Durousseau and Others v. the United States

• Decision Date: 01 February 1810
• Citation: 10 U.S. 307,3 L.Ed. 232,6 Cranch 307
• Parties: DUROUSSEAU AND OTHERS v. THE UNITED STATES
• Court: U.S. Supreme Court

10 U.S. 307

6 Cranch 307

3 L.Ed. 232

DUROUSSEAU AND OTHERS v. THE UNITED STATES.

February Term, 1810

ERROR to the district court of the United States, for the district of Orleans.

This was a suit brought by the United States against

Durousseau and others upon a bond, given in pursuance of the act of congress of December 22, 1807, usually called the embargo act. (Laws U. S. vol. 9. p. 7.) The bond bears date the 16th of May, 1808, and the condition is, that the goods therein mentioned should be 'relanded in the United States, at the port of Charleston, or at some other port of the United States, the dangers of the seas excepted.'

The proceedings in the court below are according to the forms of the civil law, by petition or libel and answer. The libel is in the nature of an action of debt for the penalty of the bond, and the plea is in the nature of a special plea, stating facts which were supposed to be sufficient evidence that the defendants were prevented by the dangers of the seas from relanding the goods in the United States.

The answer, or plea, states, that the vessel sailed from New Orleans with intent to proceed to the port of Charleston, and that in the due prosecution of her voyage from New Orleans to Charleston, she was, 'on the 26th of May, 1808, and on divers days from the said 26th of May till the 1st of June then next following, upon the high seas by unavoidable accident by force of the winds and waves, so much injured and endamaged, that upon the said 1st day of June, for the preservation of the said vessel and cargo, and the lives of her crew and passengers, it was found necessary to put into the port of Havanna to refit the said vessel for her voyage aforesaid; and that the persons administering the government at the said port of Havanna, by force of arms, and against the will and consent of these defendants, and of the captain and supercargo of the said vessel, and all other persons having the charge and direction of the said vessel or cargo whatever, did detain the said vessel and cargo at the said port of Havanna, and by superior force did prevent the said vessel, with her cargo, from pursuing her said voyage to the port of Charleston aforesaid, or from going to any other port of the United States, and landing the said cargo therein pursuant to the condition of the said bond, and did also by force so as aforesaid prevent, and have

always hitherto prevented, the said cargo, or any part thereof, from being sent in any other manner to the said United States and landed therein pursuant to the condition of the said bond; and these defendants aver, that the damages and injuries aforesaid sustained by the said vessel were unavoidable, and by force of the winds and waves; and that by reason of the detention, and continuation thereof, as aforesaid, by superior force as aforesaid, they could not at any time heretofore, nor can they yet, land the said goods, wares and merchandises in the said United States, pursuant to the condition of the said bond in the said petition set forth, by reason whereof, and also by force of the statutes in such case made and provided, these defendants are, as they are advised, discharged from the payment of the said sum of money in the said bond or obligation mentioned, or any part thereof; these defendants, therefore, pray, that a jury may be empannelled to inquire of the facts aforesaid, should they be denied by the United States, and that these defendants may be hence dismissed with their reasonable costs and damages in this behalf most wrongfully expended,' &c.

To this answer the attorney for the United States filed a general demurrer, and the court below, without argument, rendered judgment for the United States; whereupon the defendants sued out their writ of error.

Rodney, Attorney-General, and Janes, for the United States.

Contended, that this court has no jurisdiction, because there can be no writ of error to, or appeal from, the decisions of the district court of Orleans.

By the act of congress passed March 26, 1804, entitled an act erecting Louisiana into two territories, and providing for the temporary government thereof, vol. 7. p. 117. § 8. it is enacted, that 'there shall be established in the said territory a district court, to consist of one judge, who shall reside therein, and be called the district judge, and who shall hold, in the city of Orleans, four sessions annually;' 'he shall in all things have the same jurisdiction and powers, which are by law

given to, or may be exercised by, the judge of Kentucky district.'

By the judiciary act of September 24, 1789, vol. 1. p. 54. § 10. the district court, besides the ordinary jurisdiction of a district court, has 'jurisdiction of all other causes except of appeals and writs of error, hereinafter made cognisable in a circuit court, and shall proceed therein in the same manner as a circuit court, and writs of error and appeals shall lie from decisions therein to the supreme court in the same causes, as from a circuit to the supreme court, and under the same regulations.'

By the ninth section of the same act the district courts have 'exclusive original cognisance of all suits for penalties and forfeitures incurred under the laws of the United States.'

Hence, it appears, that writs of error will lie to the Kentucky district court in those causes only in which it acts in the capacity of a circuit court. The word 'therein,' means in causes other than those of which the district courts generally had cognisance under the 9th section of the act.

This court, in the cases of Clarke v. Bazadone, 1 Cranch, 212. and Bollman and Swartwout, 4 Cranch, 75. disclaimed any appellate jurisdiction not expressly given by law; and by a late act, vol. 8. p. 21. and vol. 9. p. 116. extending jurisdiction in certain cases to state judges and state courts, the jurisdiction is given without appeal; which shows that congress are not anxious that there should be an appeal from all the courts to which they have given jurisdiction. There is no appeal from the judge of the district of Orleans in cases where he exercises only the district court jurisdiction. In Kentucky there was no circuit court. The district judge, although he exercised the powers and jurisdiction of a circuit court, yet he did not hold a circuit court. His court was merely a district court. The courts of the United States can exercise no jurisdiction not expressly given by statute,

3 Dallas, 337. Although this suit was upon a bond, yet it was in fact a suit for a penalty or forfeiture, like the case of the auctioneer's bond in 2 Anstruther, 586, 587.

This is as much a penalty as if it had been merely declared by the statute without having been put into the form of a bond.

E. Livingston, contra.

This court has jurisdiction in consequence of its being the supreme court, and the other an inferior court. The terms supreme and inferior are correlative, and imply a power of revision in the superior court.

The judiciary act of 1789 gives a writ of error from the supreme court to the district court of Kentucky, in all cases where a writ of error would lie to a district court from a circuit court, as well as in those cases where a writ of error lies generally from the supreme court to a circuit court. The word 'therein,' means in that court, and not those cases only in which that court exercises the jurisdiction of a circuit court.

The act of congress gives the Orleans judge the same jurisdiction and powers as are given to the Kentucky judge. If it had been intended to give him the same jurisdiction without limiting his power by the right of appeal, congress would not have used the word powers. The same powers, means no greater powers; but if the Kentucky judge had limited powers, and the Orleans judge has unlimited powers, the powers cannot be the same.

C. Lee, same side, cited the case of Morgan v. Callender, 4 Cranch, 370. in which this court decided that it has jurisdiction in cases of appeal from the district court of Orleans. He also suggested the inconvenience which would result from having a revenue court in Orleans not subject to the control of the supreme court; and from a difference of construction in the laws respecting

trade, commerce and revenue in different parts of the territories of the United States.

Jones, in reply, observed, that the inconvenience arising from the want of uniformity of decision already exists with respect to all cases under 2,000 dollars value, in which there can be no appeal, or writ of error.

March 15.

MARSHALL, Ch. J. delivered the opinion of the court, upon the question of jurisdiction, as follows:

This is the first of several writs of error to sundry judgments rendered by the court of the United States for the territory of Orleans.

The attorney-general having moved to dismiss them, because no writ of error lies from this court to that in any case, or, if in any case, not in such a case as this; the jurisdiction of this court becomes the first subject for consideration.

The act erecting Louisiana into two territories establishes a district court in the territory of Orleans, consisting of one judge who 'shall, in all things, have and exercise the same jurisdiction and powers which are, by law, given to, or may be exercised by, the judge of Kentucky district.'

On the part of the United States it is contended, that this description of the jurisdiction of the court of New Orleans does not imply a power of revision in this court similar to that which might have been exercised over the judgments of the district court of Kentucky; or, if it does, that a writ of error could not have been sustained to a judgment rendered by the district court of Kentucky, in such a case as this.

On the part of the plaintiffs it is contended, that this court possesses a constitutional power to revise and correct the judgments of inferior courts; or, if not so, that such a power is implied in the act by which the ...