sent or connivance of the owner, or of some person CHAP. 3. employed or trusted by him.

But as the proof required of the public prosecutor

in the first instance is slight, cases of this nature may well arise, in which he might be able to make out a prima facie case of forfeiture, by proving just enough for this purpose, and omitting to give evidence of the exculpatory circumstances. In such cases it would be advisable for the claimant, in order to preclude all doubt of his right to prove his justification, to set it up by way of defense, affirmatively, in his answer or plea.

Statute of limitations.] The rule in England appears to be that the limitations of a penal suit need not be pleaded, but may be given in evidence under the general issue. Buller's Nisi Prius, 195; Espinasse on Penal Statutes, 78. And so Mr. Justice STORY understood the law to be in the case of Parsons v. Hunter, 2 Sumner, 419, 426. Under these authorities this rule was applied in a late case of seizure on the admiralty side of the court (The United States v. The Black Hawk), in the district court for the northern district of New York.

3. Of the bond for costs.

By the 89th section of the collection act, before the owner of property seized in virtue of that act, is entitled to contest the forfeiture, he is required, as we have seen, to "give bond to defend the prosecution, and respond the costs in case he shall not support his claim." Under this provision it is understood to have been the practice of the courts of the United States to exact from the claimant a bond, with one or more sureties, as the condition on which he is 'See the commencement of this chapter.

PART 3. allowed to contest the alleged forfeiture of his property. This may not have been the case in all the districts, though I am not aware of any exception. But the act being silent as to sureties, I cannot but think it at least doubtful, whether this practice is in accordance with the actual intention of the legisla ture. There are certainly strong reasons why no security for costs beyond the individual bond of the claimant should be required. The proceeding on the part of the United States is highly rigorous. The citizen is forcibly dispossessed of his property by a subordinate ministerial officer of the government, himself entitled to share in the forfeiture if condemnation shall follow, and, however groundless the seizure may in fact have been, if only a plausible pretext for making it can be shown, it is condemned of course, unless the owner can establish his innocence by proof on his part; and even when he does so, he is without redress for all the loss, inconvenience and expense to which he has been subjected by the seizure and prosecution. In all this there may be nothing to complain of. But to deprive the owner of the right of being heard in his defense, and peremptorily to subject his property to confiscation without any inquiry into the validity of the grounds of seizure, unless he can furnish security for the payment of costs in the event of his failure to maintain his claim, seems to be discordant with the spirit of our civil institutions. The law lends its sanction to nothing analogous to this in controversies between private suitors, and the genius of our government is hostile to the exercise of prerogative rights. To be permitted to contest a charge of guilt and the reality of an alleged forfeiture, ought not to be regarded as a privilege but as a right, and it is not easy to discern the justice of annexing to its exercise an oner

ous and sometimes impossible condition. When no CHAP. 3. claimant appears, the forfeiture is treated as a mere lien on the thing, and the costs are paid out of its proceeds. The interposition of a claim no otherwise alters the case than by augmenting, in some degree, the expenses of the prosecution, and to compel the owner on this ground to bring in a third person as surety, who, aside from the promptings of his love of justice, or his benevolence, has no concern in the matter, appears to me, I confess, to savor of rapacity and oppression. Unless, therefore, congress, in assuming, as it has done, to regulate this part of the proceedings in cases of seizure, have unequivocally required the courts to exact the security in question, it ought not to be required. But the omission of any such requirement in terms, is not the only evidence furnished by the act of the absence of any such intention.

The 89th section after requiring the claimant to "give bond" to respond the costs, &c., immediately proceeds to prescribe the conditions on which property seized shall be delivered to the claimant, pendente lite; and, as we have seen, one of these conditions is, that he "shall, with one or more sureties, to be approved of by the court, execute a bond," &c. The act of 1799, containing these provisions, was a substitute for the collection act of 1790, the 67th section of which contains substantially the same provisions, and makes precisely the same distinction between the bond for costs and that for the appraised value. The propriety and necessity of requiring sureties in the latter case must be obvious to every one. There is, therefore, no want of sufficient reasons for this distinction, and the presumption is strong that it was intentional. There are also a multitude of other instances in which laws relating to judicial and other

PART 3. proceedings, expressly require bonds with sureties to be given, insomuch that it may safely be affirmed to be the uniform practice of congress, whenever it is intended to exact sureties, to declare such intention in terms.

The bond is usually offered and filed simultaneously with the claim, and it has been usual in the New York districts to require it to be in the penalty of two hundred and fifty dollars.1

The following supplemental judgment pronounced by Mr. Justice STORY in the case of the schooner Sally and cargo, which had been captured during the last war by an American privateer for an alleged trading with the enemy, and condemned as lawful prize, cannot fail to be acceptable to the reader.

"The principal questions on the merits having now been disposed of, an application has been made to the court respecting the taxation of costs and expenses against the claimants. The bill presented to the court is as follows, viz.:

The items objected to by the claimants are: 1. The Clerk's fees for recording the proceedings, and for the copy thereof transmitted to this court. 2. The marshal and clerk's fees on the sale under a perishable monition. And 3. Mr. Rice's bill for dockage and custody.

It is the unquestionable rule of the court, that the claimants shall not be liable for expenses, which would have been incurred independently of the interposition of their claim; but for all charges and expenses,

SECTION VIII.

EVIDENCE.

The usual mode of taking proofs in the British courts of admiralty is by deposition on interrogatories before a standing examiner, or a commissioner under which grow out of their claim, they must be held responsible. On this ground the commissioners' fees for the depositions taken under the standing interrogatories, though not objected to, must be deducted; but the expenses of the depositions of Slocumb and others, which were admissible on the order for further proof, are properly chargeable. The survey and appraisement, having been made at the instance of the claimants, fall under the same consideration.

The objection to the clerk's fees for recording, &c., rests upon the ground that he is not obliged to record all the proceedings in the circuit court; and, at all events, is not obliged to record the evidence. But however true the latter position may be under our practice, as to cases on the instance side of the admiralty (on which I give no opinion), I am well satisfied that the clerk is bound to record the whole proceedings in this court in prize causes, as the evidence is always in writing, and inseparable from the allegations of the parties.

*

*

As to the fees of the clerk for a copy of the proceedings, it is a mere question of fact whether the sum claimed by the clerk is to be allowed or not. The Statute of 1st March, 1793, ch. 20, has prescribed the fees of the clerk for services of this nature, and the court is bound to apply the regulations. It will be easy for the counsel to ascertain the amount which will become thus due to the clerk, and that sum and no more must be allowed.

As to the marshal's and clerk's fees on the sales of the cargo by order of the court, I think, that, in general, it must be considered a charge on the property itself. It is a proceeding adopted for the benefit of all parties, and unless in very special cases should be paid by the party, to whom the property is ultimately awarded. Nothing has been presented to the court to distinguish the present case from the general rule.

As to the dockage of the schooner, I think it must be allowed against the claimants, from the time of the interposition of their claim to the time of the delivery on bail. This expense was necessarily incurred for the preservation of the vessel, during the litigation of their claim; and they have not, in my judgment, entitled themselves to be relieved from the burden. Cases may occur in which it would be highly proper to make this charge on the property.

With respect to the charge of Mr. Rice for custody, the allowance of it depends altogether upon the facts. If a person was in fact employed to take care of the schooner during the whole time, a proper compensation

CHAP. 3.