1822 AWARD OF THE FISHERY COMMISSION. 



Mr. DANA. It is also prohibited to sue. 



Mr. THOMSON. Well, they may be virtually prohibited from suing at 

 all, but I do not think that the act says so. I am, however, quite will- 

 ing to admit that this clause is just as bad as a clause prohibiting from 

 suing at all, because, as the party cannot recover damages or costs on 

 such certificate being given, it practically prevents him from suing at 

 all. I am quite satisfied, however, that he could not get the question 

 before a court, unless he had the right to sue. 



Mr. DANA. I believe that you are right about that. This is decided 

 by the court of first instance. The court tries the question of seizure, 

 and gives the certificate. 



Mr. THOMSON. That is it, and it certainly practically prevents suing 

 at all ; otherwise a person acting in the discharge of his duty would not 

 be for a moment safe from annoyance. The moment the judge grants 

 a certificate stating that there was reasonable and probable cause for 

 the seizure, no suit can be further maintained. 



Mr. FOSTER. Where there is probable cause for seizure, he cannot 

 bring any action to recover any costs, nor any damages. What I would 

 like to call your attention to is this : I think that you will be unable to 

 find any statute of Great Britain or of the United States where this 

 seizure by an executive officer is made prima-facie evidence of the lia- 

 bility to forfeiture. 



Mr. THOMSON. Well, we will see about that before I get through. 



Mr. DANA. The owner is not a party to that suit in which such cer- 

 tificate is given. 



Mr. THOMSON. It is a proceeding in rem, and the owner is clearly a 

 party to it. I may explain to your excellency and honors who are not 

 lawyers, that the proceeding in rem is one directly against the property, 

 and not against the person of the owner. He gets formal notice of the 

 libel filed by the serving-officer, and has the right to appear and defend. 

 If he does not, his property will probably be condemned. I say, there- 

 fore, that it is idle to assert that he is no party to the suit Should he 

 elect to bring a suit against the seizing-officer, he is of course the party 

 plaintiff. 



Mr. Dana and Mr. Foster have both pointed to the bond for costs re- 

 quired to be given by a claimant of property seized, and characterize 

 the law requiring it to be given as oppressive and unjust. Let us see 

 why this bond is required. 



The proceeding in rem, as I have already stated, is not against the 

 owner of the goods personally, but against "his property. If he chooses 

 to contest the legality of the seizure by resisting a condemnation, he 

 ought to be made liable for costs in case of failure. But he cannot be 

 made so liable unless he gives his bond to that effect. Where is the 

 oppression or the injustice of this rule? Without it, the government 

 would be forced to contest at its own expense every seizure made by its 

 officers. 



I am surprised at this objection to our law being raised by legal men, 

 and your excellency and your honors will no doubt be surprised when I 

 assure you that the law of the United States on this subject is similar 

 to our own, as I shall proceed to show, to the entire satisfaction, or dis- 

 satisfaction, of my learned friends on the other side. 



I will now read from the Revised Statutes of the United States, at 

 page Id, section 909: 



In suiu on information broupht where any seizure is made pursuant to any act providing 

 repnlatinp the collection ot duties onimports or tonnage, if the property is claimed by 

 any person, the burden of proof shall lie upon such claimant. 



