should be known on the case; and concluded to the jurisdiction of the court. The same matter was ́also pleaded in bar. To both these pleas the plaintiff in the state court demurred, and the defendants joined in demurrer. Judgment having been rendered in favour of the plaintiff in the state court, the cause was removed into this court by writ of error. The Attorney-General for the plaintiff in error. 1. The seizure was well made under the 11th section of the embargo act of the 25th of April, 1808. The nature and extent of the power vested in the revenue officers was settled in the case of Crowell v. M.Fadon. Even admitting that, according to the doctrine held in the case of the Paulina," the landing without a permit, contrary to the second section, does not work a forfeiture, (the denial of a clearance being the only penalty,) still the efficacy of the eleventh section justifies and protects the officer. 2. The case being brought under the cognizance of the United States, and within the jurisdiction of their courts, by the just exercise of an authority by one of their officers, the state court had no right to interfere, and arrest the seizure by its process. the case of the Favourite, three of the judges held, that "the conduct of the salvors in taking the goods out of the possession of the revenue officers, though by legal process, was improper." This intimation In c 4 Cranch, 347. See also 1 Binney, 138. Soderstrom's case. 2 Hall's Law Journal, 195. 1817. Slocum V. Mayberry. 1817. Slocum V. is the stronger, as the wrecked goods were adjudged not liable to duties; and it is fortified by the opinion of a learned judge in the supreme court of Mayberry. New-York, upon an analogous question.* d 9 Johns. R. 239. Per KENT, Ch. J. This was an application to the supreme court of the state of New-York, at August term, 1812, for the allowance of a writ of habeas corpus, directed to John Christie, a lieutenantcolonel in the army of the United States, to bring up the body of Jeremiah Ferguson, founded upon an affidavit of his father, stating that he was an enlisted soldier in the 13th regiment of infantry in the army of the United States, then under the command of Christie, and that the said Jeremiah Ferguson was an infant under the age of 21 years, &c., and that he enlisted without his father's consent, and was desirous of being released and discharged. The chief justice, in delivering his opinion, stated, "that the present case being one of an enlistment under colour of the authority of the United States, and by an officer of that government, the federal courts have complete and perfect jurisdiction in the case; and there is no need of the jurisdiction or interference of the state courts; nor does it appear to me to be fit that the state courts should be in quiring into the abuse of the ex ercise of the authority of the general government. Numberless. cases may be supposed of the abuse of power, by the civil and military officers of the government of the United States; but the courts of the United States have competent authority to correct all such abuses, and they are bound to exercise that authority. The responsibility is with them, not with us; and we have no reason to doubt of their readiness, as well as ability, to correct and punish every abuse of power under that government. The judicial power of the United States is commensurate with every case arising under the laws of the union; and the act of congress (1 Laws of the U. S. 53. 55.) gives to the federal courts, exclusively of the courts of the several states, cognizance of all crimes and offences, cognisable under the authority of the United States." The other judges concurred in refusing to allow the habeas corpus, deeming that a question of sound legal discretion; but reserved themselves as to the jurisdiction of the state courts. Mr. Hunter, contra. 1. It is conceded that the opi 1817. Slocum V. nion or suspicion of the collector authorized him to detain any vessel, ostensibly bound with a cargo to some port of the United States, until the pleasure of Mayberry. the president should be known. This is not a replevin for the vessel. As to that, the owners submitted to the suspicion of the collector, and the pleasure of the president; but as to the cargo, neither of these officers had, by law, the power of detaining it. A momentary and unavoidable detention of the cargo, incidental to the seizure of the vessel, might indeed be deemed a necessary consequence of an undeniable power; but could never give the seizing officer a right to continue the detention of the cargo after the vessel was securely detained. Cargo, in the revenue laws; in the law of prize; and in questions of salvage, insurance, and freight; is contra-distinguished from vessel. The system of the embargo laws was intended to prevent exportation; and, in order to accomplish this only, they authorized the detention of the vehicle, without which no exportation could take place. Even the vessel was not forfeited, but detained; and the cargo was neither forfeited nor detained, but left in the possession of the owners to be freely consumed at home. The laws of the United States having then exerted their energy, and performed their office, the subsequent proceedings were illegal. In the case of Crowell v. M'Fadon, the action was trover. Lucrative damages were sought for a conversion proved not to be wrongful, but assented to by the party. Here the action is replevin, and the 1817. Slocum V. Mayberry. party only seeks to retain what is universally admitted to be his property. Incommoda vitantis quam commoda petentis melior est causa. 2. The plea to the jurisdiction of the state court is fatally defective in not stating another jurisdiction." 3. But even supposing the decision of this court must be against the jurisdiction of the state court, no judgment can be pronounced upon that basis. The thing in controversy cannot be restored to the plaintiff in error, for he never owned or claimed it; and the authority of the Paulina is sufficient to dissipate the mistaken notion of a forfeiture to the United States. No collision between the state and national judicatures can, therefore, arise. Even if the state court has improperly interfered, it is, at the worst, an innocent officiousness; since that court has determined the question precisely as the national tribunals would have done, and has merely anticipated the beneficence they intended. The mischief that the common law writ of prohibition seeks to remedy is the inconvenience of having the same question determined different ways, according to the court in which the suit is depending. But if it be shown to the court trying a suggestion in prohibition, that the question has been, or must be, determined exactly as the appropriate court would determine it, its merely being drawn at aliud examen would not be a sufficient ground for issuing the writ of prohibi e Doct. Pl. 23. 1 Vesey, 213. Mostyn v. Fabrigas. Coup. 172. a Vesey, 237. 3 Alk. 662. f 7 Cranch, 52, tion. No usurpation can be ultimately successful against the national jurisdiction. The very clause of the Judiciary Act of 1789, (sec. 25.) by which the cause is brought here, shows that this jurisdiction is amply armed for self defence. But this transaction does not present any thing for the judicial powers of the United States to act upon. The case of the Favourite was a question of salvage, depending, as such questions always do, upon personal merit and propriety of conduct. A severe assertion even of legal right may, in many instances, amount to demerit. In the case of Mr. Soderstrom," the very words of the 9th section of the Judiciary Act expressly excluded the state courts from jurisdiction. In that case there was a personal privilege in the consul, and an absolute disability in the court. The dictum of the chief justice of the supreme court of New-York, in the case of Ferguson, was disclaimed by the rest of the court, although under the particular circumstances of the case they declined to interfere. Unless the state tribunals have a right to interfere with the aid of their preventive process, in a case where the national jurisdiction has not lawfully attached, property detained under colour of authority may be dissipated by rapacious profusion, because a timely repleyin could not be interposed. The Attorney-General, in reply. 1. The plea of the defendant in the court below covers both the vessel and the cargo, and being demurred to, its facts 1817. Slocum V. Mayberry. |