APPEAL from the decree of the circuit court for the
Massachusetts district, affirming the decree of the district court,
condemning said vessel.
This ship was seized in the port of Boston, in October, 1810;
and the information alleges, that the ship, in March, 1810,
departed from Charleston, S. C., bound for a foreign port, to wit,
Liverpool in Great Britain, with a cargo of merchandise on board,
without a clearance, and without having given the bond required by
the Non-Intercourse Act of the 28th of June, 1809, ch. 9. s. 3. The
claimants admitted, that the ship proceeded with her cargo (which
consisted of cotton and rice) to Liverpool; but they alleged, that
the ship originally sailed from Charleston, bound to Wiscasset, in
the District of Maine, with an intention there to remain, until the
Non-Intercourse Act should be repealed, and then to proceed to
Liverpool. That by reason of bad winds and weather, the ship was
retarded in her voyage, and on the 10th of May, 1810, while still
bound to Wiscasset, she spoke with a ship from New-York, and was
informed of the expiration of the Non-Intercourse Act, and
thereupon changed her course, and
Page 14 U.S.
20, 21
proceeded to Liverpool. The manifest states the cargo to have
been shipped by sundries, consigned to Mr. P. Grant, Boston.
The Attorney General and Law argued the case for the appellees
on the facts, and cited the case of the Wasp,a which was an
information under the same section of the same act. They contended,
that the burthen of proof was thrown upon the claimant, inasmuch as
the law requires a bond to be given, if the ship was bound to a
port then permitted, conditioned that she should not go to a
prohibited port.
Dexter, for the appellants and claimants, stated, that the suit
was not founded on the same act with that in the case of the
Samuel;b but that the same objection existed as to the form of the
process. It is true, the Judiciary Act of the 24th of September,
1789, c. 20. s. 9., has declared, that certain causes shall be
causes of admiralty and maritime jurisdiction, but it does not,
therefore, follow, that a forfeiture created by a new statute shall
be enforced by the same process. The arguments urged against it in
the cases subsequent to that of the Vangeance,c have always been
answered by the mere authority of that case. But the decision in
that case ought to be re-examined, because it affects the right of
trial by jury, and because the argument was very imperfect. The
word 'including,' in the judiciary act, ought to be construed
cumulatively. It provides, that the district
a 1 Gallison, 140.
b Ante, p. 9.
c 3 Dall. 297.
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20, 22
courts 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, as well as upon the high seas,' &c. The
presumption arising from the collective use of debt, information,
and indictment, in the Non-Intercourse Act, is, that they relate to
a common law jurisdiction. The word information cannot be
synonymous with libel, because the first is a common law, the
second a civil law proceeding. A common law proceeding may be
applied by statute to admiralty suits. The statute 28th Henry VIII.
c. 15. prescribes a common law process (indictment) for offences
triable in the admiralty.
[STORY, J. That was the high commission court.]
Dexter answered, that he was aware of it; but that a suit may be
a cause of admiralty and maritime jurisdiction, and yet triable by
common law process.d
d Before the statute 28th Henry VIII. c. 15., the admiralty had
a very extensive criminal jurisdiction, which seems to have been
coeval with the very existence of the tribunal, in which it
proceeded according to the civil law, and other its own peculiar
codes; but by the process of indictment found by a grand jury, and
a capias thereupon delivered by the admiral or his lieutenant, to
the marshal of the court, or the sheriff. See Clerk's Praxis,
Roughton's Articles cited therein, 122. note. c. 16, 17. Exton, 32.
Selden de Dominio Maris, 1. 2. c. 24. p. 209. 4 Rob. 73. Note (a)
The Rucker. This criminal jurisdiction, independent of statutes,
still exists; and all offences within it, which are not otherwise
provided for by positive law, are punishable by fine and
imprisonment. See 4 Black. Com. 263. Brown's Civ. & Adm. Law,
Appendix, No. 111. The statute 28th Henry VIII. c. 15., provides,
that all treasons, felonies, &c., on the seas, or where the
admiral hath jurisdiction, &c. shall be tried, &c., in the
realm, as if done on land; and commissions under the great seal
shall be directed to the admiral or his lieutenant, and three or
four others, & c., to hear and determine such offences, after
the course of the laws of this land for like offences done in the
realm. And the jury shall be of the shire within the commission.
Stat. 33d Geo. III. c. 66. Under this provision the sessions at the
Old Bailey are now held, at which the judge of the High Court of
Admiralty presides, and common law judges are included in the
commission. But it is held, that this statute does not alter the
nature of the offence, which shall still be determined by the civil
law, but the manner of trial only. (Hale's P. C. 3 Inst. 112.)
Page 14 U.S.
20, 23
STORY, J., delivered the opinion of the court.
This case depends on a mere question of fact. After a careful
examination of the evidence, the majority of the court are of
opinion, that the decree of the circuit court ought to be affirmed.
It is deemed unnecessary to enter into a formal statement of the
grounds of this opinion, as it is principally founded upon the same
reasoning which was adopted by the circuit court in the decree
which is spread before us in the transcript of the record
Decree affirmed with costs.e
e As the opinion of the court below is referred to for the
grounds upon which its decree was affirmed, it may seem fit here to
insert so much of that opinion as develops the principles and rules
of evidence applied by the court in cases of this nature.
After stating the facts of this case, the learned judge
proceeds; 'Since I have had the honour to sit in this court I have
prescribed to myself certain rules, by the application of which, my
judgment, in cases of this nature, has been
Page 14 U.S.
20, 24
uniformly governed. 1st. Where the claimants assume the onus
probandi (as they do in this case) not to acquit the property,
unless the defence be proved beyond a reasonable doubt. 2d. If the
evidence of the claimants be clear and precisely in point, not to
indulge in vague and indeterminate suspicions, but to pronounce an
acquittal, unless that evidence be clouded with incredibility, or
encountered by strong presumptions of mala fides, from the other
circumstances of the case.' He also alludes to the absence of
documentary evidence to support the defence set up by the claimants
as affording an example of the application of these rules, as well
as of another rule equally important. 'What strikes me as decisive
against the defense is the entire absence of all documents
respecting the cargo. Bills of lading, letters of advice, or
general orders, must have existed. If the cargo had been destined
for Boston only, there would not have been so much difficulty. But
the defence shows its destination ultimately for Liverpool. Where,
then, is the contract of affreightment, the bills of lading, the
letters of advice, and the correspondence of the shippers, or of
Mr. P. Grant? Can it be credible that, without any authority, the
master, or part owner of the ship should, on their own
responsibility, have gone to Liverpool, without orders or
consignment? That from a mere vague knowledge of the wishes of the
shippers, they should place at imminent risk the whole property,
without written authority to colour their proceedings? There must
have been papers. They are not produced. The affidavits of the
shippers, of Mr. Grant, of the consignees in England, are not
produced. What must be the conclusion from this general silence? It
must be, that if produced, they would not support the asserted
defence. At least, such is the judgment that both the common law
and the admiralty law pronounces in cases of suppression of
evidence.'
