in his Treatise,

are imposed for omitting to do some act enjoined by law." Taking a false oath to procure the registry of a vessel, was made ground for the forfeiture of the vessel by statute, and the Supreme Court held that the actio in rem against the vessel would lie. By the transferring of any licensed vessel, even in part, to any person not a resident citizen of the United States, the whole vessel was forfeited; 4 and though by reason of such transfer the license eo instanti became void, yet the act of transferring gave sufficient basis for the action against the vessel. This right of action seems the more slight when we reflect that the owner who made the transfer was not the owner when the forfeiture was declared, for such transfer was not itself void. The transferee, however, was personally as much to blame as the seller. And, to narrow this ground of action to the smallest compass, we may add that such forbidden transfer did not even have the effect to change the American character of the vessel.7

The forfeiture of goods for the negative offense of the master, (not necessarily the owner,) of the vessel conveying them-neglect to deliver the manifest within a specified time, under the same act, and the forfeiture of the vessel, too, in case such goods should amount to eight hundred dollars," would seem to be almost an extreme exercise of the legislative power in the use of the action in rem; but it seems to have called forth no strictures on the part of the Supreme Court. 10 Many such provisions abound in our revenue laws, which have been unhesitatingly sustained by the courts.

$35. The Right without the Remedy. While there can be no action in rem without the corresponding right, the converse does not always hold good. There may be an existing right to or in a thing, yet no legal authorization to enforce such right t

by action direct against that thing. It is necessary that the action be authorized by statute, except where there is general authorization, as in admiralty law. Many States create liens by statute, or allow their creation by contract, and yet do not authorize their consummation by proceedings in rem, good against the world, without personal citation beyond the general, published notice. All the liens under the laws of Congress are not enforcible by such proceedings, though those in favor of the government usually are. There are exceptions, however, with regard to the latter, for many contraventions of law, by the wrongful use of property, give rise to personal actions only; though it is true, in many of these, no lien upon the wrongfully used thing is created. While the government has the jus in re with regard to all enemy property, it may exercise the corresponding remedy, the actio in rem, only against enemy property captured as prize; enemy property used, bought, sold or given for insurrectionary purposes; enemy property transported, etc., to or from insurrectionary districts, and enemy property classified as belonging to certain descriptions of

enemies.

It has twice been judicially said that cotton belonging to insurrectionists in the late civil war, was confiscable by proceedings in rem, because of the nature of the property in its being conducive to the support of the enemy, when it did not belong to any of that classification of enemies whose property the courts were authorized to proceed against, nor had been transported in contravention of the non-intercourse act, nor used for insurrectionary purposes, nor lawfully captured as prize. Being enemy property, it was doubtless subject to the jus in re vested in the government by the law of nations; but certainly that right could not be enforced by proceedings directed against such cotton, since Congress had not authorized such remedy in such case. Here is an illustration of the existence of the jus in re without the corresponding actio in rem.

On the other hand, Congress has sometimes made the mistake of authorizing the action in the absence of the right. Rather,

1 Post, Chap. XXXV.

one should say, attempting to authorize: for no statute can constitutionally give such authority. As an instance, there may be cited the forfeiture prescribed against tracts of land without specified limit, because a small portion may have been used for illicit purposes: the forfeiture to be ascertained by proceedings in rem: which is found in the internal revenue laws. There will be occasion, hereafter, to test other statutes authorizing the proceeding, by the touchstone, "Is there any jus in re or ad rem?"

Tested by this simple question, many tax forfeitures will be found to have been declared without warrant, since the right of the state is merely ad rem; and whenever courts have held, (as they sometimes have,) that an action against enemy property is against an offending thing, they must have lost sight of the fact that nothing can be such unless it be the instrument of the offense; and therefore confiscated lands would be condemned without any right in re at all, if proceeded against as guilty or offerding property. Sufficient reason for the enunciation of the elementary principles of this chapter will be apparent upon examination of many forfeitures under the revenue, collection and navigation laws; and of many proceedings under state

statutes.

1 Post, Chap. XVII.

which the action operates must be a thing, distinct in idea from the person owning it. It must be a distinct thing susceptible of seizure and condemnation; but, as this distinct thing may be intangible, it may be susceptible of only constructive seizure. It may be of such a character that it cannot be taken into possession by the seizing power, except in such artificial way as the law recognizes to be a seizing, taking and keeping. Debts, obligations, various intangible rights, are such things as cannot be bodily seized and held; but they are susceptible of legal seizure, and may be proceeded against in

rem.

The most common things operated upon by this form of action are vessels and merchandise, under the municipal law and admiralty. Vessels, are usually described by name, to which may be, (and, if known, should be,) added the name of the owner, the number of tons-burden, and such other facts as may serve to make the description the more intelligible. It is common to add, in description of a vessel, "her tackle, apparel and furniture," though these form a part of the vessel, and would be included without the express addition. It is a venerable, old admiralty form, however, and might, in some cases, be found useful; as, for instance, a question might be raised with regard to furniture-whether it is a part of the ship? And even the sails and rigging, all the apparel, might be separate

from the hull of the vessel at the time of seizure, as would probably be the fact in case of the seizure of yachts, fishing smacks, etc.

Whether the action is against one thing, or one thing including one or more subordinate or auxiliary things, all understood as appertaining to the principal thing; or against two or several things; whether against corporeal or incorporeal things, there should be certainty as to the thing or things seized and held; since, manifestly, if the res should be wanting, there could be no action, the proceedings being not against any personal defendant.1

The title of any cause, whether against a person or a thing, is a mere matter of convenience, and is no criterion by which to judge of the character of a cause. A case may be without

any title at all. 2

It is true that courts have sometimes alluded to the title of a case as indicating its character, but the title is no criterion by which to judge when the nature of the action is in dispute. While the want of proper averments in pleading cannot be supplied or eked out by the mere name given to the suit, the presence of proper averments cannot be avoided by a misnomer endorsed upon the papers. Indeed, the baptismal designation is often the work of the clerk of court; and, whether so or not, it forms no part of the pleading, and is not to be considered at all in ascertaining the nature of the thing which bears the

name.

$37. Presence in Court Actual or Constructive. The action would cease at any moment should the res disappear. Smuggled liquors might evaporate between the time of their seizure and the time for condemnation or restoration: in such case the proceedings would be at an end for the want of a de

1U. S. r. 84 Boxes of Sugar, 7 Pet. 8 Cr. 398; Pipes of Distilled Spirits, 453; 200 Chests of Tea, 9 Wh. 430; McIlvaine . Coxe's Lessee, 4 Cr. 209; Barancoat et al. v. Gunpowder, 1 Met. 230; Markle v. Akron, 14 Ohio, 590, 591; The Palmyra, 12 Wh. 12, 13, 15; U. S. v. Bags of Coffee,

5 Sawyer, 421; The Whisky Cases, 99 U. S. 594; Dobbins' Distillery, 96 U. S. 395; Three Tons of Coal, 6 Bissell, 379; The Confiscation Cases, 20 Wall. 101, 105.

2 Anonymous Case, 1 Gal. 23