PART 3.

During the revolution, and until the adoption of the federal constitution, this branch of jurisdiction was exercised by state courts of admiralty instituted for that purpose.

At the first session of congress, under the constitution, it was, as we have seen, temporarily provided that the forms and modes of proceeding in causes of admiralty and maritime jurisdiction, should be according to the course of the civil law. And by the permanent act, commonly known as the process act, of May 8, 1792, it was enacted that the forms of proceeding in suits in admiralty and maritime jurisdiction, should be according to the principles, rules and usages, which belong to courts of admiralty, as contradistinguished from courts of common law, except so far as had been provided by the judicial act,1 subject, however, to such alterations and additions, as the courts shall deem expedient, or such regulations as the supreme court should think proper, from time to time, by rule to prescribe."

No reason is perceived for the supposition that by the reference contained in the act of 1789, to the civil law, congress intended to change the accustomed modes of proceeding which had prevailed in the colonial, and subsequently in the state courts of admiralty; nor, that by the reference in the process act of 1792, to the usages of courts of admiralty, it was intended to prescribe different modes of procedure from those contemplated by the former act. The antecedent practice had been in substantial conformity with the civil law, and especially in the important particular (which it is probable congress had chiefly in view), of the form of trial. But 'The provisions of the judicial act here referred to relate to the mode of proof and to appeals.

Ch. 34, § 2: 1 Stat. at Large, p. 275.

certain forms and usages, originally peculiar to the common law, had been adopted by the British courts of admiralty, and thence engrafted in our own; and it was, probably, with a view to this circumstance, and for the express purpose of legalizing these modifications of the civil law forms of procedure, that a different phraseology was employed in the latter act.1 With the exception of proceedings on seizures under the laws of impost, navigation and trade (which, as will be seen in the sequel, are, to a considerable extent, regulated by the collection act of 1799), and proceedings in rem, for the recovery of seamen's wages (which to some extent are also prescribed by the act of 1790, for the regulation and government of seamen, &c.), the admiralty jurisdiction has been left to be carried into effect with no other legislative direction than what was implied, ex vi termini, by its designation as such, and the injunctions above mentioned, contained in the acts of 1789 and 1792.

Actions in admiralty are either in rem—against the thing; or in personam—against the person.

The party instituting the suit is called the libelant. Where the action is in rem, it is entitled in the name of the libelant against the thing libeled; and he who appears and is admitted to defend, is called the claimant. When the suit is in personam, the person against whom it is brought, is called the respondent.

The officers of court by whom proceedings in admiralty are conducted in behalf of suitors, are denominated proctors and advocates (names borrowed from the civil law), corresponding with attorneys and counselors in courts of common law.

The descriptions of actions of which it is proposed here to treat, are suits in rem, prosecuted in the name 1 See Manro v. Almeida, 10 Wheat. R., 473.

PART 3. and under the authority of the United States by the attorney of the United States for the district in which the action is brought; and they are instituted, sometimes on the admiralty side, and sometimes on the common law side of the court, according to circumstances.

With these explanatory observations, I proceed to the consideration of the particular subject indicated by the title to this Part.

CHAP. 1.

CHAPTER I.

OF THE SEIZURE.

Judicial proceedings in rem for the purpose of enforcing a forfeiture can be instituted only in pursuance of a previous seizure of the thing to be proceeded against. It is by virtue of the seizure that the thing is brought within the reach of the process of the court, and, constructively into its possession; when, and not before, judicial cognizance attaches. The Ann, 9 Cranch, 289.

1. How it is to be made.

To constitute a valid seizure, there must be an open, visible possession claimed, and authority exercised under the seizure.

The party must understand that he is dispossessed, and that he is no longer at liberty to exercise any dominion over the property. But this by no means implies the necessity of employing physical force, where there is a voluntary acquiescence in the seizure and dispossession. If the party upon notice, agrees to submit, and actually submits to the command and control of the seizor, that is sufficient. The Josepha Segunda, 10 Wheat., 312. No record or memorandum of the seizure is necessary. 1 Gallis., 75.

There must be a good subsisting seizure at the time the action is commenced; and the jurisdiction acquired by the seizure may be lost by voluntary discharge or abandonment, and, in the case of a vessel, by subsequent escape or capture. Hudson et al. v. Guestier, 4 Cranch, 293.

But to constitute an abandonment after seizure, there must be an unequivocal act of restoration or dereliction. The Abby, 1 Mason, 360.

PART 3.

The practice prevailing in courts of admiralty of proceeding to the condemnation of prizes of war while lying in the ports of foreign neutral nations, has been held to be applicable also to municipal seizures. The principle on which the practice rests in cases of capture jure belli is, that the prize, when in a neutral port, is in the possession of the sovereign of the captor; the neutral sovereign having no right to divest the captor of his possession, because he can, by himself or by his courts, take no cognizance of the question of prize or no prize; and this principle is considered to hold good in cases of seizure for the violation of municipal regulations. Hudson et al. v. Guestier, 4 Cranch, 293. And it makes no difference that the seizure was beyond the territorial limits of the nation of the seizor, and the vessel carried directly to the neutral port. S. C., 6 Cranch, 281, overruling the principle of the case of Rose Himely, 4 Cranch, 241. This case, however, turned upon the effect of a decree of condemnation by a French court; and I am not aware that the practice sanctioned by it in respect to the courts of other nations where it prevails, has been enforced in our own courts; but their right to adopt it is strongly intimated in the case of The Rover, 1 Gallis., 75.

2. By whom made.

Officers of the customs.] By the 70th section of the act to regulate the collection of duties on imports and tonnage, passed March 2, 1799, it is enacted "that it shall be the duty of the several officers of the customs to make seizure of, and secure, any ship or vessel, goods, wares or merchandise, which shall be liable to seizure by virtue of this, or any other act of the United States, respecting the revenue, which is now, or may hereafter be enacted, as well