in England, an opinion has been expressed, that the 325 Court, in its range of large discretion, and by the very extended equity which it is in the habit of exercising, might, in a case of direct fraud or something equivalent to it, suffer a cause which had been once closed to be re-opened; but there must be strong reasons, and mere negligence or oversight would not be a sufficient ground for this extraor dinary interposition. A case occurred in the practice of the author of this work, where he would have made the experiment of a Libel of Review in the Admiralty, had it not been adjusted. The facts present a strong case of the necessity of such a proceeding. A mate libelled a ship for his wages in the District Court of Massachusetts. The owners, in defence, contended that two bales of cotton, part of the cargo, had been lost by his negligence, and that the value should be deducted from his wages. The Judge considered him accountable for one bale, and decreed him his wages deducting its value. Afterwards that bale was found in a store, where the cargo had been deposited. Upon these facts, it seems proper that the libellant should have a right to review the cause; for he was not bound to re- 326 ceive that bale of cotton as his property, which might have depreciated in value, or to bring an action at law for it, in which the judgment might never be satisfied. He had a lien upon the ship for the whole of his wages, which he was not bound to relinquish; and the only mode in which that lien could have been enforced, was by a Libel of Review in the Admiralty.*

1 The Fortitudo, 2 Dods. R. 70.

2 See The Malta, 2 Hagg. R. 168; Sheppard et al. v. Taylor et al., 5 Pet. Sup. Ct. R. 675; The Neptune, 1 Hagg. R. 227.

There are two cases in which a Bill of Review in Chancery may be brought; and they are settled in the Ordinances of Lord Chancellor Bacon, which have never since been departed from. Those Ordinances provide, that "no Bill of Review shall be admitted," except it contain either error in law, appearing in the body of the decree, without further examination of matters in fact, or some new matter which hath arisen in time after the decree, and not any new proof which might have been used when the decree was made; nevertheless, upon new proof, that is come to light after the

decree was made, which could not possibly have been 327 used at the time when the decree passed, a Bill of Review may be grounded by the special license of the Court, and not otherwise.1

1 Cooper's Plead. in Equity, 89.

(a) On this subject, Judge Story remarks, "If the District Court has a right to entertain a Libel of Review in any case, it must be limited to very special cases; and either where no appeal by law lies, because the matter is less in value than is required by law to justify an appeal, or the proper time for any appeal has passed, and the decree remains unexecuted; or where there is clear error in matter at law; or if not, where the decree has been obtained by fraud; or where new facts, changing the entire merits, have been discovered since the decree was passed, and there has been not only the highest good faith, but also the highest diligence and an entire absence of just imputations of negligence; and finally, where the principles of justice and equity require such an interference, to prevent a manifest wrong."-The Steamboat New England, 3 Sumner R. 505.

The High Court of Admiralty in England has power to vary its own decrees. Such variation should be confined to an alteration of an error arising from a defect of knowledge or information upon a particular point in the case, and the error must be brought to the attention of the Court with the utmost possible diligence.-The Monarch, 1 Wm. Robinson R. 21.

A PROVISION is made, in the laws of the United States, for the remission of forfeitures in certain cases. The Act of Congress in relation to this subject, declares as follows:

"That, whenever any person or persons, who shall have incurred any fine, penalty, forfeiture, or disability, or shall have been interested in any vessel, goods, wares, or merchandise, which shall have been subject to any seizure, forfeiture, or disability, by force of any present or future law of the United States for the laying, levying, or collecting any duties or taxes, or by force of any present or future act concerning the registering or recording of ships or vessels, or any act concerning the enrolling and licensing ships or vessels employed in the coasting trade or fisheries, and for regulating the same, shall prefer his petition to the Judge of the District in which such fine, penalty, forfeiture, or disability shall have accrued, truly and particularly setting forth the circumstances of his case, and shall pray that the same be mitigated or remitted, the said Judge shall inquire, in a 329 summary manner, into the circumstances of the case; first causing reasonable notice to be given to the person or persons claiming such fine, penalty, or forfeiture, and to the Attorney of the United States for such District, that each may have an opportunity of showing cause against the mitigation or remission thereof; and shall cause the facts

which shall appear upon such inquiry, to be stated and annexed to the petition, and direct their transmission to the Secretary of the Treasury of the United States; who shall thereupon have power to mitigate or remit such fine, forfeiture, or penalty, or remove such disability, or any part thereof, if, in his opinion, the same shall have been incurred without wilful negligence, or any intention of fraud, in the person or persons incurring the same; and to direct the prosecution, if any shall have been instituted for the recovery thereof, to cease and be discontinued, upon such terms or conditions as he may deem reasonable and just.

"That the Judicial Courts of the several States, to whom, by any of the said acts, a jurisdiction is given, shall and may exercise all and every power, in the cases cognizable

before them, for the purpose of obtaining a mitigation 330 or remission of any fine, penalty, or forfeiture, which may be exercised by the Judges of the District Courts

in cases depending before them.

"That nothing herein contained shall be construed to affect the right or claim of any person to that part of any fine, penalty, or forfeiture incurred by the breach of any of the laws aforesaid, which such person shall or may be entitled to by virtue of the said laws, in cases where a prosecution has been commenced, or information has been given, before the passing of this act, or any other act relative to the mitigation or remission of such fines, penalties, or forfeitures; the amount of which right and claim shall be assessed and valued by the proper Judge, or Court, in a summary manner.”

1 Act of Cong. 1797, ch. 67.

Upon this Act of Congress, there have been several decisions in the Courts of the United States.

The Secretary of the Treasury has authority to remit a forfeiture both before and after condemnation, until the money is actually paid over to the Collector, who instituted the prosecution, for distribution. The remission extends to the shares of the Custom House officers and 331 informer, as well as to the interest of the United States in the forfeiture. But the Secretary of the Treasury has no power to remit forfeitures, except in cases provided for by law. Under the Act of Congress on this subject, the District Judge is required, upon a petition for a remission of a forfeiture, to state, in his report of the facts to the Secretary of the Treasury, not the evidence of the facts, but the facts which he considers to be proved; and in making his statements, he acts judicially, and the proof must be by competent and credible testimony. A statement by the District Judge, merely that the claimant deposed to the facts, is not legal proof. It is not competent for any other tribunal collaterally to call in question the competency of the evidence, or its sufficiency to procure the remission. The Secretary of the Treasury is, by law, the sole Judge upon these facts, and there is no appeal from his decision; and, when the statement of the facts is received by him from the District Judge, he has the power to remit the forfeiture, if, in his opinion, it has been incurred without wilful negli- 332 gence or any intention of fraud." The refusal of the

1 U. States v. Morris. 10 Wheat. R. 246; Id., 1 Paine R. 209. 3 The Margaretta, 2 Gall. R. 515.

4 Ibid.

6 U. States v. Morris, 10 Wheat. R. 283.

5. Ibid.

2 Ibid.