APPEAL from the circuit court for the district of Massachusetts.
This was an information for a violation of the non-importation acts. On the part of the appellants it was alleged, that the vessel, (which sailed from Portland, in the District of Maine, in April, 1813, and returned to that port, laden with a cargo of molasses, in the month of August, of the same year,) instead of going to Cumana, her ostensible port of destination, had proceeded to Guadaloupe, then a British possession, and there took in her cargo. This was the sole question of fact in the cause; on which the court below decreed restitution to the claimant, from which decree an appeal was entered on behalf of the United States to this court.
Mr. Webster, for the claimants, objected to the reading of the depositions taken de bene esse, in this cause. He argued, that there is no provision in the laws, by which testimony in writing can be taken, to be used here, without a commission issuing from this court. The provisions of the judiciary act of 1789, ch. 20., section 30., do not extend to the supreme court; and the act of 1803, ch. 93., does not prescribe any new mode of taking testimony, but only declares that new evidence may be used in prize and instance causes. Ex parte testimony may be taken to be used in the courts below, but here it may not; because this is the tribunal of last resort, and the other party might be surprised by the production of such proof to his irretrievable injury. It was to guard against this consequence that the laws omitted any provision for such testimony to be used in this court.
The Attorney-General, contra, stated, that it had been the uniform practice to take testimony to be used in this court in the same manner as if taken for the district and circuit courts; and that the practice had been uniformly acquiesced in. He argued, that this court, sitting as a court of admiralty, had a right to receive ex parte affidavits, in the same manner as the circuit and district courts, or the courts of admiralty abroad, who received affidavits and permitted them to be read, whether taken ex parte or under a commission.
Mr. Chief Justice MARSHALL delivered the opinion of the court.