. 247. C. Lee, for the Appellant. 1. The libel in this case is too imperfect to warrant a sentence of condemnation. It does not state what kind of goods were taken on board j it merely says certain articles prohibited by' law. If they were French goods it was lawful to take them on board. This is a penal prosecution, and this Court has decided at this term in the case of (he Moppet (ante p. 389.J that the offence must be specially set forth in the libel. The place, of lading is not state.'}, nor the time, so that it may he known whether the act was done while the law was in force. It does not state whether the, goods were put on board with the knowledge of the owner,, or with the knowledge ot the master, but without naming either the master or the owner, it says, i*i the alternative, that the goods were put on board with ihe knowledge of the owner ojv master. The evidence cannot cure the defects, of the libel. 2. When these goods were put on board (between the 2d of February ahd the 2d of March, 1811) the act of March 1, 1809, was not in force, unless by virtue of the president’s proclamation <jf November 2d, 1810. That proclamation is not set forth in the libel, so that the act done does hot appear by the libel to be contrary to law. The libel ought to have stated that had before the 2d of March, 1811, so revoked her edicts as that they ceased to violate the neutral commerce of the United States; and that the president had declared it by.his proclamation. This is not like the revival or continuance of a law by a law; but when the revival of a law is to depend upon a matter of fact, the libel ought to state'the fact, that the Court may judicially know whether the law be revived or not. Story, J. This Court has decided at this term that the act of March 1, 1809, was in force in February, 1811. C. Lee. If that point lias been decided it was when I was not-present, and shall forbear to make any further observations; but if it had not been decided, I should have adduced the new evidence communicated to congress by the late documents to show" that in March, 1811, the Berlin' and Milán decrees were not repealed, and that the repeal did not take place till the 28tli of April. Johnson, J. That point was considered in the case of the Aurora. (Ante p. 382.) Jones, contra, The cases of the Iloppet and the Aurora have settled all the points in thiscasc. except the omission to state, in the libel, the presidents proclamation. The Court can take notice of the law, and therefore can notice the proclamation authorized by that law. Johnson, J. That point was decided in the Aurora. Jones. Then as to the objections to the form of the libel. This is not a case in which.-the Appellant could plead not guilty, and put the United States upon the proof of every thing alleged. But he is to put in his cláim upon oath, like an answer to a Ipil in Chancery". All that is necessary in the libel 'is to state, generally, the grounds on which the forfeiture is claimed. By referring to the law it is made certain. It is clear, by the terms of the law alluded to in the libel, that the must have been of British growth or manufacture j and such was the proof in the case. The doctrines relative to indictments at common law do not apply to the case. March 16th.... [MAJORITY — Marshall, Ch. J.] Marshall, Ch. J. The sentence of.the Circuit Court, in this case must be reversed for the defects in the libel, for the reasons stated in the case of the Moppet. Sentence reversed, and the cause remanded with leave to amend the. libel.