Lapas attēli
PDF
ePub

PART 3. instructions of the President to a naval commander, when not strictly warranted by law, afford no protection to the officer against a claim for damages on account of a capture made by him in pursuance of such instructions. This case arose under the act of February 9, 1799, "further to suspend the commercial intercourse between the United States and France and the dependencies thereof." The first section forbade all vessels owned or employed by persons resident within the United States to proceed thence to any French port, or to be employed in any traffic or commerce with persons resident in France or any places under her jurisdiction. The fifth section authorized the President to give instructions to the commanders of public armed ships of the United States, to stop and examine any ship or vessel of the United States on the high seas, which there might be reason to suspect to be engaged in any traffic or commerce contrary to the true tenor of the act; and if upon examination, it should appear that such ship or vessel was bound or sailing to any port or place within the territory of the French Republic, or her dependencies, contrary to the intent of the act, it shall be the duty of such commanders to seize and send into port such ship or vessel. The instructions given by the President to our naval commanders, under this act directed the seizure of vessels bound from as well as to French ports. The vessel, on account of whose capture the suit was brought, was, when captured, returning with a cargo of coffee from a French West India port. The court were of opinion that the instructions and consequently the capture were not warranted by the act. Chief Justice MARSHALL, in delivering the opinion of the court, says: "I confess the first bias of my mind was very strong in favor of the opinion that, though the instructions of the executive could not

give a right, they might excuse from damages. I CHAP. 1. was much inclined to think that a distinction ought to be taken between acts of civil and those of military officers; and between proceedings within the body of the country and those on the high seas. The implicit obedience which military men usually pay to the orders of their superiors, which indeed is indispensably necessary to every military system, appeared to me strongly to imply the principle that those orders, if not to perform a prohibited act, ought to justify the person whose general duty it is to obey them, and who is placed by the laws of his country in a situation which, in general, requires that he should obey them. But I have been convinced that I was mistaken, and I have receded from this first opinion. I acquiesce in that of my brethren, which is, that the instructions cannot change the nature of the transaction, or legalize an act which, without these instructions, would have been a plain trespass. Captain Little then must be answerable in damages," &c.

What has thus far been said of the liability of the seizor, relates to cases of seizure without reasonable cause; in which cases the liability attaches at the moment of the seizure; and if the property be subsequently lost or injured while under seizure, it matters not how the loss or injury was occasioned. But as the authority of the owner over his property is suspended while it is under seizure, he has a right to have it safely kept, and in the event of its final acquittal, even though there was reasonable cause for seizure, to have it restored to him. The seizing officer while the property remains in his custody, and the marshal, after its arrest by him under the process of the court, are therefore responsible, in such a case, for any loss or injury resulting from want of ordinary care. Burke v. Trevitt, 1 Mason, 96.

PART 3.

CHAPTER II.

OF THE LIMITATION OF SUITS FOUNDED ON SEIZURES.

All prosecutions and suits for penalties or forfeitures, pecuniary or otherwise, accruing under the laws of the United States, are required to be commenced within five years from the time when the penalty of forfeiture accrued; provided the offender or the property liable to forfeiture, shall within that period be found within the United States, so that the proper process may be instituted and served against such person or property therefor. Act of Feb. 28, 1839.1 It is presumed from the terms of the act that it is not sufficient that the seizure be made within the prescribed period, unless the judicial proceedings be also instituted within that period.

Ch. 30, § 4: 5 Stat. at Large, p. 321. The same limitation for prosecutions to enforce fines and forfeitures incurred under the revenue laws was prescribed by the act of March 26, 1804, ch. 40, but without the proviso contained in the act of 1839. The limitation imposed by the 89th section of the collection act of 1799, ch. 22, was three years. Both these enactments are expressly repealed by the act of March 3, 1863, ch. 76, § 14, probably to relieve the act of 1839 from a possible doubt about their interference with it, though it seems very clear that they were superseded, and, by implication, repealed by that act.

CHAPTER III.

OF THE PROCEEDINGS FROM THE LIBEL OR INFOR-
MATION (INCLUSIVE), TO THE HEARING OR TRIAL,

INCLUDING CONDEMNATIONS BY DEFAULT.

SECTION 1.-As regulated by statute.

It has already been intimated that the proceedings of which we are now to treat, were, to a considerable extent, regulated by the act of March 2, 1799,' sometimes called the duty act and sometimes the collection act, and which still forms the basis of our revenue system.

The provisions alluded to are chiefly embodied in the 89th, 90th and 91st sections; and as it will be necessary in the sequel to make frequent and minute references to various clauses of these sections, it will be convenient and useful, long as they are, here to insert them. They are as follows:

SEC. 89. And be it further enacted, That all penalties accruing by any breach of this act, shall be sued for and recovered with costs of suit, in the name of the United States of America, in any court competent to try the same; and the trial of any fact which may be put in issue, shall be within the judicial district in which any such penalty shall have accrued; and the collector, within whose district the seizure shall be made, or forfeiture incurred, is hereby enjoined to cause suits for the same to be commenced without delay, and prosecuted to effect; and is, moreover, authorized to receive from the court within which such trial is had, or from the proper officer thereof, the sum or sums so recovered, after deducting all proper charges, to be allowed by the said court; and on the receipt thereof, the said collector shall pay and distribute the same without delay, according to law, and transmit, quarter yearly, to the treasury, an account of all moneys by him received for fines, penalties and forfeitures, during such quarter. And all ships or vessels, goods, wares or merchandise, which shall become 'Chap. 22: 12 Stat. at Large, p. 627.

CHAP. 3.

PART 3. forfeited in virtue of this act, shall be seized, libeled and prosecuted as aforesaid, in the proper court having cognizance thercof: which court shall cause fourteen days' notice to be given of such seizure and libel, by causing the substance of such libel, with the order of the court thereon, setting forth the time and place appointed for the trial, to be inserted in some newspaper published near the place of seizure, and also by posting up the same in the most public manner, for the space of fourteen days, at or near the place of trial; for which advertisement a sum not exceeding ten dollars shall be paid And proclamation shall be made in such manner as the court shall direct; and if no person shall appear and claim any such ship or vessel, goods, wares or merchandise, and give bond to defend the prosecution thereof; and to respond the cost in case he shall not support his claim, the court shall proceed to hear and determine the cause according to law; and upon the prayer of any claimant to the court, that any ship or vessel, goods, wares or merchandise, so seized and prosecuted, or any part thereof, should be delivered to such claimant, it shall be lawful for the court to appoint three proper persons to appraise such ship or vessel, goods, wares or merchandise, who shall be sworn in open court for the faithful discharge of their duty; and such appraisement shall be made at the expense of the party on whose prayer it is granted; and on the return of such appraisement, if the claimant shall, with one or more sureties to be approved of by the court, execute a bond in the usual form to the United States, for the payment of a sum equal to the sum at which the ship or vessel, goods, wares or merchandise, so prayed to be delivered are appraised, and moreover, produce a certificate from the collector of the district wherein such trial is had, and of the naval officer thereof, if any there be, that the duties on the goods, wares and merchandise, or tonnage duty on the ship or vessel so claimed, have been paid or secured, in like manner as if the goods, wares or merchandise, ship or vessel, had been legally entered, the court shall, by rule, order such ship or vessel, goods, wares or merchandise, to be delivered to the said claimant, and the said bond shall be lodged with the proper officer of the court, and, if judgment shall pass in

H

« iepriekšējāTurpināt »