APPEAL from the circuit court for the district of Massachusetts. The offense charged in the information filed, in this case, in the district court of Massachusetts, is, that the ship Edward, on the 12th day of February, 1810, departed from the port of Savannah with a cargo, bound to a foreign port with which commercial intercourse was not permitted, without a clearance, and without giving a bond in conformity with the provisions of the act of congress of the 28th of June, 1809. A claim was interposed by George Scott, of Savannah, in which he alleged, that the ship did not depart from Savannah, bound to a foreign port, in manner and form as stated in the information. The district court condemned the ship; from which sentence an appeal was taken to the circuit court, where the district attorney was permitted by the court to amend the information, by filing a new allegation, that Liverpool, in Great Britain, was the foreign port to which the ship was bound when she departed from Savannah, and that she did so depart without having a clearance, agreeably to law. The circuit court affirmed the sentence, and the cause was brought before this court upon an appeal.
Harper, for the appellants and claimant. 1. The object of the 3d section of the act of the 2d of June, 1809, was to prevent the going to prohibited ports. When this supposed offence was committed, there were no prohibited ports, and the legislature could never mean to attach the penalty to ports permitted temporarily. If Liverpool was not, at the time, a prohibited port, and there were no other prohibited ports, the vessel was not obliged to give bond. Before the voyage was undertaken, it had become impossible to commit the offence with which the vessel is charged. 2. The information charges the vessel with going to a forbidden port without a clearance. But Liverpool was not a forbidden port, and, therefore, the information cannot stand. 3. The allegation was, that the vessel proceeded from Savannah; but the proof was, that the voyage was undertaken from Charleston. The prosecutor could not lawfully prove a proceeding from any other port than that alleged in the information.
The Attorney-General and Law, for the respondents, argued, 1. That the laws, under which the supposed offense was committed, were in force at the time. [But as the argument is fully stated in the opinions of the judges, it is omitted here.] 2. Common law strictness is not required in these proceedings, and it is unreasonable to insist on the particular foreign port being named. The prosecutor had a right to prove a voyage from Charleston. It has been decided in this court, that it is sufficient if the offence be laid in the words of the act. Even the rules of the common law applicable to indictments do not require time and place to be proved as stated; and the only case where a variance is fatal is, where it affects the jurisdiction of the court, as where criminal proceedings are required to be local.a In no case, in civil proceedings, does the common law consider the venue as matter of substance, except where both the proceedings are in rem, and the effect of the judgment could not be obtained if the offence were laid in a wrong place.b The circuit court had a
2 Hawk. c. 25. s. 83. c. 23. s. 88. 91. 2 Hale's P. C. 179, 180.
Cowp. 176. right to amend the proceedings, but the practice of this court is to remand the cause to the circuit court with directions to amend.
WASHINGTON, J., delivered the opinion of the court, and, after stating the facts, proceeded as follows: