Mr. DANA. It is also prohibited to sue.

Mr. THOMSON. Well, they may be virtually prohibited from suing at all, but I do not think that the act says so. I am, however, quite will ing to admit that this clause is just as bad as a clause prohibiting from suing at all, because, as the party cannot recover damages or costs on such certificate being given, it practically prevents him from suing at all. I am quite satisfied, however, that he could not get the question before a court, unless he had the right to sue.

Mr. DANA. Í believe that you are right about that. This is decided by the court of first instance. The court tries the question of seizure, and gives the certificate.

Mr. THOMSON. That is it, and it certainly practically prevents suing at all; otherwise a person acting in the discharge of his duty would not be for a moment safe from annoyance. The moment the judge grants a certificate stating that there was reasonable and probable cause for the seizure, no suit can be further maintained.

Mr. FOSTER. Where there is probable cause for seizure, he cannot bring any action to recover any costs, nor any damages. What I would like to call your attention to is this: I think that you will be unable to find any statute of Great Britain or of the United States where this seizure by an executive officer is made prima-facie evidence of the liability to forfeiture.

Mr. THOMSON. Well, we will see about that before I get through. Mr. DANA. The owner is not a party to that suit in which such certificate is given.

Mr. THOMSON. It is a proceeding in rem, and the owner is clearly a party to it. I may explain to your excellency and honors who are not lawyers, that the proceeding in rem is one directly against the property, and not against the person of the owner. He gets formal notice of the libel filed by the serving-officer, and has the right to appear and defend. If he does not, his property will probably be condemned. I say, therefore, that it is idle to assert that he is no party to the suit. Should he elect to bring a suit against the seizing-officer, he is of course the party plaintiff.

Mr. Dana and Mr. Foster have both pointed to the bond for costs required to be given by a claimant of property seized, and characterize the law requiring it to be given as oppressive and unjust. Let us see why this bond is required.

The proceeding in rem, as I have already stated, is not against the owner of the goods personally, but against his property. If he chooses to contest the legality of the seizure by resisting a condemnation, he ought to be made liable for costs in case of failure. But he cannot be made so liable unless he gives his bond to that effect. Where is the oppression or the injustice of this rule? Without it, the government would be forced to contest at its own expense every seizure made by its officers.

I am surprised at this objection to our law being raised by legal men, and your excellency and your honors will no doubt be surprised when I assure you that the law of the United States on this subject is similar to our own, as I shall proceed to show, to the entire satisfaction, or dissatisfaction, of my learned friends on the other side.

I will now read from the Revised Statutes of the United States, at page 171, section 909:

In suits on information brought where any seizure is made pursuant to any act providing for or regulating the collection of duties on imports or tonnage, if the property is claimed by any person, the burden of proof shall lie upon such claimant.

Here is the United States statute, and I am surprised, I must confess, at United States lawyers making any charge against British legislation when their legislation on the same subject is in nowise different. The clause thus concludes:

Provided that probable cause is shown for such prosecution, to be judged of by the court. There is no difference whatever between our law and theirs on this subject.

Then again, on page 182 of the same volume, section 970, it says this: When, in any prosecution commenced on account of the seizure of any vessel, goods, wares, or merchandise, made by any collector or other officer under any act of Congress authorizing such seizure, judgment is rendered for the claimant, but appears to the court that there was reasonable cause of seizure, the court shall cause a proper certificate thereof to be entered, and the claimant shall not in such case be entitled to costs, nor shall the person who made the seizure, nor the prosecutor, be liable to suit or judgment on account of such suit or prosecution; provided, that the vessel, goods, wares, or merchandise be, after judgment, forthwith returned to such claimant or his agent.

This clearly proves what is done in case the seizing-officer is in the wrong, and when consequently the property seized has to be restored, and it that enactment is not on all fours with ours I do not know what

is.

Mr. FOSTER. There is no such provision for the return of the property in your act.

Mr. THOMSON. I am really surprised at Judge Foster saying so. What is the result of a proceeding in rem? Can there be any doubt about it at all? It must result in a judgment one way or the other. There are only two judgments possible in a proceeding in rem-judgment of condemnation or judgment of acquittal, which restores the property at once, while it is transferred to the government in case of condemnation. I have not time to look for the matter in this immense volume, but I have here another book which shows that a bond must be given in these cases in the United States as well as here. I think that the United States look after their interests about as well as any other nation; and I believe that in the volume which I now hold in my hand it will be found that a bond has to be given. This volume contains the customs regulations of 1874, and epitomes of the different acts, as I presume, for the guidance of the customs officers. In article 842, page 397, it says that "seizures may be made by any private person, but at the peril of responsibility in damages in case the seizure is not adopted by the government." Well, this is a most extraordinary law, and it altogether eclipses the English or our law on the subject.

In case the act is adopted by the government such person is secure from action, or, in other words, any American citizen who chooses to make a raid against any person who has committed any infraction of the customs, or other laws of the country, can do so, and the latter cannot bring an action against him if the government chooses to adopt his case. It is further stated on page 398:

From that danger officers of customs are protected by law in all cases where reasonable cause of seizure shall appear.

It is immaterial who makes the seizure, or whether it was irregularly made or not, if the adjudication is for a sufficient cause.

On page 402, article 859, it is stated, and there is cited in the margin an act of July 18, 1866; so you see that this "inhospitable legislation" is of very recent date:

Any person claiming the property so seized, or any part thereof, may, within the time specified, file with the collector a claim, stating his or her interest in the articles seized, and deposit with such collector, or other officer, a bond to the United States in the penal sum of

two hundred and fifty ($250) dollars with two sureties, to be approved by such collector, conditioned that in case of the condemnation of the articles so claimed, the obligors shall pay all the costs and expenses of the proceedings to obtain such condemnation.

And article 800 says:

But if no such claim shall be filed nor bond given within the time specified, such collector shall give not less than fifteen days' notice of sale of the property so seized by publication in the manner before mentioned, and at the time and place specified in such notice he shall sell at public auction the property so seized, but may adjourn such sale from time to time for a period not exceeding thirty days in all.

Now, I think that I have conclusively shown for the benefit of my learned friends opposite that had they looked at the "inhospitable laws" of their own country, they would have hesitated before making the attack which has been directed against ours. I said last night that it would be my duty to point out to you some extraordinary discrepancies which are to be found between the two sets of affidavits which have been filed by the United States; and the pledge which I then gave I shall now proceed to redeem. I shall be glad indeed-I say it in all sincerity-if my learned friends opposite can, as I am pointing out these discrepancies, get up and say that I am mistaken, and show me how they can be reconciled, for I am desirous of not making one single statement which is not borne out by the facts. If, therefore, the learned Agent of the United States, or either of the learned counsel who are associated with him, can say that I am wrong before I get through, I shall be quite willing to permit them to interrupt me and point out my error. I will then at once withdraw my statements, and apologize, if necessary, for having made them; but at present I cannot see how they can be explained at all.

In order that I may be understood on this point, I think that it would be advisable that your excellency and your honors should have before you the two statements, Appendix M and appendix O. Appendix M contains the set of affidavits which was first filed by the United States, and Appendix O contains the later body of affidavits which they filed in this case.

Now, in Appendix O, you will find-toward the middle of the booka set of statements which purport to have been taken from the books of Gloucester firms; they were produced by Mr. Babson, and filed by Mr. Foster, on October 24, 1877.

Now, I take the finished statement made by David Low and Company, and this David Low is the Major Low who made such a pleasant figure before the Commission.

Mr. FOSTER. He is an entirely different person, Mr. Thomson.
Mr. THOMSON. Are you sure about that? I think not.

Now, if you look at page 110, Appendix M, you will find affidavit, No. 70, made by the firm of David Low & Company. They state that the number of trips made to the Bay of St. Lawrence in 1872 was five, and that the number of barrels of mackerel taken was 1,250. In 1873 they say that there were five trips made, and that the number of barrels of mackerel caught was 750. In 1874 they swear that two trips were made, and that 440 barrels were taken. In 1875 they say only one trip was made, and 200 barrels caught, while in 1876 no trip was made at all.

Now, let me turn your attention to the statements filed concerning the years 1872, 1873, and 1874 for this firm in the second set of affidavits contained in Appendix O. What do they here say for 1872! David Low and Company have been pleased to declare here that in 1872 they had 3 vessels in the bay, and took 460 barrels of mackerel. In 1873 they had 8 vessels, which took 1,944 barrels. In 1874, 4 vessels, which took

1,328 barrels. In 1875, 1 vessel, which took 205 barrels, showing a dis crepancy between the two affidavits of 1,297 barrels. I regret to say that this is no solitary instance, as you will see if you will kindly follow me while I state the result of these conflicting depositions.

I objected, as your excellency and your honors recollect, at the very outset, on behalf of Her Majesty's Government, against the system of putting in these affidavits at all. I have no faith in them-no, not the slightest. I wanted the matter to be tried by living witnesses who should go on the stand there, tell their story, and be cross-examined, and then if they came out of the ordeal of cross-examination untouched and unscathed, their evidence would be entitled to weight; but these men can sit down and make up what statements they like; they have not to submit to any cross-examination. No eye can see what they are about except the eye of the Almighty.

Now, I have shown by the figures which appear in the affidavit, No. 70, and the statement in Appendix O, that a discrepancy of 1,297 barrels exists between these statements, the latter of which was filed by Mr. Foster in October last, only last month; and I say that these figures cannot be reconciled in any way-or, at least, if this can be done, I will be very glad to hear it.

Mr. FOSTER. You know all that is to be said about that is this, the last statement is more favorable to you than the first one; and it was prepared with great care.

Mr. THOMSON. It is an extraordinary fact that both of these statements were produced from the books of David Low & Co., and I can only say that when persons file two statements, one of which is diamet rically opposed to the other, that it is very little to the credit of the person who filed them to say that the last statement is more favorable to the persons they were intended to injure than the first. Mr. TRESCOT. There was no intention to injure.

Mr. THOMSON. If a statement was put forward with a view of making a correction it would be another matter, but this is not the case, and the next one to which I will call your attention is to be found in letter L, Appendix O, affidavit No. 75, both made by same parties, which says that the number of trips which were made by the vessels of John F. Wonson & Co. in the Bay of St. Lawrence, in 1872, was three, in which trips they got 500 barrels, while in this statement in Appendix O they say that in 1872 they took in the Bay of St. Lawrence 475 barrels, showing a discrepancy of 25 barrels. You may say this is a small number, but recollect it is said that these two statements were taken from the books of the firm; and these are the books which we were asked to go to Gloucester and examine, and this matter I beg to call to the attention of your excellency and your honors.

In 1873, they say, in this affidavit, that two trips were made and 450 barrels of mackerel taken, while in this statement, Appendix O, they say that in 1873 four trips were made and 980 barrels taken.

In 1874, according to affidavit No. 75, they say that 510 barrels of mackerel were taken in two trips; and in the statement, Appendix O, they say that three trips were made and 620 barrels taken.

In 1875, they say, in the affidavit No. 75, that one trip was made, and 120 barrels taken; and in 1875, according to the statement contained in Appendix O, two trips were made, with a catch of 203 barrels; or, in other words, there exists a discrepancy of 698 barrels between these two statements. One or the other of them must be untrue.

Mr. FOSTER. That gives the same result; the latter statement was more carefully prepared and is more favorable to you than the former.

Mr. THOMSON. You will find that some of these statements are just the other way, so that argument will not help you. My object is not to show which set of affidavits is more adverse or more favorable to the United States, or which is more favorable to Canada or England; but it is to show that these statements cannot be relied upon. They have been put in here for a purpose, but what that purpose is, of course I do not know.

I will now pass on and examine the next statement to which I propose to call your attention. If you look at the statement which appears on the next page of Appendix O, and the corresponding affidavit, which is No. 54, you will see that it is stated in the latter, over the signature of Samuel Haskell, that in 1872 four trips were made into the Bay of St. Lawrence, and 1,100 barrels of mackerel taken; while in the statement contained in Appendix O it is represented that they got none at all in the Bay of St. Lawrence.

This is an instance where the idea which Mr. Foster has mentioned is reversed.

In 1873, it is stated in the affidavit No. 54 that two trips were made and 420 barrels of mackerel taken; and in 1873, they are pleased to say in the statement, Appendix O, that four trips were made in the bay and 672 barrels taken. Here the catch of 672 barrels is admitted, while in the other affidavit that catch is represented as having been 420 barrels. In 1874, they say in affidavit No. 54 that they took 383 barrels in the Bay of St. Lawrence, while they admit in the last statement, Appendix O, that the catch in the bay that year was 720 barrels, taken in two trips. In 1875, they say, none were taken, and in 1876, also none. Now there is a discrepancy of 911 barrels between these two statements, which are utterly irreconcilable.

If you will now pass over to Appendix O, letter R, to the statement of Dennis and Ayer-the corresponding affidavit is No. 59-you will find that Dennis and Ayer say that "since the Washington Treaty, so called, has been in effect, our vessels have been employed as follows:" Since 1871, they state that they made six trips in the Bay of St. Lawrence and caught 1,800 barrels of mackerel, while in 1871, according to this statement, Appendix O, they took 2,585 barrels of mackerel in the Bay of St. Lawrence. In 1872, they say in this statement, Appendix O, that the catch in the Bay of St. Lawrence was 2,287 barrels; in 1873, 2,504 barrels; in 1874, 2,455 barrels; in 1875, 116 barrels; and in 1876, 136 barrels; contrasted with the catch of 1,800 barrels according to affidavit No. 59. If the figures are rightly given, your honors will see that for that period their catch was 10,083 barrels; that is to say, they caught in the Bay of St. Lawrence 10,083 barrels of mackerel according to this statement which was filed last October, while they swear in their affidavit No. 59 that this catch amounted to 1,800 barrels.

Mr. TRESCOT. This number was put in for six trips.

Mr. THOMSON. O, no. If you look at the head of the affidavit you will observe it is stated that

Since the Washington Treaty, so called, has been in effect, our vessels have been employed as follows.

And again they swear to having made six trips during that time.
Mr. TRESCOT. During which they got 1,800 barrels.

Mr. THOMSON. But it turns out that they made a great many more trips during this period, and caught 10,083 barrels of mackerel.

Mr. TRESCOT. They are only credited with having made six trips. Mr. THOMSON. Then Mr. Trescot wishes your excellency and your