Majority
p. 297The United States versus La Vengeance.
Syllabus
ERROR from the Circuit Court for the diilrifl: of New York. - It appeared on the return of the record, that La Vengeance,' a French privateer, had captured and carried into New York, a Spanijb'lhip, called La Princejfa de AJlnrias; and that thereupon Don Diego Pintardo, the owner of the prize, filed a Libel in the Diilridt Court, complaining of the capture; alledging that La Vengeance- was illegally.fitted out within the United States; and praying reftitution and damages: ■ but on a claim, exhibited in behalf of the owners of the privateer, the Diftridl Court difmiiled the Libel with coilsand, upon appeal to the Circuit Court, that decree was ¡affirmed. The fate of Pintardq's Libpl determined, likewife, the fate of an information filed cx officio, by the Diftridl Attorney, claiming the privateer as a forfeture, upon the fame allegation, that ihe had been illegally armed and equipped in the United States, in violation of the adl of Congrefs: and. in both. thefe d'ecifions the parties-acquiefced.But a third proceeding had been inilituted againft the pri-* vateer, in which the Diilricl Attorney filed, cx officio, an information, Rating “ that Aquila Giles, Marihal of the fáid di Arrice, had fe i zed to the ufe of the United States, as forfeited, a certain fchooner, or veiled, called La Vengeance, with her tackle, apparel, and furniture, the property of fome perfon, or perfons, to the faid Attorney unknown; for that certain cannons, muikets, and gun-powder, to wit,-* 2 cannon, 20 muíkets, and 50 boxes of gun-powder, were between the-
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23d oí'‘May, 1794, and the 22J oí May, 1795,[2] exported in . the faid fchooner, or vejfel,from the faid United States, to nuit, from Sandy-Hook, in the Jiate of Nevj Jerfey (that is to fay, from the city of New York in the New York diftridt) to a foreign country, to wit, to Port-de-Paix, in the ifland of St. Domingo, \in the Weft-Indies, contrary to the prohibitions of the a£t, in fuch cafe made and provided,’* &e: And praying judgment of forfeiture accordingly. A claim was filed on behalf of the owners of the privateer, denying the exportation of cannon or múíkets; and alledging that the gun-powder coniH-tuted part of the equipment of the Semillante, a'frigate belong--ing to the Republic of France, and had been takenfrom her and put on board .the privateer, to be carried to Port-de-Paix, by order of the proper officer of the faid Republic. It was, alfo, alledged, that the fchooner, after her arrival at Port-de-Paix, was bona fide fold to one Jaques Rouge, a citizen of the French Republic, in whofe behalf the. claim was in'flituted.
After argument, the District Judge decreed, that the fchooner flaould be forfeited j but, upon appeal to the Circuit Court, the decree was rev$rfed, and Judge .Chace certified that the judgment of reverftll was founded on the following fades :—“ i ft. That front 18 to 20 muikets, were carried in the faid fchooner La ftengeance in the month of March or April, 1795, from the United States of America, to a foreign country, to wit, to Pert-de-Paix, in the. Weft Indies', But that fuch muikets were the private property of French paflengers on boards of the faid fchooner, carried out for their own ufe, and not by way of merchandize.”—2d. “ That upwards of 40 boxes of gun-powder were carried at the fame time, from the faid United States, in the laid fchooner to Port-de-Paix, afore-' laid : But that fuch gun-powder was taken from on board the S’-milliante frigate, lying in the harbour of New York, was a part of hot equipment, did not appear ever to have been landed in the faid United States, was carried out for the ufe of the French "Republic, was delivered to'the commander in chief at Pórt-de-Paix—;and was not exported wav of trade r merchandize.”
From this judgment of the1 Circuit- Court-, a writ of error was brought on behalf of the-United States, the general errors were affigned, and the Defmdnat in error pleaded in nullo eft erratum. The ¡flue was- argued on the loth of Augvft, by Lee, Attorney General of the United States, for the Plaintiff
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in error, and by Du Ponceau, for the Defendant[2] but no exception was taken, by the former, in reference to the merits ofthecaufe.
Lee, Attorney General
There are two grounds on which this writ of error is to be fupported—,ift. That it is a criminal caufe; and, therefore, it íhould never have been removed to the Circuit Court, the judgment of the Diftrift Court being final in criminal eaufes : And 2d. That even if it could be confi-dered as a civil fuit, it is not a fuit of Admiralty and Maritime jurifdiftion; and,-therefore", the Circuit Court íhould have remanded it to be tried by a jury in the Diftrift Cburt. . ,
lit. Point. All eaufes are either civil or criminal; and this is a criminal caufe, as well on account of the manner of pri>-fecution, as on account of the matter charged. Thus, Informa-tions area proceeding at common law, and clafted with criminal profecutions, 4 Bi. Com. 303 ; and the aft of'Congrefs which was framed to proteft the United States, at a critical moment, from a ferious injury, inflifts for the offence of violating its' provifions, a forfeiture óf the veil'd emploved in ’ exporting arms or ammunition, and a fine of rodo dollars. It is true, that it may be confidercd, in part, as a proceeding in' rem ; but ftill it is a criminal proceeding. There are but two. kinds of information known in England, one in the Exchequer touching matters of Revenue, the other in the King’s Bench, touching the puniihment of mifdemeanors. 3 Bl. Com. 262.' Now, the revenue of the United States is not at all concerned in this cafe; ,nor would'the Court of Exchequer take cognizance of a fimilar cafe in England. If, therefore, the United States do not claim La Vengeance for debt, nor as a mere exercife of arbitrary will, but on account of fome offence, fome crime, that has been committed ;• it follows, of courfe, that the procefs ufed to enforce the claim, muft, under any denomination, he, in fail, a criminal procefs; and, in all criminal eaufes, whether the trial is by a jury, or otherwife, the judgment of the Diftridb Court is final. Though penal fuits have fometimes been conftrued civil aílions ; it has only been done where individuals have been concerned, and, in one. inftancc, to admit the teftimony of a Quaker, on affirmation; but none of the exceptions to the .general rule wiij reach the prefentcafe. I Wills 125. 2 Stra. 1227. Coivp. 382.
id. Point. The 9th fedtion of the judicial a& declares, that
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“the trials of iffues in fa£l, in the Diftrift Courtsj in all caufes, except civil caufes of Admiralty and Maritime jurif-di&ion, ihall be by jury.” If there are .criminal caufes of Admiralty and Maritime jurifdiftion they would not be within the exception, and nmft.be tried by jury. But this criticifm is not in lifted upon; fince the prefent cafe cannot, in any fenfe, he deemed a civil fuit of Admiralty and Maritime jurifdiition. The principles regulating Admiralty apd Maritime jurifdiction. in this country, muft be fitch as were confident with the common law of England,- at the period of the revolution. How, then, would a limilar cafe be confidered in England? Blackjlane fays, “ all “ admiralty caufes muft be caufes arifing wholly upon the fea, “ and not within the prccinifs of any county” 3 Bl. Com. i'oó. And Coke had previoufly remarked, “ that altum mare is out of the jurifdi£tion of the common law, and within the jurifdiction of the Lord Admiral.”- Now, the offence here charged is that of exporting arms and ammunition out of the United States to Port-de-Paix. • The' act itfelf, indeed, without the intervention of the ftatute, would, doubtlefs, have baen lawful'; but an act of exportation, from the force of the term, muft be commenced here; and if done part on land, and part on fea, the authorities decide, that the admiralty cannot claim the jurifdi&ion. It is not made criminal to receive arms and ammunition at fea, but to export them from-the . United States, within which the often five a£t muft, therefore, originate, If, then, this is not a caufe of Admiralty and Maritime jurifdi&ion, though it fliould be allowed to be a civil caufe, ftill the trial ought to have been by jury. It may be proper ta add, that the a£t of Congrefs (fe£l. 4.) ex-prefsly adopts in this cafe, the mode of profecuting to recover the forfeitures and penalties incurred under the a<ft for more ef-ectually colleclii.gthe impoft, &c. (palled the 4th of//zrgít/?, 1790, 67.) which declares that on filing a claim “ the court fiiall proceed to hear and determine the caufe according to law :” but there is nothing in this provifion, that can be conftrucd to exclude a jury trial; anymore than in the form of a commiifion of Oyer and Terminer, which empowers the Judges “ to hear and determine,” and yet they always hear and determine, as to the fails, through the medium of a jury ; nor does the mere in-ftitution of a new mode of proceeding neceffarily refeind and ■annul, every pre-txifting procefs applicable to the fame fubjetSt. If, upon the whole, there has been amis-trial, and a reprefentation ihould be prefented to the proper department, the forfeiture would not-be allowed to enrich the.Treafufy ; but as a judicial qntftion, it is more proper that the error ihould be judicially eorreilecl, The Circuit Court ought to have remanded the
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caufe to the Diltriit Court, taken ¡neither of the views it exhibits : if it was a criminal caufe, flriilly fpeaking, it ought to have been remanded, becaufe it had not been tried by a. jury, andbecaufe the judgment of the Dillriit Court is, in fuchcafe, definitive :—if it was a civil fuit, but not of Admiralty or Maritime jurifdiilion, it ought to have been remandéd, becaufc, in fuch eafe, the iffue had not been tried by jury:—And in either cafe, whether criminal or civil, this court has a fuperintending and efficient concroul over the judgments and deerees of the Circuit Court.
The Chief Justice informed the oppofite counfel, that as the court did not feel any reafon to change the opinion, which they had formed upon opening the caufe, they would dif-penfe with any further argument -, and on the nth of Juguji, he pronounced the following judgment.
Weate.perfeilly fatisfied upon the two points that have been agitated in this caufe. In the firflr place, wc think, that it is a caufe of Admiralty and Maritime Jurif-diclion. The exportation of arms and ammunition is, limply, the offence ; and exportation is entirely a water tranfadlion. It appears, indeed, on the face of the libel, to have commenced at Sandy Hook-, which, certainly, mult have been upon the water. In the next place, we are unanimouily of opinion, that it is a civil caufe-: It is a procefs of the nature of a libel in rem ; and does not, in any degree, touch the perfon of the offender. •
In this' view of the fubjeil, it follows, of courfe, that no jury was neceffary, as it was a civil caufe ; and that the-appeal to the Circuit Court was regular, as it was a caufe of Admiralty and Maritime jurifdiilion.—Therefore,
Let the decree of the Circuit Court be affirmed with cojis.
But on opening the court the next day, the chief justice directed the words “ with coils” to be ilruck out of .the entry, as there appeared to have been fome caufe for the profe-, cution. He'obfervéd, however, that, in doing this, the Court did not mean to be underlldod, as, at all, deciding.the queftion, whether, in any cafe, they could award coils againll the United States 5 but left it entirely open for future difeuffion-