The ture. 1824. proviso are, " Provided, that if such ship or vessel shall be owned in part only, and it shall apMargaret. pear to the jury, before whom the trial for such forfeiture shall be had, that any other owner of such ship or vessel, being a citizen of the United States, was wholly ignorant of the sale or transfer to, or ownership of, such foreign subject or citizen, the share or interest of such citizen of the United States shall not be subject to forfeiture; and the residue only shall be forfeited." Now, in the first place, this being a mere proviso, by way of exception from the enacting clause, it constitutes properly matter of defence, and need not be taken notice of in a libel, brought to enforce the forfeiThe party who seeks the benefit of it, must, in his claim, insist upon it, so as to bring it as matter cognizable in the issue to the jury. In the next place, the very terms of the proviso apply only to the case of a part owner, and not to a sole owner, of the ship. The case put is, where the ship "shall be owned, in part only," by a person ignorant of the transfer, such part shall not be subject to forfeiture. In the case before the Court, the claim is by Haley, as sole owner of the schooner, and all her American documents establish him as sole owner. He does not assert an ignorance of the transfer, nor claim in any way the benefit of the proviso. So that, whatever may be the true construction of the proviso, in other respects, it is plain, that it is inapplicable to his predicament, and might, on this account, be dismissed from the consideration of the Court. But the other suggestion, in respect to jurisdic The tion, is entitled to scrupulous attention. The 29th 1824. section of this act declares, that all penalties and forfeiture incurred for offences against it, "shall Margare". and may be sued for, prosecuted, and recovered, in such Courts, and be disposed of in such manner, as any penalties and forfeitures, which may be incurred for offences against an act entitled, ‘an act to provide more effectually for the collection of the duties imposed by law on goods, wares and merchandise imported into the United States, and on the tonnage of vessels,' may be legally sued for, prosecuted, recovered and disposed of." The act here referred to, is the revenue act of the 4th of August, 1790, ch. 35. which, in the 67th section, provides for the prosecution for penalties, and libelling for forfeitures, in the same general terms, which are employed in the revenue act of the 2d of March, 1799, ch. 128. on the same subject. Now, the judiciary act of 1789, ch. 20. in express terms, and as has been repeatedly adjudged, upon the most solemn consideration, by this Court, rightfully includes all seizures for forfeitures made under laws of impost, navigation, and trade, on waters navigable from the sea, by vessels of ten tons burthen and upwards, as causes of admiralty and maritime jurisdiction, which are to be tried by the Court, and not by a jury. And seizures made under the revenue act of the 4th of August, 1790, ch. 35. as well as under that of 1799, ch. 128. have been uniformly tried in this manner. Where the seizures have been made on land, or on waters not so navigable, the trial has been by jury. It is true, that the first case in which the question as to The 1824. the admiralty jurisdiction under the judiciary act of 1789 came under consideration, did not arise Margaret. until after the enactment of the ship registry act, and, therefore, it may have escaped the attention of Congress, that such was the legal construction. But such a supposition is not lightly to be indulged, not only from the direct and unequivocal language of the judiciary act of 1789, but also from the reference in the registry act to the revenue act of 1790, for the mode of suing for penalties and forfeitures. The latter act (s. 67.) takes an express distinction between penalties and forfeitures, confining the trial. of any fact put in issue in suits for penalties, to the judicial district in which such penalties shall accruc, and then providing, in general terms, for libels, to enforce forfeitures, to be brought "in the proper Court having cognizance thereof;" thus pointing to the judiciary act, for the tribunal which is to exercise jurisdiction, and for the mode in which it is to be exercised. It certainly cannot be admitted, that the obscurity of a proviso like the present ought to repeal, by implication, the deliberate act of the Legislature, in settling the general jurisdiction of its Courts, and placing, with so much solicitude, causes of this .nature on the admiralty side of the Courts. The proviso is still applicable, in its terms, to all cases of seizures, on land and on waters, where the trial is to be by a jury; and, perhaps, taking the whole language, it ought to be construed to include within its equity, cases, where the trial is by the Court, a La Vengeance, 3 Dall. 297. The and the forfeiture is not intended to be inflicted by 1824. the act. The probability is, that the words "court or," were omitted before the word "jury," by mis- Margaret. take, in the draft of the act. But this omission, if it is to have any effect, is not to oust the jurisdiction of the Court, but to take from the party a benefit, which is not within the words of the proviso. It is the opinion of the Court, that the present seizure, which is averred in the libel to have been made upon waters navigable from the sea by vessels of ten tons burthen and upwards, is a cause of admiralty and maritime jurisdiction, and was rightfully tried by the District Court, without the intervention of a jury." This objection cannot, therefore, avail the claimant. The view that has already been taken of the cause upon the merits, as applicable to the four first counts in the libel, render it unnecessary to go into a particular examination of the fifth count. That count is founded, as has been already stated, upon the 27th section of the act, which declares, "that if any certificate of registry, or record, shall be fraudulently or knowingly used for any ship or vessel, not then actually entitled to the benefit thereof, according to the true intent of this act, such ship or vessel shall be forfeited to the United States, with her tackle, apparel and furniture." We think, that there are facts enough in the proofs before us, to establish the forfeiture also under this clause. By the transfer at Havana, the schooner lost her American character, and the title to a Vide ante, vol. 8. p. 391. The Sarah, and Note a. p. 396. 1824. use her certificate of registry for the return voy200 Chests of age. She, however, did use it, and sailed under its avowed protection, "not being entitled to the benefit ther of, according to the intent of the act." Tea. The judgment of the District Court is reversed, and a decree of condemnation awarded against the schooner and her appurtenances. [INSTANCE Court.] TWO HUNDRED CHESTS OF TEA, SMITH. Claimant. In a libel of information, under the 67th section of the collection act A question of fact, as to the rate of duties payable upon certain teas, APPEAL from the Circuit Court of Massachu setts. This was a libel of information, filed in the District Court of Massachusetts, against two hundred chests of tea, alleging that, on the 8th of September, 1819, the collector of the customs for the port of Boston seized at that port the said chests of |