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Schooner Enterprise.

much more severity than an actual and open infraction of them by sailing with a valuable vessel and cargo to a foreign port. The Court is not disposed to impute to any public body so great an inconsistency, unless manifested in a way to leave no doubt of its being chargeable on them.

But if it were designed to prohibit the act in question under certain penalties, another and greater difficulty occurs, and that is to ascertain what these penalties are. They are to be the same in the language of the act, as are provided by law for the inspection of merchandise imported into the United States upon which duties are imposed. That penalties may be fixed by a reference to those which have already been established for other offences, is not disputed. The question here is, whether the designation be so certain as to enable the Court to discover what penalties were intended to be embraced by it?-Before effect be given to this part of the law, it must be ascertained what penalties are provided by law "for the inspection of goods brought into the United States." To aid us in this research, the Court is referred to the 50th section of the act to regulate the collection of duties. It was natural to expect, therefore, that some provision would be here found relating to such inspection, but instead of this, it contains only a regulation as to the time and manner of landing goods, and the penalties for landing them in any other way. The word inspection is not found in the whole section. Before, therefore, it can be said that these are those to which the appellant is become subject, the Court must be satisfied that landing and inspection are convertible terms, which they are not pretended to be. Goods may be inspected and yet never landed—or they may be landed without any previous inspection, and not forfeited. To obviate this difficulty, the Court is desired to bear in mind that the term inspection has two significationsthat it means the particular inspection or examination which certain articles, such as spirits, wines, and teas undergo-and

Schooner Enterprise.

also, that general superintendence and care which take place on the part of the revenue officers on the arrival of every vessel with a cargo in the United States. If it be used in these different senses, how is the Court to ascertain in which it is to be taken here? If in the first sense, which is its most usual and appropriate signification, then other sections of the collection law must be those which are referred to, where the penalties for neglect of inspection, or rather for landing without such inspection, are very different from those prescribed by the 50th section for landing in the night, or without a permit. If the latter sense be adopted, in order to give effect to a penal statute, of such doubtful import, it is not seen how it will bring home to the appellant the penalties of this section, which is relied on, one offence against which is the landing, even with an ordinary permit in the night time, which if done under the inspection and view of every officer of the customs, would not save the property from confiscation. It is certain that this section is silent as to any kind of inspection, and that a forfeiture might accrue under it, although every species of inspection mentioned in the collection law had been performed. It is the want of a special or common permit, as the case may be, not the want of inspection, which makes the landing an offence. The Court, therefore, cannot, without great hazard of mistake, select from a law of great length, containing no less than one hundred and twelve sections, and a very great variety of provisions and penalties, any particular part, where the reference is so uncertain, and apply it to the case of the appellant.

It is said that more prosecutions are depending for forfeitures under this clause of the law, than for any other violations of the embargo laws. This, while it is an incentive to greater caution, furnishes some proof that the law has not generally been understood in the sense now put upon it. For certainly these laws might have been broken at much less hazard, and with greater prospect of impunity.

Schooner Enterprise.

It was also mentioned that in several of the districts the law had received this interpretation. Without a full report of these decisions, it is impossible to say on what grounds the Courts proceeded-or where these appear on the record, the sentence may have passed sub silentio, or by default.

In the case of the William and Samuel from the District Court of Pennsylvania, it is admitted there was no argument en this point; so that this sentence can afford no evidence of the opinion of the learned Judge who presides there; whose decisions are in such general and high estimation, and will always receive the most respectful consideration from this Court.

Upon the whole, it is so doubtful whether any offence were created by this section of the act of the 25th of April, 1808; and still more so, what are the penalties for its commission, if any were created, that the Court cannot persuade itself there is ground for this prosecution.

The sentence of the District Court must therefore be reversed.

G. GRIFFEN for the appellants.

N. SANFORD, D. A. for the respondents.

Note-See the case of The Paulina, 7 Cranch, 52, where the same point was decided.

Brig Little Ann.

THE BRIG LITTLE ANN.

The jurisdiction of the District Courts derived from that clause in the judiciary act declaring that they shall have "exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, including all 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; and 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," does not extend to cases of libel for seizures made in another district from that where the proceedings are instituted. But the District Court of the district where the seizure is made, has exclusive jurisdiction.

THIS was an appeal from a sentence of condemnation in the District Court of the Southern District of New-York.

The libel stated that Stephen Decatur, commander of the frigate Chesapeake, on the 13th day of August, 1808, seized the brig Little Ann and cargo on the high seas as forfeited to the United States. That on the 11th of August, while the Little Ann was lying at Bristol, Rhode Island, and bound for a foreign port, her cargo was laden on board in the night, without any license or permit, and without inspection, and was afterwards exported from the United States to the high seas against the act laying an embargo and the supplementary and additional acts.

William D'Wolf and Henry D'Wolf, the claimants, plead, that they were eitizens of the state of Rhode Island, and owned the said vessel and cargo at the time of her seizure, and that she was seized within ten miles of the shore of Point Judith, within the jurisdiction of the District Court for the district of Rhode Island; and that Newport and not New-York, was the nearest port to the place of seizure. Wherefore they insist

Brig Little Ann.

ed that the alleged offence was subject to the jurisdiction of the District Court of Rhode Island, and not of New-York. To this plea the libellants demurred.

C. D. COLDEN, J. O. HOFFMAN, and C. J. BOGERT, for the appellants.

N. SANFORD, D. A. for the respondent,

LIVINGSTON, J. Without entering into the merits of this prosecution, or looking at the proofs, the Court is desired preliminarily to say whether the proceedings below were not coram non judice, and whether the sentence on that account should not be reversed.

It appears on the pleadings, and is at present so to be taken, that this seizure, which was for a violation of the embargo laws, was made within the district of Rhode Island, and that the res was afterwards brought within this district, where it was proceeded against and condemned. From this statement it is clear, that it is not necessary to inquire whether a libèl may not in some cases be filed without a previous seizure, because a seizure is here stated, which it is admitted was neither within this district, nor on the high seas. The Court has therefore forced upon its consideration how far such a seizure sanctioned the jurisdiction which was assumed.

In ascertaining what portion of the general powers delegated by the constitution of the United States to the federal judiciary, is to be exercised by any one of the inferior Courts, recourse must be had to the laws creating the tribunal, and designating its jurisdiction. On this point the embargo laws throw no light. All they do is to declare the offences, and to refer the different cases of forfeiture, &c. to the Courts of competent jurisdiction. To settle this competency in a given case we must look at the act establishing the judicial Courts

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