favor of the claimant, the court shall cause the said bond to CHAP/3. be canceled; but if judgment shall pass against the claimant as to the whole, or any part of such ship or vessel, goods, wares or merchandise, and the claimant shall not, within twenty days thereafter, pay into the court, or to the proper officer thereof, the amount of the appraised value of such ship or vessel, goods, wares or merchandise, so condemned with the costs, judgment shall and may be granted upon the bond on motion in open court without further delay. And when any prosecution shall be commenced, on account of the seizure of any ship or vessel, goods, wares or merchandise, and judgment shall be given for the claimant or claimants, if it shall appear to the court, before whom such prosecution shall be tried, that there was a reasonable cause of seizure, the said court shall cause a proper certificate or entry to be made thereof, and in such case the claimant or claimants shall not be entitled to costs, nor shall the person who made the seizure, or the prosecutor be liable to action, suit or judgment, on account of such seizure and prosecution; Provided, That the ship or vessel, goods, wares or merchandise, be, after judgment, forthwith returned to such claimant or claimants, his, her or their agent or agents: And provided, That no action or prosecution shall be maintained in any case under this act, unless the same shall have been commenced within three years next after the penalty of forfeiture was incurred.

SEC. 90. And be it further enacted, That all ships or vessels, goods, wares, or merchandise, which shall be condemned by virtue of this act, and for which bond shall not have been given by the claimant or claimants, agreeably to the provisions for that purpose, in the foregoing section, shall be sold by the marshal or other proper officer of the court in which condemnation shall be had, to the highest bidder at public auction, by order of such court, and at such place as the court may appoint, giving at least fifteen days' notice, (except in cases of perishable goods,) in one or more of the public newspapers of the place where such sale shall be; or, if no paper is published in such place, in one or more of the papers published in the nearest place thereto; for which advertising, a sum not exceeding five dollars shall be paid. And the amount

PART 3. of such sales, deducting all proper charges, shall be paid within ten days after such sale, by the person selling the same, to the clerk, or other proper officer of the court directing such sale to be by him, after deducting the charges allowed by the court, paid to the collector of the district in which such seizure or forfeiture has taken place, as hereinbefore directed.

"SEC. 91. And be it further enacted, That all fines, penalties and forfeitures, recovered by virtue of this act (and not otherwise appropriated), shall, after deducting all proper costs and charges, be disposed of as follows: one moiety shall be for the use of the United States, and be paid into the treasury thereof, by the collector receiving the same; the other moiety shall be divided between, and paid in equal portions to the collector, and naval officer of the district, and surveyor of the port, wherein the same shall have been incurred, or to such of the said officers, as there may be in the said district; and in districts where only one of the aforesaid officers shall have been established, the said moiety shall be given to such officer; Provided, nevertheless, That in all cases where such penalties, fines and forfeitures shall be recovered in pursuance of information given to such collector, by any person other than the naval officer or surveyor of the district, the one-half of such moiety shall be given to such informer, and the remainder thereof shall be disposed of between the collector, naval officer, and surveyor or surveyors in manner aforesaid; Provided also, That where any fines, forfeitures and penalties incurred by virtue of this act are recovered in consequence of any information given by any officer of a revenue cutter, they shall, after deducting all proper costs and charges be disposed of as follows: one fourth part shall be for the use of the United States, and paid into the treasury thereof, in manner as before directed; one fourth part for the officers of the customs, to be distributed as hereinbefore set forth; and the remainder thereof to the officers of such cutter, to be divided among them agreeably to their pay: And provided likewise, That whenever a seizure, condemnation and sale of goods, wares or merchandise, shall take place within the United States, and the value thereof shall be less than two hundred and fifty dollars, that part of the forfeiture which accrues to

the United States, or so much thereof as may be necessary, shall be applied to the payment of the cost of prosecution: And be it further provided, That if any officer, or other person, entitled to a part or share of any of the fines, penalties or forfeitures, incurred in virtue of this act, shall be necessary as a witness on the trial for such fine, penalty or forfeiture, such officer or other person may be a witness upon the said trial; but in such case he shall not receive, nor be entitled to any part or share of the said fine, penalty or forfeiture, and the part or share to which he otherwise would have been entitled, shall revert to the United States.

As soon, then, as the seizure has been made, it is the duty of the seizing officer to cause proceedings to be instituted to enforce the supposed forfeiture: and for this purpose he is to give notice of the seizure, of the place where it was made and of the particular grounds of it, to the United States attorney of the proper judicial district. If the seizure be made within the limits of a judicial district, the court for that district alone can take cognizance of it, wherever the offense may have been committed. See the judiciary act of 24th September, 1789, ch. 20, §9: 1 Stat. at Large, 73; Keen v. The United States, 5 Cranch, 304; The Marino, 9 Wheat., 351. But if the seizure be made on the high seas, it is properly cognizable in the district into which the thing seized is first brought. Id. The Abby, 1 Mason, 360.1

'In this case, Mr. Justice STORY considers the phrase "high seas," in the connection in which it is used in the text, as importing all waters on the sea-coast below low-water mark, and at flood tide below high-water mark. He must of course be understood to refer, as indeed the circumstances of the case imply, only to the main coast, and not to the shores of bays, harbors, inlets and the like, within the limits of a state. Each of the judicial districts of the United States consists of a state or part of a state, eo nomine, and is of course conterminous with it.

CHAP. 3.

PART 3.

SECTION II.

OF THE LIBEL AND INFORMATION.

The district attorney, upon receiving due notice of the seizure, proceeds to institute a suit against the thing seized, by drawing up a written statement of the case, setting forth the facts by reason of which a forfeiture is supposed to have been incurred. When the seizure has been made on the high seas, or on waters navigable from the sea by vessels of ten or more tons burden, the case is of admiralty jurisdiction, and the written statement of it is denominated a Libel of information, from libellus, a little book: and when the seizure has been made on land, or on waters not so navigable, it is of common law, or as is frequently said, of exchequer jurisdiction, and the written statement of the case is called an Information.1

'See, ante, Part I, and The Betsey and Charlotte, 4 Cranch, 443; Whalen v. The United States, 7 Cranch, 112. This distinction is well established, and the terms by which it is expressed, as, so far as I am informed, they seem to have been invariably understood by the courts, leave little room for doubt or difficulty in their application. But in a late case in the district court of the northern district of New York, it was strenuously contended by the counsel for the claimant that the practical construction which they had uniformly received in that court was founded in error. As the subject is of considerable importance, I shall make no apology for inserting the following extract from the judgment pronounced in the case by the judge of that court; merely premising, that the proceeding was on the admiralty side of the court, against the steamboat Black Hawk and her appurtenances, for various alleged infractions of the navigation laws of the United States; and that the seizure was made at the port of Ogdensburgh, on the waters of the St. Lawrence: which waters were described in the libel, as being navigable from the sea by vessels of ten or more tons burden.

"A preliminary objection is taken that the waters of the St. Lawrence at the port of Ogdensburgh are not so navigable; and that this proceeding is, therefore, improperly instituted on the admiralty side of the court. It is not denied that the river St. Lawrence, throughout its entire course, is of sufficient depth to admit the passage of vessels of a burden far exceeding ten tons. But it is asserted, and as a geographical fact, is notorious, that at several places below Ogdensburgh, and at one, in particular, for several miles in extent, the velocity of the current is

In the northern district of New York (where reve- CHAP. 3. nue seizures are of very frequent occurrence), it is the established practice to file the libel or information and issue the proper process, at once, whether the court happens to be in session or not; and this so great that it cannot be overcome by ascending boats without the aid of extraordinary means of propulsion or traction. That neither sails, nor oars, nor even steam are sufficient for this purpose, but that it requires a resort to setting-poles, or drag-ropes. The forcing of vessels through water by such means, it is argued, is not navigation; and the quality of navigableness cannot, therefore, be truly predicated of waters which can be traversed only by such unusual, tardy and laborious processes.

"There is unquestionably force and plausibility in the argument.

"Another ground of doubt, whether this is a case of admiralty jurisdiction, was also suggested. The constitution of the United States declares that the judicial power of the United States shall extend to all cases of admiralty and maritime jurisdiction. But congress has no power to enlarge this jurisdiction beyond what was understood and intended by it when the constitution was adopted; for this would be to deprive the citizen of the right of trial by jury, secured to him by the constitution in suits at common law. It was upon this ground that in the case of The Vengeance (3 Dallas, 297), which arose not long after the adoption of the constitution, it was strenuously contended that congress had no authority to include seizures under the laws of impost navigation and trade, wherever made, within the admiralty jurisdiction of the district courts; because in England such cases were cognizable not in the high court of admiralty, but in the court of exchequer. But it was admitted that the colonial vice-admiralty courts, both in this country and in the West Indies, had always exercised jurisdiction over seizures of this nature; and the objection was overruled. It was also objected in that case, that it was not in fact the intention of congress to embrace such seizures within the admiralty jurisdiction; an objection to which the somewhat ambiguous phraseology of the ninth section of the judiciary act afforded considerable plausibility. But this objection was also overruled; and though the principles of this early case have several times since been called in question at the bar, it has been steadily adhered to by the supreme court.

"But the admiralty jurisdiction in England is limited to cases arising within the ebb and flow of tide; and that of the courts of the United States has been decided to be in general subject to the same limitation. Thus, for example, though the district courts as instance courts of admiralty, possess an unquestionable jurisdiction of suits for the reco