Where muskets were carried by the passengers on beard of a
French armed vessel from New York to a port in the West Indies, and
powder was taken from on board a French frigate in the harbor of
New York and carried by this same vessel to Port de Paix, a
proceeding against the vessel, as forfeited under the Act of
Congress passed 22 May, 1793, prohibiting for one year the
exportation of arms and ammunition, is a cause of admiralty and
maritime jurisdiction. It is a process of the nature of a libel
in rem, and does not in any degree touch the person of the
offender, and no jury was required for the trial of the same.
Where there appeared some ground for the prosecution, costs were
refused.
It appeared on the return of the record that
La
Vengeance, a French privateer, had captured and carried into
New York a Spanish ship, called
La Princessa de Asturias,
and that thereupon Don Diego Pintardo, the owner of the prize,
filed a libel in the district court complaining of the capture,
alleging that
La Vengeance was illegally fitted out within
the United States, and praying restitution and damages; but on a
claim exhibited in behalf of the owners of the privateer, the
district court dismissed the Libel with costs, and upon appeal to
the circuit court that decree was affirmed. The fate of Pintardo's
Libel determined likewise the fate of an information filed
ex
officio by the district attorney claiming the privateer as a
forfeiture upon the same allegation that she had been illegally
armed and equipped in the United States in violation of the act of
Congress, and in both these decisions the parties acquiesced.
But a third proceeding had been instituted against the privateer
in which the district attorney filed
ex officio an
information stating
"that Aquila Giles, marshal of the said district, had seized to
the use of the United States, as forfeited, a certain schooner or
vessel called
La Vengeance, with her tackle, apparel, and
furniture, the property of some person or persons to the said
attorney unknown, for that certain cannons, muskets, and gunpowder,
to-wit, 2 cannon, 20 muskets, and 50 boxes of gunpowder were,
between 22
Page 3 U. S. 298
May, 1794, and 22 May, 1795,
* exported in the said schooner or
vessel from the said United States, to-wit, from Sandy Hook in the
State of New Jersey (that is to say, from the City of New York in
the New York District) to a foreign country, to-wit, to
Port-de-Paix in the Island of St. Domingo in the West Indies,
contrary to the prohibitions of the act in such case made and
provided,"
and praying judgment of forfeiture accordingly. A claim was
filed on behalf of the owners of the privateer denying the
exportation of cannon or muskets and alleging that the gunpowder
constituted part of the equipment of the
Semillante, a
frigate belonging to the Republic of France, and had been taken
from her and put on board the privateer, to be carried to
Port-de-Paix by order of the proper officer of the said Republic.
It was, also, alleged, that the schooner after her arrival at
Port-de-Paix was
bona fide sold to one Jaques Rouge, a
citizen of the French Republic, in whose behalf the claim was
instituted.
After argument, the district judge decreed that the schooner
should be forfeited, but upon appeal to the circuit court the
decree was reversed and Judge Chace certified that the judgment of
reversal was founded on the following facts:
"1st. That from 18 to 20 muskets, were carried in the said
schooner
La Vengeance in the month of March or April,
1795, from the United States of America to a foreign country,
to-wit, to Port-de-Paix, in the West Indies, but that such muskets
were the private property of French passengers on board of the said
schooner, carried out for their own use and not by way of
merchandise."
"2d. That upwards of 40 boxes of gunpowder were carried at the
same time, from the said United States in the said schooner to
Port-de-Paix aforesaid, but that such gunpowder was taken from on
board the
Semilliante frigate, lying in the harbor of New
York, was a part of her equipment, did not appear ever to have been
landed in the said United States, was carried out for the use of
the French Republic, was delivered to the commander in chief at
Port-de-Paix, and was not exported by way of trade or
merchandise."
From this judgment of the circuit court a writ of error was
brought on behalf of the United States, the general errors were
assigned, and the defendant in error pleaded
in nullo est
erratum.
Page 3 U. S. 301
By the Court. We are perfectly satisfied upon the two points
that have been agitated in this cause. In the first place, we think
that it is a cause of admiralty and maritime jurisdiction. The
exportation of arms and ammunition is simply the offense, and
exportation is entirely a water transaction. It appears indeed on
the face of the libel to have commenced at Sandy Hook, which
certainly must have been upon the water. In the next place, we are
unanimously of opinion that it is a civil cause. It is a process of
the nature of a libel
in rem, and does not in any degree
touch the person of the offender.
In this view of the subject, it follows of course that no jury
was necessary, as it was a civil cause, and that the appeal to the
circuit court was regular, as it was a cause of admiralty and
maritime jurisdiction. Therefore let the decree of the circuit
court be
Affirmed with costs.
But on opening the Court the next day, THE CHIEF JUSTICE
directed the words "with costs" to be struck out of the entry, as
there appeared to have been some cause for the prosecution. He
observed, however, that in doing this the Court did not mean to be
understood as at all deciding the question whether in any case it
could award costs against the United States, but left it entirely
open for future discussion.
* The information was founded on the act of Congress, passed 22
May 1794, prohibiting, for one year ensuing, the exportation of
arms and ammunition.