I 



»-• 





'V' 



391 



annoyance. The moment tho Judge crrnnts a certificate stating that tliere was reasonable 

 and prol)al)lo cause for the seizure, no suit c;ui be further maintained. 



Mr. Foxier. — Where there is probable cause for seizure, lie cannot bring any action 

 to recover any costs, nor any damages. What I would liivo to call your attention to is 

 this : 1 think that you will he unable to (ind any Statute of Great Britain or of the United 

 States where this seizure by an executive officer is made prima facie evidence of the 

 liability to forfeiture. 



ilr. Thomson, — Well, we will see about that before I get through. 



Mr. Dana. — The owner is not a party to that suite in whicii such certificate 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 Honours who are not lawyers, that the proceeding 

 in rem is one directly against the properly and not against the person of the owner. He 

 gets formal notice of the libel filed by the serving officer, and has tho right to appear 

 and defend. If he does not, his property will probably bo condemned. I say, therefore, 

 that it is idle to assert that he is no party to the suit Sliould he elect to bring a suit 

 against the seizing officer he is, of course, the party plaintifi'. 



Air. Dana and Mr. Foster have both pointed to the bond for costs required to be 

 given by a claimant of property seized, and characterizes tho law requiring it to be given 

 as oppressive and unjust. Let us see why this bond is required. 



The proceeding in ren., as I have already stated, is not against the owner of the 

 goods personally, but against his properly. 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 tlie 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 Honours 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 dissatisfaction, of my learned friends on the otlier side. 



I will now read from the Revised Statutes of the United States at page 171, 

 section 900 : — 



'' In suits of infurinalion lu'inijjlit whcro any scizuvo i=< made puv=:>iaiit to uny Act providing for or 

 Tegul;Uin;4 the colli'utiun of duties on iuiports or tounage, il' the [jroporty is claimed by any person, the 

 bujduii I'i' proof sliall lie upou such clainiuut." 



Ife-'c is the United States' Statute; and I am surprised, I must confess, at United 

 States' '.awycrs making any charge against British legislation when their legislation on the 

 same s abject is in no wise diticrent. The clause thus concludes : — 



'• I'rovided that probablu cause is ^liowu for such prosecutiou, to bo judged of by tho Court." 



There is no difference whatever between our law and theirs on this subject. 

 Then again on page 182 of the same volume, section 970, it says this: — 



"When in •■my ]irospeutiou connuenced on iiccoiint of the seizure of any vessel, goods, wares, or 

 morchaiidize, made iiy any coUecror or oilier oliicer under any Act of Conp'ess authorizing such seizure, 

 juil>,'iueiit is rendered for the claimant, but if it apiiears to the Court that there was reiisouable cause 

 of Seizure the Court siialL cause a jiroper certificate thereof to be entered, and the claimant shall not 

 iu such case be entitled to costs, nor shall tln^ person who made the seizure, nor tli(! prosecutor, bo 

 liable to suit or judgment on account of such suit or pro3Ccuti<in ; jirovided, that the vessel, goods, 

 wares, or merchandize he, after judgment, forthwith returned to such claimant or his agent." 



This clearly proves what is done'in case the seizing officer is in the wrong, and when 

 cnnsocjuiMitly the jiropeity seized has to be restored, and if that enactment is not on all 

 fours with t)urs I do not know what is. 



Mr. Foster. — There is no such provision lor the returi' of the property in your Act. 



Mr. Thomson. — I am really surprised at .Judge Fo ter stying so. What is the result 

 of a proceeding in rem ;^ Can there: he any doubt about it at r'l ? It must result in a 

 judgment one way or the other. There are only two Jiulg;nients ])ossibL In a i)roceeding 

 in rem; judgnieut o! condcnmalion, or jiulgmciit of accjiiiital, which restores the i)roperty 

 at once; while it is transferred to the (Jovernment in cu.se of condemnation. I have not 

 time to look for the matter in this innncusi' volume, but 1 'lave here another book which 

 shows that a bond uiust be given in llie.-e cises iu tho United States as well as here. I 

 think that the Ihiitcd Stiites look alter their interests about as well as any other nation ; 

 and I believe that in the volume which I now hold iu my baud it will be found that a bond 

 has to he given. This volume contains the Customs Regulations of l!i74, and epitomes 

 f280] 3 F 2 



