
    THE UNITED STATES v. THE BRIG ELIZA.
    
      Fresent....all thejudges,
    
    A vessel . p^eeded toa foreign port, bet, ofjamkjy 1808> Seized upon & return, *hat penalty of she should not be seized
    THIS was an appeal from the sentence of the Circuit ;Court for the district of Delaware, which affirmed that of the district Court which dismissed the libel, and ordered the vessel to be restored. She had been.seized bythe collector of the district of Delaware, for having pro- “ ceeded to a foreign port or place,’.’ (viz: to Havanna) contrary to the 3d section of the act of January 9th, 1808, Cvol. 9.p. 11, J “supplementary to the act, entitled “ act-laying an embargo on all ships and vessels in ..the “ports and harbors of the United States;” and/or liaving exported from the United States sundry goods, . See. contrary to the Uh section of the act of March 12th, 1808, “in addition to the act, entitled an act supplementary to “the act, éntitled an act-laying an embargo,” &c. fvol 9. p. 71. J
    
    By the 3d section of the act of January 9th, 1808j .it is énacted, that if any vessel shall, contrary to the pro visions of that act, or of the act to which that is a supplement, proceed to a foreign port or place, such vessel shall be wholly forfeited, “ and if the same shall not be « seized, the owner or owners, agent, freighter or faq“tors of any such ship or vessel, shall, for every such “ offence, forfeit and pay a sum equal to double the value of the ship or vessel and cargo, and shall never “thereafter be allowed a credit for duties,” &c. “and «the master or commander of such ship or vessel, and all'other persons who shall knowingly be concerned « in such prohibited foreign'voyage, shall each respec- “ tively forfeit and pay a sum not exceeding twenty “ thousand, nor less than one thousand dollars, for eve- “ ry such offence, whether the vessel be seized and con- « demfted or not.”
    . By the ith section of the act of March 12th, Í 80S, it. is enacted, “that it shall not be lawful to export from the « United States, in any manner whatever, any goods. “ wares or merchandize of foreign1 or domestic growth « or manufacture, and if any goods wares or merchan«dize shall; during the. continuance of the act, entitled an act laying an embargo,” &c. « and of the act suppiementary,” &c. « Contrary to the prohibitions of this « act, be exported from the United States either by land «or water, the vessel,” &c. «in which the same shall « have been exported, shall,. together with the tackle, « apparel,” &c.« be forfeited,, and the owner or owners, «of such goods,” &c. « and every cither person knowing«ly concerned in such prohibited exportation, shall each « respectively forfeit and pay a sum. not exceeding ten thousand, dollars, for every such offence.”
    Joseph; R. Ingebsoxx, for the Appellees, (the Claimants of the vessel.)
    Contended, that as the vessel 'was once out of the jurisdiction of the United States after the offence committed, the United*'States could only sue for the penalty of the double value, and could, not seize the vessel itself. That the offence was, complete before the return of the vessel, and while she- was absent she could not be seized — that the words «if the same shall not be seized, mean, if the same cannot be seized. That as .the vessel could not be seized before her return, and as,the offence was complete before her return, the case had happened in which the United States .were1 entitled to sue for the double value; 'and as .the forfeiture of the vessel and the penalty of double value Were not concurrent and cumulative remedies, the United States could only resort ta the latter. ThA right to seize the vessel Was lost by her escape, arid could «oí be revived upon lver return. If the United' States had brought suit for the penalty before the return of. the vessel, they might!have supported it, although the vessel should have réturned before judgment* Their right of action was complete.
    
      Daxxas, — conifa.
    There is no limitation of time for the seizure^ — the yesécl has actually bper seized, and thereby the United States have relinquished, their claim tothe double valúe. If the vessel could bé seized, it is probable the: United .States Could not have recovered tiie double value$ and in un action therefor it would have been necessary for the United States to prove that the vessel could not have been séized.. This could not be proved while the vessel was lying in a port of the United States, liable to seizure.
    
      March 5th.
    
    
      Ml the judges being present,
    
   Marshall, Ch. J.

stated that it was the • opinion, of the Court that the vessel was liable to seizure; but that a majority of the Court was of opinion that the offence was not complete’until the arrival of the vessel in a foreign port; but the facts of the Case do not appear so as to enable the Court to. decide that poj'nt^ the cause, is therefore continued for further proof.  