Page:Federal Reporter, 1st Series, Volume 9.djvu/177

 162 FEDERAL REPORTER. �struction of tBe provisions of the- act of congress upon this subject, may possibly admit of some doubt ; and the same is lef t for f urther consideration when it shall be necessary to pass upon it, as, under the cirGumstances of the present case, in the opinion of the court, the port of Hieres is not within such reasonable distance of the port of Toulon as to r'equire the master of a ship, arriving at Hieres, to deposit his ship's papers at the Toulon consulate, Such a requirement is unreasonable, and would demand of the master a neglect of other duties and impose upon him a burden whioh a ship-master ought not to be subjected to. �That the iship lay about four miles from the town of Hieres, which is about 20 miles from Toulon, are matters about which there is no controversy. There is some question as to the means of communi- cation between Hieres and Toulon. The consul, in his communica- tion to the department of state, which is admitted as testimony by consent, says "the two places are connected by a railroad Une, with four trains running daily, performing the passage within one hour." Whether all these are or not passenger trains is not stated ; neither does it distinotly appear that there were four trains each way, but only that there were four trains passing each day between the two places. The master's testimony is that after receiving the notice froin the consular agent at Toulon he applied to his consignees and was informed by them "that it was not the practice for American ship-masters arriving at Hieres to leave their papers at the Toulon consulate, and that, as the trains ran, if he went to Toulon he must be absent from his ship all night." That the master acted in good faith and believed the statemept of his consignees the court does not question, The burden is on the plaintiff to establish that the con- sular agent at Toulon was "within reasonable distance, and that communication with him was not di£&eult." �In Harrison v. Vose, 9 How. 878, whieh was an action against a consul similar to the present, the principle is laid down by Wood- bury, J., — �"That weinust begin the inquiry with the presumption that the defendant is innocent, and that the burden of proof to make out his guilt devolves upon the plaintiff. In the construction of a penal statute it is well settled that all reasonable doubts concerning its meaning ought to operate in favor of the respondent. * * * Where penalties are to be recovered greater f ullness of evidence is necessary to make out such a case. The proof must, then, bring the transaction within the spirit as well as the letter of the law, and must usually show a plain breach of both." — And in the opinion of the court this the plaintiff has f ailed to do. ��� �