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V.

Betsey.

United States according to the course of the civil law, where the practice universally has been to try cases without a jury. Wood's Inst. Civ. Law, 133. 2 Browne's Civ. Law, 248, 249. 413. 415, 416. 1 Browne, 472.474. Maley V. Shattuck, (ante, vol. 3. p. 458.) 1 Domat, 460. s. 4. Such also was the understanding of the legislature, when they established a fee for the drawing of the interrogatories. Laws U. S. vol. 2. p. 222.

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The exception in the English statutes applies only to the ecclesiastical courts, and to those interrogatories, the answers to which might subject the party to ecclesiastical censures.

But the act of congress upon which this libel is founded, does not make it criminal in the person to trade to St. Domingo. It only subjects to forfeiture the property, and renders the party liable upon his bond.

Youngs, contra.

There can be no case of admiralty jurisdiction, unless it be a case under the law of nations. Cases of revenue, or of municipal seizure, are not cases of admiralty and maritime jurisdiction.

*The 9th section of the judiciary act, (vol. 1. p. 53.) merely gives to the district court jurisdiction of cases of seizure, but does not make them cases of admiralty. And in all cases at common law, the trial by jury is guarantied by the constitution of the United States. The act under which this prosecution is commenced does not direct the form of trial.

The district court, as a court of admiralty, is a court of limited jurisdiction; and in this case, the libel does not state that the seizure was made on waters which are navigable from the sea by vessels of ten or more tons burthen. The fact is not alleged which alone could make it a case of admiralty jurisdiction.

In England, a seizure for violation of the navigation act is tried by information in the court of exchequer, according to the course of the common law.

It is contrary to the principles of the common law to make a man criminate himself.

MARSHALL, Ch. J. said the court wished to hear the counsel for the United States on the question of fact.

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Fones. It is to be understood, then, that the court United States is satisfied as to the questions of law?

MARSHALL, Ch. J. No attempt has been made to distinguish this case from those of The Vengeance, 3 Dall. 297. and The Sally, (ante, vol. 2. p. 406.) Those cases have settled the law, and unless this case can be distinguished from those, the court does not think an argument necessary.(a)

*Fones. It is objected that it does not appear upon the face of the libel that the seizure was made upon waters navigable from the sea by vessels of ten and more tons burthen. But it is stated in the libel that the vessel was more than ten tons burthen, that the seizure was made in the port of Alexandria, and that the vessel had sailed from that port to the West-Indies, and back to Alexandria, from whence it necessarily follows, that the waters of the port of Alexandria are navigable from the sea by vessels of ten and more tons burthen. Besides, this court is bound to take notice of the ports of entry for foreign vessels established by law; and the port of Alexandria is one of those ports.

In the case of The Vengeance, the court officially took notice that the bay of Sandy-Hook contained waters navigable, &c.

If the jurisdiction appears by necessary inference from what is stated, it is sufficient.

C. Lee, contra.

By the 3d article of the constitution of the United States, the judicial power of the United States is extended" to all cases of admiralty and maritime jurisdiction. Congress could not make cases of admiralty and maritime jurisdiction; and under that clause of the

(a) C. Lee. I hope to show that this case is distinguishable from those; and to be permitted to argue at large the point of law, that this is not a case of admiralty jurisdiction. I argued the case of the Vengeance, and I know it was not so fully argued as it might have been; and some of the judges may recollect that it was rather a sudden decision.

CHASE, J. I recollect that the argument was no great thing, but the Court took time and considered the case well. The reason of the legislature for putting seizures of this kind on the admiralty side of the court was the great danger to the revenue if such cases should be left to the caprice of juries.

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Betsey.

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V.

Betsey..

United States constitution they could not give their courts jurisdiction of a case which was not of admiralty and maritime jurisdiction at the time of the adoption of that constitution. The question, then, is, whether, according to the understanding of the people of this country at that time, a seizure of a vessel, within the body of a county, for breach of a municipal law of trade, was a case of admiralty cognisance. It certainly was never so considered in England, from whence we draw all our ideas of admiralty jurisdiction. All seizures in that country for violation of the laws of revenue, trade or navigation, are tried by a jury in the court of exchequer, according to the course of the common law. There is nothing in the course of proceedings in rem which requires that they should be in a court of admiralty. A *court of common law is as competent to the trial of such cases as a court of admiralty. The high court of admiralty in England exercises no original jurisdiction in revenue cases. It hears only appeals in such cases from the viceadmiralty courts in the colonies, to whom the jurisdiction is given by an act of parliament. 2 Browne's Civil Law, 492. 2 Rob. 189. The Sarah. 4 Inst. 135. 139. 2 Browne, 75. 78. 3 Bl. Comm. 106. Parker, 23. 273.

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Nor were such cases ever supposed by the people of this country to be rightfully classed among causes of admiralty. It was one of our serious grievances, and of which we complained against Great Britain in our remonstrances to the king, and in our addresses to the people of Great Britain, while we were colonies, that the jurisdiction of the courts of viceadmiralty was extended to cases of revenue. Journals of the old Congress, vol. 1. p. 47. Such being the understanding of the people of this country at the adoption of the constitution, we are to presume that the words "cases of admiralty and maritime jurisdiction," did not include cases of seizure like the present. The 9th section of the judiciary act (vol. 1. p. 53.) is to be construed with a reference to the meaning of those expressions in the constitution; and if it cannot, consistently with the force of its terms, be reconciled with the constitution, it must yield to the superior obligations of that instrument. The words of that section of the act, as far as they affect the present question, are, “and shall also

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have exclusive original cognisance of all civil causes United States of admiralty and maritime jurisdiction, including all Betsey. seizures under laws of impost, navigation, or trade, of the United States, where the seizures are made on waters which are navigable from the sea by vessels of ten or more tons burthen, within their respective districts as well as upon the high seas: saving to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it; and shall also have exclusive original cognisance of all seizures on land, or other waters than as aforesaid, made, and of all suits for penalties and forfeitures incurred under the laws of the United States." "And the trial of issues in fact in the *district courts, in all causes, except civil causes of admiralty and maritime jurisdiction, shall be by jury."

The word " including means only, moreover, or, as well as.

The district court shall have exclusive original cognisance of all civil causes of admiralty and maritime jurisdiction, including, within its exclusive original cognisance, all seizures, &c. It does not mean including within the expression “all civil causes of admiralty," &c.. If such cases of seizure were civil causes of admiralty and maritime jurisdiction, there was no necessity to enumerate them, because the expression, all civil causes of admiralty, &c. certainly included them. If they were not civil causes of admiralty and maritime jurisdiction, congress could not make them such, nor by forcing them into that class, deprive the citizen of his right to a trial by jury. Congress had no such intention, for in the very same breath they say, "saving to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it." We have seen that in all cases of seizure for breaches of the laws of revenue, trade or navigation, the common law is competent to give a remedy; and, consequently, this suitor is entitled to it.

The several acts of congress creating forfeitures for breaches of the laws of revenue, &c. all seem to refer to the exchequer practice, rather than to that of the admiralty.

In the act for registering vessels, passed the 31st of

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v.

Betsey.

United States December, 1792, (Oswald's edition of the Acts of Congress, vol. 2. p. 134. 144. s. 4. and 16.) if the owner shall take a false oath, "there shall be a forfeiture of the vessel, &c. or of the value thereof, to be recovered with costs of suit," of the person taking the false oath. So in case of the sale of a vessel to a foreigner, it shall be forfeited in a certain case, "provided that if it shall be made appear to the jury before whom the trial for such forfeiture shall be had, that," &c. and the penalties and forfeitures under that act were to "be sued for, prosecuted and recovered," in such courts, &c. *as penalties and forfeitures under the act for the collection of duties, &c. Hence it is evident that congress intended that all cases of forfeiture should be tried by jury. The expressions in the act respecting registering of vessels, explain what may otherwise appear doubtful in the act concerning the collection of duties, as to the mode of prosecution.

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So in the act suspending intercourse with France, vol. 1. p. 245. offending vessels are made liable to be seized, "and may be prosecuted and condemned in any circuit or district court of the United States, which shall be holden within or for the district where the seizure shall be made."

But by the judiciary act no circuit court could take original cognisance of civil causes of admiralty and maritime jurisdiction; hence it is obvious that congress did not consider such seizures as civil causes of admiralty, &c. The forfeiture also is to accrue to any person "who will inform and prosecute for the same,' which shows that the proceedings were to be at common law.

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All the forfeitures under the act for the collection of duties, are to be recovered in the same way. Some of them being cases of seizure on land, must be tried by jury, therefore all must. And in sect. 71. (vol. 4. p. 391.) it is said, "in actions, suits or informations to be brought, where any seizure shall be made pursuant to this act, if the property be claimed by any person, in every such case, the onus probandi shall be upon such claimant." These expressions all indicate proceedings at common law only.

The 89th sect. in p. 427, speaking of the recovery

of

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