1817. Slocum V. are admitted. Both must be detained, where they are seized cotemporaneously; and, to permit a subsequent transhipment of the cargo from the vessel Mayberry where it was found in delicto, to another, would be to defeat the policy of the law. In the case of Otis v. Watkins, both vessel and cargo were removed from Provincetown to Barnstable, yet the conduct of the collector was held justified. 2. The rule, that he who pleads to the jurisdiction ought to give it to some other court, must be taken with the proper qualifications. Another jurisdiction must be shown, where it exists, or is intended to be claimed over the subject matter of the suit. But here it was intended only to except to the officious, unlawful jurisdiction of that court where the officer was impleaded. 3. The plea of the defendant in the court below is not an avowry, which goes for a restitution of the thing in controversy; he merely makes cognizance, acknowledges the taking, but justifies under the law, and the orders of the collector. Hence the argument, that a reversal of the judgment below would imply a restitution of the cargo to the seizing officer as his property, is inapplicable. Where, from the circumstances of the case it was lawful to take, and yet, from intervening events, unlawful to detain, the defendant cannot be entitled to a return.* The seizure, in this case, though it looked to no direct forfeiture or even to a trial, yet, being a necessary incident to a seizure, having in view a forfeiture, i 9 Cranch, 339. k Roll. Abr. 319. Bull. N. P. 55. 1817. Slocum it falls within the scope of the 9th section of the judiciary act, as fairly as the cases positively enumerated; and a contrary determination would efface from the statute book those preventive means by Mayberry. which a complexity of litigation is avoided. V. Mr. Ch. J. MARSHALL delivered the opinion of the Feb. 12th. court, and after stating the facts, proceeded as follows: In considering this case, the first question which presents itself is this: Has the constitution, or any law of the United States, been violated or misconstrued by the court of Rhode-Island in exercising its jurisdiction in this cause? The judiciary act gives to the federal courts exclusive cognizance of all scizures made on land or water. Any intervention of a state authority which, by taking the thing seized out of the possession of the officer of the United States, might obstruct the exercise of this jurisdiction, would unquestionably be a violation of the act; and the federal court having cognizance of the seizure, might enforce a re-delivery of the thing by attachment or other summary process against the parties who should devest such a possession. The party supposing himself aggrieved by a seizure cannot, because he considers it tortious, replevy the property out of the custody of the seizing officer, or of the court having cognizance of the cause. If the officer has a right, under the laws of the United States, to seize for a supposed forfeiture, the question, whether that forfeiture has been actually incurred, belongs exclusively to the 1817. Slocum V. Mayberry. federal courts, and cannot be drawn to another forum; and it depends upon the final decree of such courts whether such seizure is to be deemed rightful or tortious. If the seizing officer should refuse to institute proceedings to ascertain the forfeiture, the district court may, upon the application of the aggrieved party, compel the officer to proceed to adjudication, or to abandon the seizure. And if the seizure be finally adjudged wrongful, and without reasonable cause, he may proceed, at his election, by a suit at common law, or in the admiralty for damages for the illegal act. Yet, even in that case, any remedy which the law may afford to the party supposing himself to be aggrieved, other than such as might be obtained in a court of admiralty, could be prosecuted only in the state court, The common law tribunals of the United States are closed against such applications, were the party disposed to make them. Congress has refused to the courts of the union the power of deciding on the conduct of their officers in the execution of their laws, in suits at common law, until the case shall have passed through the state courts, and have received the form which may there be given it. This, however, being an action which takes the thing itself out of the possession of the officer, could certainly not be maintained in a state court, if, by the act of congress, it was seized for the purpose of being proceeded against in the federal court. A brief examination of the act of congress very will be sufficient for the inquiry, whether this cargo was so seized. The second section of the act, This Slocum V. Mayberry. pleaded by the defendant in the original action, only 1817. withholds a clearance from a vessel which has committed the offence described in that section. seizure was made under the 11th section, which enacts, "that the collectors of the customs be, and they are hereby respectively authorized to detain any vessel ostensibly bound with a cargo to some other port of the United States, whenever, in their opinion, the intention is to violate or evade any of the provisions of the acts laying an embargo, until the decision of the president of the United States be had thereupon." The authority given respects the vessel only. The cargo is in no manner the object of the act. It is arrested in its course to any other port, by the detention of the vehicle in which it was to be carried; but no right is given to seize it specifically, or to detain it if separated from that vehicle. It remains in custody of the officer, simply because it is placed in a vessel which is in his custody; but no law forbids it to be taken out of that vessel, if such be the will of the owner. The cargoes thus arrested and detained were generally of a perishable nature, and it would have been wanton oppression to expose them to loss by unlimited detention, in a case where the owner was willing to remove all danger of exportation. This being the true construction of the act of congress, the owner has the same right to his cargo that he has to any other property, and may exercise over it every act of ownership not prohibited by law. He may, consequently, demand it from the officer 1817. Slocum V. Mayberry. in whose possession it is, that officer having no legal right to withhold it from him; and if it be withheld, he has a consequent right to appeal to the laws of his country for relief. To what court can this appeal be made? The common law courts of the United States have no jurisdiction in the case. They can afford him no relief. The party might, indeed, institute a suit for redress in the district court acting as an admiralty and revenue court; and such court might award restitution of the property unlawfully detained. But the act of congress neither expressly, nor by implication, forbids the state courts to take cognizance of suits instituted for property in possession of an officer of the United States not detained under some law of the United States; consequently, their jurisdiction remains. Had this action been brought for the vessel instead of the cargo, the case would have been essentially different. The detention would have been by virtue of an act of congress, and the jurisdiction of a state court could not have been sustained. But the action having been brought for the cargo, to detain which the law gave no authority, it was triable in the state court. The same course of reasoning which sustains the jurisdiction of the court of Rhode-Island sustains also its judgment on the plea in bar. The two pleas contain the same matter; the one concluding to the jurisdiction of the court, and the other in bar of the action. In examining the plea to the jurisdiction, it has been shown that the officer had no legal right to detain the property; consequently, his plea was |