Where, in an admiralty cause, on a seizure, the evidence is so
Contradictory or ambiguous that the Supreme Court finds a decision
difficult, it will order the cause to further proof.
A libel on a seizure in the admiralty in its terms and in its
essence, is an information, and the word "information" is not
exclusively applicable to common law proceedings.
That the deponent is a seaman on board a gunboat in a certain
harbor, and liable to be ordered to some other place and not to be
able to attend the court at the time of its sitting, is not a
sufficient reason for taking his deposition
de bene esse
under the Judiciary Act of 1789, c. 20, s. 30.
In such a case, the proper course is to apply to the court for a
commission.
And even if the deposition might lawfully be taken in such a
case without applying to the court for its aid, still the
deposition is taken
de bene esse, not in chief, and a
deposition so taken can be read only when the witness himself is
unattainable.
If such a deposition be offered before or at the time of trial
and used in the court below without objection, this Court may infer
that the requisites of the law in respect to proof of the absence
of the witness were complied with or waived.
But its being filed after the trial by order of the court below
will not justify such an inference. The party is not necessarily in
court after his cause is decided, and is not bound to know the fact
that a deposition is thus ordered to be filed.
The brig
Samuel sailed from St. Bartholomews, an island
belonging to his Majesty the King of Sweden, in the month of
November, 1811, with a cargo consisting of rum, molasses, and some
other articles, and arrived in Newport, Rhode Island, on the 8th of
the following December, where the vessel and cargo were seized and
libeled in the district court as being forfeited to the United
States under the act of Congress prohibiting the importation
Page 14 U. S. 10
of articles the growth, produce, or manufacture of Great Britain
or France, their colonies or dependencies. The vessel and cargo
were claimed by John Pierce and George Beach, both citizens of the
United States. The district court condemned both vessel and cargo.
The circuit court condemned the vessel and the rum, but restored
the residue of the cargo. From the sentence of the circuit court
both the libellants and the claimants appealed to this Court.
Page 14 U. S. 13
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the
Court.
On the part of the claimants it is contended 1st, that the
proceedings ought to have been at common law, and not in the
admiralty; 2d, that the information, if it be one, is insufficient;
3d, that the testimony is wholly insufficient to warrant a
condemnation.
In arguing the first point, the counsel for the claimants
endeavored to take this case out of the
Page 14 U. S. 14
principle laid down in the
Vengeance and in other cases
resting on the authority of that decision by urging a difference of
phraseology in the acts of Congress. In that part of the act on
which this prosecution is founded which gives the remedy, it is
enacted
"That all penalties and forfeitures arising under or incurred by
virtue of this act may be sued for, prosecuted, and recovered, with
costs of suit, by action of debt in the name of the United States
of America or by indictment or information in any court having
competent jurisdiction to try the same."
Debt, indictment, and information are said to be technical terms
designating common law remedies, and consequently marking out the
courts of common law as the tribunals in which alone prosecutions
under this act can be sustained. There would be much force in this
argument if the term "information" were exclusively applicable to a
proceeding at common law. But the Court is of opinion that it has
no such exclusive application. A libel on a seizure, in its terms
and in its essence, is an information. Consequently, where the
cause is of admiralty jurisdiction and the proceeding is by
information, the suit is not withdrawn by the nature of the remedy
from the jurisdiction to which it otherwise belongs.
2d. The second objection made by the claimants to these
proceedings is that though the words of the act may be satisfied by
a libel in the nature of an information, yet the same strictness
which is required in an information at common law will be necessary
to sustain a libel in the nature of an information in the court of
admiralty, and that, testing the libel by this rule, it is totally
insufficient. The Court
Page 14 U. S. 15
is not of opinion that all those technical niceties which the
astuteness of ancient judges and lawyers has introduced into
criminal proceedings at common law, and which time and long usage
have sanctioned, are to be engrafted into proceedings in the courts
of admiralty. These niceties are not already established, and the
principles of justice do not require their establishment. It is
deemed sufficient that the offense be described in the words of the
law and be so described that if the allegation be true, the case
must be within the statute. This libel does so describe the
offense, and is therefore deemed sufficient.
3d. The third and material inquiry respects the evidence. Is
this cargo of British origin?
In the examination of this question, the first point to be
decided is the admissibility of the deposition of Thomas Oldham.
That deposition is found in the record of the circuit court, with a
certificate annexed to it, in these words: "N.B. The deposition of
Thomas Oldham was filed after the trial of the case by order of the
court." Some of the judges are of opinion that this certificate of
the clerk is to be disregarded, and that the deposition, being
inserted in the record, must be considered as a part of it and must
be supposed to have formed a part of the evidence when the decree
was made; but the majority of the Court is of a different opinion.
The certificate of the clerk to the deposition is thought of equal
validity as if forming a part of his general certificate. It shows
that this deposition formed no part of the cause in the circuit
court, and is therefore liable to
Page 14 U. S. 16
every exception which could be made to it, if it was not found
in the record and was now offered for the first time to this Court.
On inspection, it appears to be a deposition taken before a single
magistrate, not on order of court on a commission, with notice to
the attorney of the claimant, who did not attend. It must be
sustained by the act of Congress or it is inadmissible. The reason
assigned for taking it is
"that the deponent is a seaman on board a gunboat of the United
States, in the harbor of Newport, and liable to be ordered to some
other place, and not to be able to attend the court at the time of
its sitting."
The 30th section of the Judiciary Act directs that "the mode of
proof by oral testimony, and the examination of witnesses in open
court, shall be the same in all the courts of the United States."
The act then proceeds to enumerate cases in which depositions may
be taken
de bene esse. The liability of the witness to be
ordered out of the reach of the court is not one of the causes
deemed sufficient by the law for taking a deposition
de bene
esse. In such case, there would seem to be a propriety in
applying to the court for its aid. But supposing this objection not
to be so fatal as some of the judges think it, still the deposition
is taken
de bene esse, not in chief, and a deposition so
taken can be read only when the witness himself is unattainable. It
does not appear in this case that the witness was not within the
reach of the court, and might not have given his testimony in open
court, as is required by law. Had this deposition been offered in
court before or at the time of the trial and used without
objection, the inference
Page 14 U. S. 17
that the requisites of the law were complied with or waived
might have been justifiably drawn. But the party is not necessarily
in court after his cause is decided, and is not bound to know the
fact that this deposition was ordered to be filed. For these
reasons it is the opinion of a majority of the Court that the
deposition of Thomas Oldham ought not to be considered as forming
any part of the testimony in this cause.
The deposition of Oldham being excluded, the prosecution rests
chiefly on the depositions of Benjamin Fry and William S. Allen.
These witnesses are both experienced dealers in rum, have both
tasted and examined the rum of this cargo, and are both of the
opinion that it is of British origin. In the pinion of all the
judges, this testimony is entitled to great respect. The witnesses
say that there is a clear difference between the flavor of rum of
the British and the Spanish islands, though they do not attempt to
describe that difference, and that their opinion is positive that
this is British rum.
To weaken the force of this testimony, the claimants have
produced the depositions of several witnesses, also dealers in rum,
who declare, that the difference in the flavor of the best Spanish
rum and that of the British islands is inconsiderable, and that
they cannot distinguish the one from the other; that they believe
the best judges find great difficulty in making the discrimination.
This testimony would perhaps have been entitled to more influence
had the persons giving it tasted the rum imported in the
Samuel and declared themselves incapable of deciding
Page 14 U. S. 18
on its origin, for although in some cases the difference may be
nearly imperceptible, in others it may be considerable. The
testimony, however, on which the claimants most rely is found in
the deposition of Samuel Marshall and of Andrew Furntrad. Samuel
Marshall, the brother of John and Joseph Marshall, merchants of St.
Bartholomews, from whom the rum in question was purchased, deposes
that he has lived with them for two years and had, at the time of
giving his deposition, they being absent from the island, the care
of their business. That the rum and molasses constituting the cargo
of the
Samuel were imported into St. Bartholomews from La
Guira in vessels which he names, and are of the growth and produce
of that place. Andrew Furntrad is the collector of the port of
Gustavia in St. Bartholomews, and deposes that the quantity of rum
and molasses which were laden on board the
Samuel, and
which cleared out regularly for New London, were regularly imported
from La Guira in two vessels, which he names, whose masters he also
names. They are the same that are mentioned by Samuel Marshall.
On this conflicting testimony much contrariety of opinion has
taken place. The omission of the claimants to furnish other
testimony supposed to have been within their reach, and of which
the necessity would seem to have been suggested by the nature of
the prosecution, impairs, in the opinion of several of the judges,
the weight to which their positive testimony might otherwise be
entitled. The Court finds it very difficult to form an opinion
satisfactory to itself.
Page 14 U. S. 19
So situated, and under the peculiar circumstances attending
Oldham's deposition, the majority of the Court is of opinion that
the cause be continued to the next term for further proof, which
each party is at liberty to produce.
Farther proof ordered.