consisting of sixty articles, embrace bottomry, etc., but treat most largely of mariners' rights, duties, etc.

The Marine Ordinances of France, (or of Louis XIV.) A. D. 1681, constitute a maritime code, consisting of three books, divided into titles and subdivided into articles. After the subjects of captain, master, patron, (coasting captain,) mate, seaman, owners and vessels have been treated generally in the second book, there is, in the third, a separate title, (embracing several articles,) on each of the following subjects: Charter parties and freighting ships, bills of lading, freight, seamen's wages, bottomry, insurance, averages, ejections and contributions, prizes, letters of marque and reprisal. The last two titles are omitted from one of the versions of these ordinances.

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The Sea Laws contain "A Treatise on the Rights and Duties of Owners, Freighters and Masters of Ships and of Mariners," consisting of "Three short Discourses * being a collection of what is most material upon these subjects in the treatise De Jure Maritimo et Navali, and several others, with some alterations and reflections." (The Sea Laws, p. 442 et seq.)

All of these laws and codes had reference to property as indebted; the ship's bottom was trusted for repairs, supplies, etc., though the owner was unknown; vessels and cargoes were held primarily responsible in all marine contracts; goods saved were indebted for the service rendered in saving them, etc. Indeed, the maritime law of the present day is but the outgrowth and enlargement of the system prevailing when those venerable laws were codified, and which had been in use, for the most part, for centuries before.

§ 19. Utility and Convenience of the Fiction. Things indebted are clearly distinguished from the other two classes of property primarily liable by fiction of law, in this important particular: their liability always arises from contract express or implied, and the operation of law thereon.

There are three classes of persons whose property, under certain circumstances, may be proceeded against in rem: Offenders, enemies, and delinquents. The character of the owner is, in each case, attributed to his property, though not to all his property, except the second class of owners mentioned. As before

shown, the property of the first must have been wrongfully used; and that of the third, subjected to a lien or pledge.

No injury nor hardship need follow the seizure of their property without a personal action against the owners themselves, since the general notice to the public supplies the want of personal citation. It is a presumption of law that every owner knows his own property and also knows what use is made of it and what obligations rest upon it by his character or acts, or his expressed or implied contracts; and he, (if not an enemy,) is privileged to appear, claim his property and defend for it against the charges.

It will be readily perceived that in a great proportion of causes in rem, there would be no means of making a personal citation upon the owner of the res. To illustrate: it is almost always impossible to know who is the owner of smuggled goods, though the fact of the goods having been smuggled may be easily proved; the sailor, suing for wages, finds it impracticable to get service upon the owner of the ship upon which the lien for wages rests, though he can readily reach the ship itself; the government, having the rights of war against confiscable property, (prize or other,) cannot serve process upon the hostile owner within the enemy's lines, though there is no difficulty in proceeding against hostile property seized or captured.

§ 20. Proceedings in rem used as Synonymous with Action in rem. A proceeding in rem is an action in rem. The terms are interchangable, as used throughout this treatise. Whenever, elsewhere, the first mentioned term is used to express some procedure other than an action against a thing, there is usually found ambiguity as the result, often followed by erroneous conclusions.

Action against a thing requires no more definition than action against a person requires. Every action must necessarily be either against a person or against property. The two forms of action exhaust the list. There is no middle ground, though there are actions against things with but limited notice.

The action in rem is distinguished from that against a person in its vindication of a pre-existing right in or to property primarily liable, by the seizure and prosecution of such property, without any suit against its owner.

§ 21. Not for Punishment of Offenders. Proceedings in res are always civil cases. They are never, in any sense, governed by rules peculiar to criminal jurisprudence. This is as emphatically true of things presumed to be guilty by reason of the wrongful acts or omissions of offenders as it is of things presumed to be hostile on account of enemy ownership, and of things presumed to be indebted in consequence of the delinquency of the personal debtor. They frequently grow out of

some misdemeanor, offense, or even crime, yet they maintain their civil character: no indictment of the offender in such cases, nor trial and conviction by a jury, is necessary. The case proceeds without reference to any criminal proceedings that may be at the same time progressing before the same or another tribunal against the culprit; without reference to the entire absence of ownership, should the property have been abandoned; without reference to the fact that the offender may have been already punished for the very act that caused the forfeiture of the property proceeded against. The smuggler, convicted and punished for his crime, cannot plead his conviction in bar of the civil action in rem to declare the forfeiture of the goods smuggled. He is not, in the eye of the law and of the constitution, thus twice punished for the same offense, for the action, to fix the status of the goods, is not against him.

The provisions of the constitution of the United States, inhibiting the subjection of any person twice for the same offense, to be put in jeopardy of life and limb,1 is not applicable to proceedings in rem for forfeiture and criminal prosecution to punish the offender, though the two actions be carried on at the same time, and be based on the same offense. Neither the letter nor the spirit of this constitutional provision is violated by the simultaneous prosecution of the two trials. Had the provision been extended so as to include property after "life and limb," there would even then have been no inhibition of the actio in rem, although the offense, lying at the base of the action, might have been already punished by personal, criminal action.

The requirement, that "The trial of all crimes, except cases of impeachment, shall be by jury," has no reference whatever to the action for the forfeiture of a thing with which even a criminal offense has been committed. Such a case need not necessarily be tried by a jury, for it is not a "trial of a crime." Where, in a case of the kind, a jury trial is had, it is not by virtue of the requirement above quoted, but of rules of law governing civil cases.

1 Fifth Amendment of the Constitution.

2 Constitution, Art. III., Sec. 2, par

3.

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Actions Against Things are "Due Process of Law." In this connection it may be well to advert to the clause of the constitution which provides, that "no person shall be deprived of * *

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property without due process of law."1 Does "due process of law" mean indictment and trial by jury? Doubtless it does, so far as life and liberty are concerned.

It has been learnedly contended that the phrase "due process of law," as here used, is synonymous with "the law of the land," as used in the Bill of Rights; and that these words in the bill signify indictment and trial by jury. Lord Coke says that the words by "the law of the land," as originally used in Magna Charta, mean, in their true sense and exposition, "by indictment or presentment of good and lawful men." The barons, when wresting from King John this formal acknowledgment of their rights, had in view the abrogation of arbitrary arrests, imprisonments and executions; and this needed concession from the crown, which was first known as Magna Charta de Libertatibus, was meant to protect every Englishman in the free enjoyment of his life, liberty and property until declared forfeited by the judgment of his peers and the "law of the land."3

Now, conceding that the phrases "the law of the land" and "due process of law" are convertible, is there any inhibition of the civil forfeiture of the property of an offender who has been criminally convicted and punished for the offense; any inhibition of such forfeiture without the indictment of the offender for the offense, and trial by a jury of his peers; any such inhibition, either by Magna Charta or the Constitution of the United States? Did the barons exact from their king, (or did the framers of our constitution design,) any such inhibition? Did Lord Coke have in mind the common methods of procedure in the English Court of Exchequer for property forfeiture when he wrote what is here cited from his Institutes? Evidently the matter in consideration by them all was some

1 Fifth Amendment of the Constitution.

2 Coke's Inst. II., 50, 51; II Kent's Com., xxiv., p. 13, marg.

3 Magna Charta, 29 Chap., 9 Hen. 3; Bouvier's Law Dic., verbo, Magna Charta; I Reeve's Hist. English Law 209, 231.