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stance we see nothing to justify it. The third plea
is, therefore, for this additional reason, bad in its ão.
very substance, and the state court were right in
Mr. Justice Johnson. As the opinion delivered in this case goes into the consideration of a variety of topics which do not appear to me to be essential to the case, I will present a brief view of all that I consider as now decided. Three pleas are filed to the action. The first is the general issue, under which, according to the practice of the state from which the case comes, notice was given that the forfeiture would be given in evi. dence. The second plea is a justification, on the ground of a seizure under the order of the president, for the forfeiture, incurred under the third section of the act of 1794. The third is a justification under the order of the president, to detain for the purpose of enforcing the prohibitions and penalties incurred under the third section. And this order is supposed to have been issued under authority given in the seventh section. On the first plea issue was taken ; and on the trial the state court refused to admit evidence of the for .
1818. feiture, on the ground that the acquittal in the dis
ovo - - - Gelston trict court was conclusive against the forfeiture. And
w. on this point this court is of opinion that the state ... court decided correctly. This court is also of opithe district, nion, that the state court could not have tried the : “question of forfeiture arising under the laws of the state courts United States. But this point would have been fatal ::::::::::::to the suit, not to the defence, had it been properly
forfeiture. plead ed.
Defect of the To the second and third pleas the defendant demur:: ...red: but as the second plea contained only an argu.."mentative, and, of course, defective averment of the forfeiture, viz. “seized as forfeited,” that is “because forfeited,” that plea did not bring up the question of forfeiture, or any question connected with it. Neither does the third plea bring up the question of sorfeiture : for the justification therein relied on is The seventh wholly independent of the forfeiture, and rests upon *...* the order of the president to detain for trial, in effect.
not authorize And hence the only other point in the case is, whether the presidentto - order private the seventh section of the act empowered the presiroom. dént to issue such an order. And on this point we are
naval force to authorize a seizure, but only to call on the military or
enforce a sei-
2ure. naval forces to enforce a seizure when necessary. The defence set up is not founded upon the exercise of s 2h a power, but upon a supposed order to the defendants, in their private individual character, to take and detain.
The act, therefore, does not sustain the defence.
Mr. D. B. Ogden inquired to which of the state courts the mandate to enforce the judgment was to be transmitted.
Mr. Chief Justice MARshall. We must consider the record as still remaining in the supreme court of New York, and consequently the mar date must be directed to that court.
Mandate to the supreme court of New-York.
Judgment. This cause came on to be heard on the transcript of the record of the supreme court of judicature of the people of the state of New-York, returned with the writ of error issued in this case, and was argued by counsel. On consideration whereof, it is, adjudged and ordered, that this court having the power of revising, by writ of error, the
judgment of the highest court of law in any state,
in the cases specified in the act of congress, in such case provided, at any time within five years from the rendition of the judgment in the said courts, have the power to bring before them the record of any such judgment, as well from the highest court of law in any state, as from any court to which the record of the said judgment may have been remitted, and in which it may be found, when the writ of error from this court is issued. And the court, therefore, in virtue of the writ of error in this cause, do proceed and take cognizance of this cause upon the transcript of the record now remaining in the supreme court of judicature of the people of the state of New-York; and they do hereby adjudge and order, that the judgment of the court for the trial of impeachments and
correction of errors in this case, be, and the same is hereby affirmed, with costs and damages, at the rate of six per centum per annum on the amount of the
Bevans, judgment of the said court, for the trial of impeach
ments and correction of errors of the state of NewYork, to be computed from the time of the rendition of the judgment of the said court for the trial of impeachments and correction of errors of the state of New York.
(Constitution AL LA w.)
The UNITED STATEs v. BEv ANs.
Admitting that the 3d article of the constitution of the United States, which declares that “the judicial power shall extend to all cases of admiralty and maritime jurisdiction,” vests in the United States exclusive jurisdiction of all such cases, and that a murder committed in the waters of a state where the tide ebbs and flows, is a case of admiralty and maritime jurisdiction ; Congress have not, in the 8th section of the act of 1790, ch. 9, “for the punishment of certain offences against the United States,” so exercised this power as to confer on the courts of the United States jurisdiction over such murder.
Quere, whether courts of common law have concurrent jurisdiction with the admiralty over murder committed in bays, &c. which are enclosed parts of the sea 7
Congress having, in the 8th section of the act of 1790, ch. 9, provided
for the punishment of murder, &c. committed “upon the high seas, or in any river, haven, basin, or bay, out of the jurisdiction of any particular state,” it is not the offence committed, but the bay, &c. in which it is committed, that must be out of the jurisdiction of the Goate,
The grant to the United States in the constitution of all cases of admiralty and maritime jurisdiction, does not extend to a cession of the waters in which those cases may arise, or of a general jurisdiction over the same. Congress may pass all laws which are necesssary for giv
ins the most complete effect to the exercise of the admiralty and maritime jurisdiction granted-to the government of the Union. But the £eneral jurisdiction over the place, subject to this grant, adheres to the territory as a portion of territory not yet given away; and the residua. ry powers of legislation still remain in the state.
Congress have power to provo, e for the punishment of offences committed by persons serving on board a ship of war of the United States, wherever that ship may lie. But congress have not exercised that power in the case of a ship, lying in the waters of the United States; the
words “within any sort, arsenal, dock-yard, magazine, or in any other
place or district of country under the sole and exclusive jurisdiction of the United States;” in the third section of the act of 1790, ch. 9. not extending to a ship of war, but only to objects in their nature fixed and territorial.
The defendant, Wil am Bevans, was indicted for
murder in the circuit court for the district of Massa. chusetts. The indictment was founded on the 8th section of the act of congress of the 30th of April, 1790, ch. 9. and was tried upon the plea of not guilty. At the trial, it appeared in evidence that the offence charged in the indictment, was committed by the prisoner on the sixth day of November, 1816, on board the United States ship of war Independence, rated a ship of the line of seventy-four guns, then in commission, and in the actual service of the United States, under the command of Commodore Bainbridge. At the same time, Wilf im Bevans was a marine duly enlisted, and in the service of the United States, and was ac ong as sentry regularly posted on board of said ship, and Peter Leinstrum (the deceased, named in the in
dictment) was at the same time duly enlisted and in Wol. III. 44
1818 zUnit. States