Marshall, Ch. j.,
delivered the opinion of the court-
On the-part of the claimants it is contended, 1st. That the proceedings ought to have been at commón law, and not in the admiralty. 2d. That the’ inforrhation, 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 endeavoured to take this case out of the
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^1 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 tobe technical, terms designating common law remedies, and, consequently, marking, out thh 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 iri 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 Consequently, where the cause is ‘of admiralty jurisdiction, and the proceeding is - by information, the suit is not withdrawn, by the nature of the remedy, from thfe jurisdiction to which it otherwise belongs.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 inbhe nature of an information, yet the same strictness which is requir-r ed im an information at common law will be necessary to sustain a libel , in the nature of an infprmation in the
t
court of admiralty; and that, testing the libel by this rule, it is totally insufficient. The court
is not of opinion that all those technical'"niceties Which the astutenes's of ancient'judges and lawyers has introduced into criminal proceedings at common law, and which- time arid. 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 offence 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 offence,- and is, therefore, deemed sufficient.'
3d. The third and -material inquiry respects the evidence. Is. this cargo of British origin ?.
. In thé examinátipn of this question, the first point to be decided is the admissibility of the deposition of Thomas Oidham.. 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 pa,rt of his general certificate. It shows that this deposition formed.no part of the-cause in. the circuit court, and is, therefore, liable to
every exception, which could be made to it, if it was hot found in the record, and was now offered for the first time to/this court. On inspection, it appear# 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 gun-boat of the United States, in the harbour'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.’5 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 whioh 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 fatál as some of the judges think it, still the deposition is taken
de bene ,es$'e,
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 in
xeretice 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 tasl d and examined . the rum of this cargo, and are bot .of the opinion that it is of- British origin. In. the pinion of all the judges, this testimony is entitled to g. eat respect. The witnesses say that there is a clear difference between the flavour 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 dif-. ference in the flavour 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 decid
ing on its origin: for, although in.some cases thii difference may be nearly imperceptible, in others it may be considerable.
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Marshall, Ch. j.,
delivered the opinion of the court-
On the-part of the claimants it is contended, 1st. That the proceedings ought to have been at commón law, and not in the admiralty. 2d. That the’ inforrhation, 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 endeavoured to take this case out of the
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^1 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 tobe technical, terms designating common law remedies, and, consequently, marking, out thh 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 iri 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 thfe 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 inbhe nature of an information, yet the same strictness which is requir-r ed im an information at common law will be necessary to sustain a libel , in the nature of an infprmation in the
t
court of admiralty; and that, testing the libel by this rule, it is totally insufficient. The court
is not of opinion that all those technical'"niceties Which the astutenes's of ancient'judges and lawyers has introduced into criminal proceedings at common law, and which- time arid. 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 offence 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 offence,- and is, therefore, deemed sufficient.'
3d. The third and -material inquiry respects the evidence. Is. this cargo of British origin ?.
. In thé examinátipn of this question, the first point to be decided is the admissibility of the deposition of Thomas Oidham.. 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 pa,rt of his general certificate. It shows that this deposition formed.no part of the-cause in. the circuit court, and is, therefore, liable to
every exception, which could be made to it, if it was hot found in the record, and was now offered for the first time to/this court. On inspection, it appear# 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 gun-boat of the United States, in the harbour'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.’5 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 whioh 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 fatál as some of the judges think it, still the deposition is taken
de bene ,es$'e,
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 in
xeretice 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 tasl d and examined . the rum of this cargo, and are bot .of the opinion that it is of- British origin. In. the pinion of all the judges, this testimony is entitled to g. eat respect. The witnesses say that there is a clear difference between the flavour 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 dif-. ference in the flavour 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 decid
ing on its origin: for, although in.some cases thii 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 df 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 Güira, in vessels which: hé 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' Güira 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 pjosecution, 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 it-.
self. So situated, and under the peculiar circumstances attending Oldham’s deposition, the majority of the court is of opinion, that the cause he continued to the next terra for farther proof, which each party is at liberty to produce.
Farther proof ordered,