-

31st of December, 1792, (Oswald's edition of the Acts of Congress, vol. 2, p. 134, 144, 8. 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 [*450 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.

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 vice-admiralty 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 (col. 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, So in the act suspending intercourse with as far as they effect the present question, are, France, vol. 1, p. 245, offending vessels are "and shall also have exclusive original cogni- made liable to be seized, and may be prosezance of all civil causes of admiralty and mari-cuted and condemned in any circuit or district time jurisdiction, including all seizures under court of the United States, which shall be holdlaws of impost, navigation, or trade, of theen within or for the district where the seizure United States, where the seizures are made on shall be made." 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 cognizance 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 449*] fact in the district courts, in all causes, except civil causes of admiralty and maritime jurisdiction, shall be by jury."

66

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

But by the judiciary act no circuit court could take original cognizance 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.

any person, in every such case, the onus probandi shall be upon such claimant." These expressions all indicate proceedings at common law only.

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 purThe district court shall have exclusive orig-suant to this act, if the property be claimed by inal cognizance of all civil causes of admiralty and maritime jurisdiction, including, within its exclusive original cognizance, 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 suit ors, 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

The 89th sect. in p. 427, speaking of the recovery of penalties, clearly refers to suits at common law; and when speaking of forfeitures. it says, "and all ships, goods, &c., which shall become forfeited in virtue of this act, shall be seized, libelled and prosecuted as aforesaid;" referring to the mode of prosecution pointed out for the recovery of penalties. Here, if the word "libelled ” had not been used, there could be no doubt. But the expression "libeled " relates as well to seizures on land as [*451 to seizures on water; but seizures on land must be tried by jury according to the course of the common law. The word libel, therefore, does not refer exclusively to admiralty proceedings.

The Excise Law, col. 1, p. 313, makes no distinction between seizures made on land, and those made on water.

By the 5th amendment to the constitution, no person shall be deprived of property without due process of law; which means by due process of the common law.

By the 7th amendment, in suits at common law the right of trial by jury shall be preserved,

i. e., continued as it then was. At that time | fact should be decided by the judge, and in the all municipal seizures were triable at common other by a jury. law.

The act prohibiting the intercourse with St. Domingo differs from that under which the Vengeance was prosecuted.

There the mode of prosecution was declared to be the same as for penalties and forfeitures under the act for collecting duties; but here no mode of prosecution is prescribed.

The act creates two offenses.

1. Sailing to St. Domingo without being destined for that island.

2. Being destined and sailing for a prohibited port without arriving there. The offense of destination is an offense on land, and to be tried by the course of the common law. Hence also it may be inferred that the other offense is to be tried in the same manner. No difference is made by the statute.

The case of The Sally was decided upon the authority of that of the Vengeance, without argument; and is, therefore, of no authority. Rodney, attorney general, in reply, was stopped by the court as to the law of the case.

MARSHALL, Ch. J. The court considers the law as completely settled by the case of The Vengeance. A distinction has been attempted to be drawn between this case and that, but the court can see no difference. It is the place of seizure, and not the place of committing the offense, which decides the jurisdiction.

It has been said the word "including" means moreover, or, as well as; but if this was the meaning of the legislature it was a very embarrassing mode of expressing the idea. It is clear that Congress meant to discriminate between seizures on waters navigable from the sea, and seizures upon land or upon waters not navigable; and to class the former among the civil causes of admiralty and maritime jurisdiction.

The act requires bonds to be given, which are forfeited if the offense has been committed. Suits at common law upon these bonds are now pending. If these had been tried first, the facts The only doubt which could arise would be 452*] must have been decided by a *jury, and upon the clause of the constitution respecting by the 7th amendment of the constitution, no the trial by jury. But the case of the Venfact tried by a jury shall be otherwise re-ex- geance settles that point. amined in any court of the United States than according to the rules of the common law." The consequence would have been that this case, involving the same fact, between the same parties, could not have been otherwise tried than by a jury. It could not have been the intention of Congress that in one case the same 676

The sentence of the circuit court was reversed, and that of the district court affirmed.

Cited 7 Cranch 112; 1 Wheat. 9; 5 Id. 115 (n); 8 Id. 394; 5 How. 485, 486; 6 Id. 388; 6 Wall. 766; 8 Id. 26; 7 Abb. U. S. 138; 4 Biss. 160; 2 Cliff. 69; Blatchf. & H. Id. 638; 9 Otto 314; 1 Gall. 24; Id. 25; 2 Gall. 474; 2 240; 2 Ware (Dav.) 99; 3 Ware 187.

Cranch 4.

APPENDIX.

NOTE (A.)

455*] *Documents accompanying the President's Message of January 22, 1807.

I.

WILKINSON'S FIRST AFFIDAVIT.

UNITED STATES

2.

BOLLMAN AND SWARTWOUT,

JAMES WILKINSON, Brigadier-General and Commander in Chief of the army of the United States, to warrant the arrest of Doctor Erick Bollman, on a charge of treason, misprision of treason, or such other offense against the government and laws of the United States as the following facts may legally charge him with, on my honor as a soldier; and on the Holy Evangelists of Almighty God, do declare and swear, that on the sixth day of November last, when in command at Natchitoches, I received by the hands of a Frenchman, a stranger to me, a letter from Doctor Erick Bollman, of which the following is a correct copy:

host of choice spirits. Wilkinson shall be second to Burr only; Wilkinson shall dictate the rank and promotion of his officers. Burr will proceed westward 1st August, never to return: with him go his daughter; the husband will follow in October with a corps of worthies; send forthwith an intelligent and confidential friend, with whom Burr may confer; he shall return immediately with further interesting details: this is essential to concert and harmony of movement; send a list of all persons known to Wilkinson west of the mountains, who could be useful, with a note delineating their characters.

"By your messenger send me four or five of the commissions of your officers, which you can borrow under any pretence you please; they shall be returned faithfully; already are orders to the contractor given to forward six months' provisions to points Wilkinson may name; this shall not be used until the last moment, and then under proper injunctions; the project is brought to the point so long desired; Burr guarantees the result with his life and honor, the lives, the honor and fortunes of "SIR: I have the honor to forward to your ex-hundreds, the best blood of our country; Burr's cellency the enclosed letters, which I was charged to deliver to you by our mutual friend: I shall remain for some time at this place, and should be glad to learn where and when I may have the pleasure of an interview with you. Have the goodness to inform me of it, and please to direct your letter to me, care of or enclose it under cover to them.

New Orleans, September 27, 1806.

"I have the honor to be,

'With great respect, Sir, "Your excellency's most obedient servant, (Signed) "ERICK BOLLMAN.

plan of operations is to move down rapidly from the falls on the fifteenth of November, with the first five hundred or one thousand men, in light boats, now constructing for that purpose; to be at Natchez between the fifth and fifteenth of December, then to meet Wilkinson; then to determine whether it will be expedient, in the first instance, to seize on, or pass by, Baton Rouge; on receipt of this send Burr an answer; draw on Burr for all expenses, &c. The people of the country to which we are going are prepared to receive us; their agents now "Gen. Wilkinson." with Burr say that if we will protect their re456*] *Covering a communication in cipher ligion, and will not subject them to a foreign from Colonel Aaron Burr, of which the follow-power, that in three weeks all will be settled. ing is substantially as fair an interpretation as I have heretofore been able to make, the original of which I hold in my possession: "I (Aaron Burr) have obtained funds, and have actually commenced the enterprise. Detachments from different points, and under different pretences, will rendezvous on the Ohio, 1st November, Everything internal and external favors views; protection of England is secured.

T. is gone to Jamaica to arrange with the admiral of that station, and will meet at the Mississippi-England-navy of the United States are ready to join, and final orders are given to my friends and followers; it will be a

1.-Truxton.

The Gods invite to glory and fortune; it remains to be seen whether we deserve the boon; the bearer of this goes express to you; he will hand a formal letter of introduction to you from Burr, a copy of which is hereunto subjoined; he is a man of inviolable honor and perfect discretion; formed to execute rather than to project; capable of relating facts with fidelity, and incapable of relating them otherwise; he is thoroughly informed of the plans and intentions of and will disclose to you as far as you inquire, and no further; he has imbibed a reverence for your character,[*457 and may be embarrassed in your presence; put him at ease and he will satisfy you; Doctor Bollman, equally confidential, better informed

"Your friend and obedient servant, (Signed) "A. BURR. His Excellency General Wilkinson." Together with a packet, which, he informed me, he was charged by the same person to deliver me in private; this packet contained a letter! in cipher from Colonel Burr, of which the following is substantially as fair an interpretation

as I have heretofore been able to make, the original of which I hold in my possession:

I instantly resolved to avail myself of the reference made to the bearer, and in the course of the following disclosure: "That he had been some days drew from him (the said Swartwout) dispatched by Colonel Burr from Philadelphia, had passed through the states of Ohio and Ken"I, Aaron Burr, have obtained funds and tucky, and proceeded from Louisville for St. have actually commenced the enterprise. De- Louis, where he expected to find me, but distachments from different points and under dif- covering at Kaskaskias that I had descended the ferent pretences, will rendezvous on the Ohio, river, he procured a skiff, hired hands, and fol1st November. Everything internal and exter-lowed me down the Mississippi to Fort Adams, nal favors views; protection of England is and from thence set out for Natchitoches, in secured; T- is going to Jamaica, to ar- company with Captains Sparks and Hooke, unrange with the admiral on that station; it will der the pretense of a disposition to take part in meet on the Mississippi-England- -Navy the campaign against the Spaniards, then deof the United States are ready to join, and final pending. That Colonel Burr with the support orders are given to my friends and followers; it of a powerful association, extending from New will be a host of choice spirits. Wilkinson shall York to New Orleans, was levying an armed he second to Burr only; Wilkinson shall die- body of 7,000 men from the state of New York tate the rank and promotion of his officers. and the western states and territories, with a Burr will proceed westward 1st August, never view to carry an expedition against the Mexican to return; with him go his daughter; the hus- provinces, and that 500 men under Colonel band will follow in October, with a corps of Swartwout and a Colonel or *Major Ty- [*461 worthies. ler, were to descend the Alleghany, for whose 460*] *Send forwith an intelligent and con- | accommodation light boats had been built, and fidential friend with whom Burr may confer; he were ready." I inquired what would be their shall return immediately with further interest-course; he said, "This territory would be revoluing details; this is essential to concert and harmony of movement; send a list of all persons known to Wilkinson, west of the mountains, who may be useful, with a note delineating their characters. By your messenger send me four or five of the commissions of your officers, which you can borrow under any pretence you please; they shall be returned faithfully. Already are orders to the contractor given to forward six months' provisions to points Wilkinson may name; this shall not be used until the last moment, and then under proper injunctions; the project is brought to the point so long desired; Burr guarantees the result with his life and honor; with the lives, the honor and fortunes of hundreds, the best blood of our country. Burr's plan of operations is to move down rapidly from the falls on the 15th November, with the first 500 or 1,000 men, in light boats now constructing for that purpose, to be at Natchez between the 5th and 15th of Decemher; there to meet Wilkinson; there to determine whether it will be expedient, in the first instance, to seize on, or pass by, Baton Rouge; on receipt of this, send an answer; draw on Burr for all expenses, &c. The people of the country to which we are going are prepared to receive us; their agents now with Burr say, that if we will protect their religion, and will not subject them to a foreign power, that in three weeks all will be settled. The Gods invite to glory and fortune; it remains to be seen whether we deserve the boon; the bearer of this goes express to you; he will hand a formal letier of introduction to you from Burr; he is a

tionized, where the people were ready to join
them, and that there would be some seizing, he
supposed, at New Orleans; that they expected to
be ready to embark about the first of February,
and intended to land at Vera Cruz, and to march
from thence to Mexico." I observed that there
were several millions of dollars in the bank of
this place; to which he replied, "We know it
full well;" and on remarking that they certainly
did not mean to violate private property, he said
they "merely meant to borrow, and would re-
turn it; that they must equip themselves in New
Orleans; that they expected naval protection
from Great Britain; that the Capt.
—, and
the officers of our navy, were so disgusted with
the government that they were ready to join;
that similar disgusts prevailed throughout the
western country, where the people were zealous
in favor of the enterprise, and that pilot boat
built schooners were contracted for along our
southern coast for their service; that he had
been accompanied from the falls of Ohio to Kas-
kaskias, and from thence to Fort Adams, by a
Mr. Ogden, who had proceeded on to New Or-
leans with letters from Colonel Burr to his
friends there." Swartwout asked me whether
I had heard from Doctor Bollman; and on my
answering in the negative, he expressed great
surprise, and observed, "That the doctor and a
Mr. Alexander had left Philadelphia before him,
with despatches for me, and that they were to
proceed by sea to New Orleans, where he said
they must have arrived."

Though determined to deceive him if possible,
I could not refrain telling Mr. Swartwout it was