and then going to sea without a clearance or giving bonds, this was the evil to which it was intended to apply a remedy. This may have been in the contemplation of congress, but the court were not bound to conclude that they had done what was intended, unless fit words were used for that purpose. No words of prohibition were to be found in the section. There was no interdiction to load at any time, nor without the intervention of the revenue officers. Penal laws generally first prescribe what shall or shall not be done, and then declare the forfeiture. This course is pursued in all the other offences created by the statute, and very generally by all the other penal laws of the United States. The court would not say that an offence can be created in no other way, but when there was such a departure from an almost universal rule, and from other parts of the same law, it suggests strong doubts whether the legislature intended to prevent in any other way than by withholding a clearance. The court was not without its doubts, whether it was meant to punish the mere act of loading secretly in any other way. This doubt, which was produced by the unusual and not very luminous phraseology of this section, was increased by a consideration of the very heavy and disproportionate punishment which would follow. The could court not, without great hazard of mistake, select from a law of great length, containing no less than one hundred sections, and a very great length and variety of provisions and penalties, any particular part, where the reference to the penalty was so certain as to apply it to this case, and as it was doubtful whether any offence was created by the act of 25th April, 1808, and still more so what were the penalties for its violation; the court could not persuade itself that the prosecution could be sustained."

§749. Although, as a general rule, it is well settled that penal statutes are to be construed strictly, and are

not to be extended by an equitable construction, yet it will be found equally well settled that they are not to be construed so strictly as to defeat the obvious intent of the legislature, nor are the words to be so narrowed down as to exclude from their operation cases which those words, in their ordinary acceptation, or in the sense in which the legislature obviously used them, would comprehend. This distinction has been recognized in several American cases. Chief Justice Marshall in one case,(a) admitted and recognized the rule, although under the circumstances of that particular case he did not admit its application. He remarked: "It has been said, that although penal laws are to be construed strictly, the intention of the legislature must govern; that if a case be within the intention it must be considered as within the letter, so if it be within the reason of the statute. The rule that penal laws are to be construed strictly, is perhaps not much less old than construction itself. It is founded on the tenderness of the law for the rights of individuals, and on the plain principle that the power of punishment is vested in the legislature, not in the judicial department. It is the legislature and not the court which is to define the crimes and ordain the punishment. It was true that the intention of the legislature must govern the construction of penal, as well as other statutes; but this was not a new and independent rule which subverted the old, it was a modification of the ancient maxim, and amounts to this; that although penal laws were to be construed strictly, they were not to be construed so strictly as to defeat the obvious intent of the legislature." He then states the rule and its qualifications as above stated by us, and then adds: "The intention of the legislature is to be collected from the words they

(a) The United States v. Wilterberger, 5 Wheat. 76.

use.

Where there is no ambiguity in the words, there is no room for construction. The case must be a strong one indeed, which would justify a court in departing from the plain meaning of the words, especially in penal acts, in search of an intention which the words themselves did not suggest. To determine that a case is within the intention of a statute, its language must authorize the court to say so. It would be dangerous indeed to carry the principle that a case that is within the reason or mischiefs of a statute is within its provisions, so far as to punish a crime not enumerated in the statute, because it was of equal atrocity, or of a kindred character with those which were enumerated. If this principle had ever been recognized in expounding criminal law, it had been in cases of considerable irritation, which t would be unsafe to consider as precedents forming a general rule for other cases."

§ 750. The principles of the rule laid down by Ch. J. Marshall have been admitted and applied in several subsequent cases. In The American Fur Co. v. The United States, (a) which arose under the act of congress of 30th March, 1802. The act, after defining in general terms the boundary lines between the Indian tribes and the United States, prohibited citizens of, or residents within the United States, crossing over the lines to hunt, &c., made it lawful for the military force to apprehend such persons. The twenty-first section, as amended by the act of 6th May, 1822, authorized the president to take such measures, from time to time, as he deemed expedient, to restrain vending or distributing spirituous liquors among such tribes. The second section of the act of 1822 authorized the president to direct Indian agents, governors of territories, &c., acting as superintendent of

(a) 2 Peters R. 358.

Indian affairs, to cause the stores and packages of goods of all traders to be searched upon suspicion or information that ardent spirits were carried into the Indian country by traders, in violation of the twenty-first section of the act, and declared that if any ardent spirits should be so found, all the goods of the particular trader should be forfeited. The libel charged that the defendant, as such licensed trader, did take and carry into the Indian country, with other goods, seven kegs of whiskey, &c., for the purpose of vending, &c., and upon search the same were found, and claimed that all his goods seized were forfeited. It was contended, that in order to work a forfeiture of the other goods, the ardent spirits must be mingled with the other goods at the time of the seizure, and that no part of the goods but that with which the spirits were found were liable to seizure. The district court had in effect ruled, that if the ardent spirits were found with a part only of the goods carried into the Indian country for the illegal purpose stated in the inforination, all the goods of such trader, designed for sale under a license, and seized in the Indian country, were liable to a forfeiture. The supreme court of the United States sustained this decision, and held, that this construction of the acts of congress was well warranted by the words of those acts, as well as the obvious policy which dictated them. The expression "all the goods of such traders," in the second section of the last act, although general enough, if it stood alone and unexplained by the context, to embrace all the goods belonging to the trader, wherever they might be found, were clearly restrained by the provision which immediately preceded them, so as to mean those goods only which might be found in company though not in contact with the interdicted articles. That the notion that those goods alone were liable to seizure amongst which the ardent spirits were found, could receive no countenance

from any fair construction of this section; that construction which was contended for would enable the trader, by the most simple contrivance, to protect the whole of his other goods from forfeiture. To effect this he would only have to keep the spirits separated from his other goods during their transportation to, and after arriving in the Indian country, so as not to contaminate those goods by placing them in immediate contact with the offending article. As this construction would sanction so glaring an evasion of the whole policy of the law, it ought in no case to be adopted, unless the natural meaning of the words of the act required it. Even penal laws, which should be strictly construed, ought not to be construed so strictly as to defeat the obvious intention of the legislature.

§ 751. The same principle was also applied in the case of The United States v. Morris.(a) In this case the defendant was indicted under the second and third section of the act of Congress of 10th May, 1800, entitled "An act to prohibit the carrying on the slave trade from the United States to any foreign place or country." The second section of this act declared "That it shall be unlawful for any citizen of the United States, or other person residing therein, to serve on board of any vessel of the United States employed or made use of in the transportation or carrying of slaves from one foreign place or country to another; and any such citizen or other person voluntarily serving as aforesaid, shall be liable to be indicted," &c. The question involved in the cause was, whether a vessel, on her outward passage to the coast of Africa, for the purpose of taking in a cargo of slaves, was "employed or made use of" in the transportation or carrying of slaves from one foreign country

(a) 14 Peters' R. 464; see also 2 Mass. R. 144; Paine, 209.