General Principles. American Fur Company v. The United States, 2 | his lands, and to convey to the purchaser a comPeters, 368. 9. A forfeiture is not purged by a purchase made under a full knowledge of the facts inducing such forfeiture; or such facts as were sufficient to put the party on the inquiry. The Ploughboy, 1 Gallis. C. C. R. 41. plete and legal, though defeasible, seisin; and unless such conviction follow the offence, the alienation is good against all the world. Ibid. 19. The same doctrine is also in general true as to the like forfeitures of goods and chattels. Nor do the cases of deodand and suicide form any exceptions, for the forfeiture does not vest a property, until the fact is found of record. Ibid. 20. For all purposes of alienation and sale, therefore, the property in goods and chattels remains in the owner, notwithstanding the commission of an offence, subjecting it to forfeiture; and consequently he may convey a good title, against everybody but the crown; and against the crown also, unless in cases where the ante 21. At common law, in cases of attainder for 10. A penal statute takes effect from its pas-rior relation applies. Ibid. sage, where no other time is fixed; and ignorance of its existence is no legal excuse for its viola-treason or felony, the forfeiture of lands relates tion. The Ann, 1 Gallis. C. C. R. 62. 11. Where the claimants set up a special defence against a forfeiture, the onus probandi lies on them; and if such defence be not satisfactoily made out, condemnation will go. The Short Staple, 1 Gallis. C. C. R. 104. 12. A bona fide purchaser, without notice, is protected against an antecedent forfeiture to the United States. The Mars, 1 Gallis. C. C. R. 192. 13. Property forfeited under a municipal law, but captured in a trade with the enemy, was condemned to the captors; and the claim of the United States was rejected. The Rapid, 1 Gallis. C. C. R. 295. 14. The rule that penal statutes are to be construed strictly, means that they ought not to be extended by their spirit or equity to other offences than those which are clearly described and provided for. But courts are not prevented, by this rule, from inquiring into the intention of the legislature. The Schooner Enterprise, Paine's C. C. R. 32. 15. Where there is such an ambiguity in a penal statute, as to leave reasonable doubts of its meaning, it is the duty of a court not to inflict the penalty. Ibid. 16. The collection law is adapted to a regular and usual course of business; and extraordinary cases, where a compliance with its letter is impracticable, do not come within its sense and meaning. 651 Chests of Tea v. The United States, Paine's C. C. R. 499. 17. The property of an owner may, in many cases, be forfeited for an offence committed without his knowledge or procurement. Cross v. The United States, 1 Gallis. C. C. R. 26. 18. In all cases at common law, where lands are forfeited for the personal offence of the party, no title vests in the sovereign, until the offence is ascertained by conviction and attainder. Before that time the party is entitled to the possession and profits of his lands, and the government has no vested right, either to enter or dispose of the estate. Even after attainder, until office found, the sovereign is considered as having but a possession in law, and an office is necessary to complete the title. The offender, therefore, has, until conviction, full power and authority to alien back to the time of the offence committed, so as to avoid all intermediate charges and conveyances; but in general, in like cases, the forfeiture of goods and chattels relates back only to the time of conviction, so that all previous charges and alienations, and even bona fide gifts, are protected. lbid. 22. There are some cases in which the relation is carried back to the time of the inquisition made; but unless that of suicide form an exception, there is no case where the relation is pressed beyond the time of the prosecution. Ibid. 23. There are authorities to show, that in case of flight for felony, the forfeiture, after it is found by inquisition, verdict or indictment, relates back to the time of the flight so as to avoid all mesne acts; but the better opinion, notwithstanding, is, that it relates only to the time of finding the flight. Ibid. 24. A forfeiture attached to a thing, conveys no property to the government in the thing, until seizure made or suit brought. Previous to that time, the owner has the exclusive right of possession and property, though the government may be considered as having an inchoate title or possibility. As against the offender, or his representatives, upon seizure or suit, the title, by operation of law, relates back to the time of the offence, so as to avoid all mesne acts; but as to a bona fide purchaser, for a valuable consideration, and without notice of the offence, the doctrine of relation does not apply, so as to divest his legitimate title. Ibid. 25. As it regards trade, laws, unless previous notice of them be brought home to the party charged with the violating their penal provisions, are to be considered as beginning to operate in the respective collection districts only from the time they are received from the proper department by the collector. The Schooner Enterprise, Paine's C. C. R. 32. 26. The court, in considering a question of for feiture, disregards a refusal of the secretary of the treasury to remit the penalty. Ibid. 27. In general, the party claiming a forfeiture or penalty is bound to make out his case pre cisely; nor is it a necessary exception that it ir volves the proof of a negative allegation: for Forfeitures under the Acts of Congress, relating to the Registry of Ships and Vessels. the law presumes the affirmative, the party may | law had expired. The court reversing the sen still be put to the proof of a negative. United tence, will not order the money to be repaid, but States v. Hayward, 2 Gallis. C. C. R. 485. will award restitution of the property, as if no sale had been made The Schooner Rachel v. The United States, 6 Cranch, 329; 2 Cond. Rep. 388. 38. Upon a piratical capture, the property of the original owners cannot be forfeited for the misconduct of the captors in violating the municipal laws of the country where the captors have carried the property. But where the capture is made by a regularly commissioned captor, he acquires a title to the captured property which can be divested only by recapture, or by the sentence of a competent tribunal; and the property is subjected to forfeiture for a violation, by the captor, of the revenue or other municipal laws of the neutral country into which the prize may be carried. The Josefa Segunda, 5 Wheat. 338; 4 Cond. Rep. 672. 28. Where the general facts which constitute a forfeiture within a statute, are proved, and there are exceptions to its operation in particular cases, the better opinion certainly is, that the 37. A forfeiture attaches, in rem, at the moparty who would avail himself of the exception, ment the offence is committed, and the property must prove it; although from the forms of plead- is instantly divested. Gelston et al. v. Hoyt, 3 ing, it may be necessary to negative every ex-Wheat. 246; 4 Cond. Rep. 244. ception in the indictment or information. Ibid. 29. Where property is libelled as prize, the United States cannot seize it as forfeited under a municipal law, so as thereby to defeat the prize jurisdiction. The only proper mode of proceeding is to interpose a claim in the prize court, upon a seizure for the forfeiture, and this claim is in the nature of an information. If upon a hearing, the title of prize is defeated, and the claim of the owners rejected on account of any illegal conduct, condemnation must be to the United States. But whether the forfeiture shall be to the United States generally, or to be distributed, depends not at all upon the mode of proceeding, but upon the fact whether there be seizing officers or others, who in the given case have entitled themselves to share in the forfeiture. Thus, where a claim was interposed by the United States, in a prize proceeding, upon a seizure for a forfeiture under the nonimportation law, and the title of the captors and claimants were defeated, the property was condemned to the United States, subject to distribution, according to the provisions of the ninetyfirst section of the act of March 2, 1799, ch. 128. The Gefla, 1 Mason's C. C. R. &8. 30. The promulgation of laws should be such as to afford every person who is to be affected by them a reasonable opportunity of being, as early as possible, acquainted with them. The Ship Cotton Planter, Paine's C. C. R. 23. 31. The spirit of the revenue laws is not to create a forfeiture of property, except for acts of the owner, attended with fraud, misconduct, or negligence. 651 Chests of Tea v. The United States, Paine's C. C. R. 499. 32. No one is to suffer for the fraud, misconduct, or negligence of the revenue officers, in which he does not participate. Ibid. 2. Forfeitures under the Acts of Congress, relating to the Registry of Ships and Vessels. 39. Under the act of congress of December 31, 1792, which declares "that if a false oath be taken in order to procure a register for a vessel, the vessel or its value shall be forfeited," the United States have an election to proceed aga st the vessel as forfeited, or against the person who took the false oath, for its value. But until that election is made, the property of the vessel does not vest in the United States; and the United States cannot maintain an action for money had and received against the assignees of the person who took the oath, and who had become bankrupt; the assignees having sold the vessel and received the purchase money, before seizure of the vessel. United States v. Grundy and Thornburgh, 3 Cranch, 337; 1 Cond. Rep. 554. 40. If one of two partners in a house of trade in the United States, obtain a United States register for a ship, by swearing that he, together with his partner, of the city of New York, are the sole owners of the vessel, when in fact his 33. It is an evident impolicy to allow a for-partner is domiciled in England, the vessel is feiture, where it is to be the consequence of the liable to forfeiture under the registry act of Defraud or negligence of such revenue officers, as cember 31, 1792, ch. 146. The Venus, 8 Cranch, they might entitle themselves to a share of it. 253; 3 Cond. Rep. 109. Ibid. 34. The general bond of the importer for duties on teas, accompanied with a deposite of the teas, as provided for by the sixty-second section of the collection law, is a securing of the duties, within the meaning and true interpretat of the forty-third section. Ibid. 35. And if this were not sucr a seuring of the duties, the teas could not have been landed. Ibid. 36. No sentence of condemnation can be affirmed, if the law under which the forfeiture has accrued, has expired; although a condemnation and sale had taken place, and the money had been paid over to the United States before the 41. A transfer of a registered vessel, to a foreigner, in a foreign port, for the purpose of evading the revenue laws of the country, with the understanding that the vessel is afterwards to be reconveyed, is a forfeiture of the vessel under the act of 31st December, 1792, ch. 1, unless the transfer is made known as provided by the seventh section of the act. The Margaret, 9 Wheat. 421; 5 Cond. Rep. 638. 42. The statute does not require a beneficial sale, but a transfer of the ownership, by way of "trust, confidence, or otherwise." Ibid. 43. It is not necessary, to incur the forfeiture under the slave trade acts, that the equipments of the voyage should be completed. It is suffi Forfeitures under the Acts of Congress, relating to the Registry of Ships and Vessels. cient if any preparations are made for the unlawful purpose. The Plattsburg, 10 Wheat. 133; 6 Cond. Rep. 43. 44. Maryland.— An information was filed in the district court of the United States on the 1st of October, 1832, against the brig Burdett, alleging her to have been forfeited to the United States for a violation of the registry acts, she being owned in whole or in part by a foreigner, a subject of the king of Spain. The vessel was purchased by an agent of George S. Steever, a native citizen of the United States, and was sent to the Havana. From the time of her arrival at Havana, she was placed under the direction of J. J. Carrera, a merchant of that place, and all her voyages directed by him, professing to act as the agent of Mr. Steever. Part of the cost of the brig was paid in cash by Mr. Steever, to his agent on his return to the United States, and the balance charged by the agent and settled for in account with Mr. Carrera. The counsel for the United States offered in evidence certain letters written by Mr. Carrera to captain Nabb, the commander of the Burdett during her several voyages, which had been directed by him, and which letters related to the business and employment of the Burdett. The letters were objected to as evidence, and were admitted in the district and circuit court, to which latter court the case was taken on an appeal by the claimant of the vessel. Held, that the letters were not legal evidence. United States v. The Brig Burdett, 9 Peters, 682. 45. The object of this prosecution was to enforce a forfeiture of the vessel and all that pertains to her, for a violation of a revenue law. The prosecution was a highly penal one, and the penalty should not be inflicted unless the infractions of the law shall be established beyond reasonable doubt. Ibid. 46. That frauds are often practised under the revenue laws cannot be doubted, and that individuals who practise these frauds are exceedingly ingenious in resorting to various subterInges to avoid detection, is equally notorious. But such acts cannot alter the established rules of evidence, which have been adopted as well with reference to the protection of the innocent, as the punishment of the guilty. Ibid. and subsequently sold, for a valuable consideration, to one ignorant of the fraud which had been committed, it was held that she was not subject to forfeiture in the hands of such bona fide owner. United States v. The Anthony Mangin, 2 Adm. Decis. 452. 49. It is not the sale of an American vessel to an American citizen, which subjects the vessel to a forfeiture of her privileges: but the neglect to obtain a new register, when the circumstances of the case and the provisions of the act of congress will permit the same to be obtained. Willinn & Francis v. The United States, 1 Wash. C. C. R. 125. 50. Under the eighth section of the coasting act of 1793, ch. 8, no forfeiture is incurred for proceeding on a foreign voyage, unless the vessel have actually broken ground with an inten. tion to commence such a voyage. The Julia, 1 Gallis. C. C. R. 43. 51. The forfeiture in such case, does not attach until the vessel has actually quitted the port, with an intent to proceed on such foreign voy age. The Friendship and Cargo, 1 Gallis. C. C. R. 45. 52. It is the actual proceeding, and not the attempt to proceed on a foreign voyage, that is punishable. Ibid. 53. "Foreign voyage," in that section, means a voyage intended to some place within the jurisdiction of a foreign country, or at least without the territorial jurisdiction of the United States. The Lark, 1 Gallis. C. C. R. 55. 54. A registered vessel is within the prohibitions of the third section of the act of 9th January, 1808, ch. 8. That section was not repealed by the act of 1809, ch. 91, or act of 28th June, 1809, ch. 9. The Short Staple, 1 Gallis. 104. 55. Under the third section of the act of 1808, ch. 8, the return cargo was not affected with forfeiture. Ibid. 56. A vessel licensed for the cod-fishery, under the act for enrolling and licensing vessels, during the embargo law, took on board a quantity of goods without inspection, at a wharf in New London, to transport about five miles to Mystic river, in the same district, but was seized when a mile and a half on her way. Held, that although she had not violated any of the provisions of the embargo laws, she was forfeited for being employed in another trade than that for which she was licensed. The Sloop Active, Paine's C. C. R. 247. 47. If a fair construction of the acts and declarations of an individual do not convict him of an offence, if the facts may be admitted as proved and the accused be innocent, should he be held guilty of an act which subjects him to 57. A vessel, sailing to an interdicted port, unthe forfeiture of his property, on a mere pre-less by permission of the president, on the public sumption? He may be guilty, but he may be service, was liable to forfeiture under the third innocent. If the scale of evidence does not pre- section of the act of June 28th, 1809, ch. 217. ponderate against him, if it hang upon a balance, Under the same act, British ports were permitted the penalty cannot be enforced. No individual ports. The Wasp, 1 Gallis. C. C. R. 140. should be punished for a violation of law, which inflicts a forfeiture of property, unless the offence shall be established beyond reasonable doubt. This is a rule which governs a jury in all criminal prosecutions; and the rule is no less proper for the government of the court, when exercising a maritime jurisdiction. Ibid. 48. When a vessel belonging in part to a foreigner, was registered as an American vessel, 58. A merchant vessel, from which goods are unladen without a permit, after her arrival within the limits of the United States, but before she has reached her port of destination, is not liable to forfeiture under the act of congress of March 2d, 1799. United States v. The Hunter, Peters' C. C. R. 10. 59. The first section of the slave trade act of 1800, ch. 51, prohibits not merely the transpor Forfeires under the Duty and Revenue Lave tation of slaves, but the being employed in the business of the slave trade; ark therefore a vessel caught in such trade, though before she has taken slaves on board, is liable to forfeiture. The Brig Alexander, 3 Mason's C. C. R. 175. 60. If the master is guilty of smuggling during the voyage, if it is gross, it is a forfeiture of his wages for the voyage; and, at all events, any loss occasioned to the owner thereby, is to be compensated out of the wages of the master. Willard v. Dorr, 3 Mason's C. C. R. 61. 61. To subject a vessel to forfeiture, according to the provisions of the act of 2d March, 1819, there must be an excess of twenty passengers beyond the proportion of two to every five tons of the vessel. United States v. The Louisa Barbara, Gilpin's D. C. R. 334. spirits which have not been imported into the United States, or a mixture of domestic with foreign spirits; the object of the act being the security of the revenue, without interfering with those mercantile devices which look only to individual profit, without defrauding the govern ment. Sixty Pipes of Brandy, 10 Wheat. 428, 6 Cond. Rep. 173. 69. The law requires three circumstances, all of which must be found united in order to make a case of forfeiture. 1. That the cask shall contain distilled spirits. 2. That it should be one which the law requires should be marked and accompanied with a certificate; that is, one that has been used for foreign spirits. 3. That it should be found in the possession of some persor unaccompanied with the legal mark and proceedings. Ibid. 3. Forfeitures under the Duty and Revenue Laws. 70. Under the fiftieth section of the act of 62. Wine and spirits saved from a wreck, and .799, ch. 128, the unlading of foreign goods, exlanded, are not liable to forfeiture, because un-ceeding four hundred dollars in value, without a accompanied with such marks and certificates as are required by law, nor because they were removed without the consent of the collector, before the quantity and quality were ascertained, and the duties paid. Peisch et al. v. Ware et al., 4 Cranch, 347; 2 Cond. Rep. 137. 63. Where the res gestæ, in a revenue cause, are incapable of explanation consistently with the innocence of the party, condemnation follows, although there be no positive testimony of the offence having been committed. Circumstances are sometimes more convincing than the most positive evidence. The hooert Edwards, 6 Wheat. 187; 5 Cond. Rep. 59. 64. Although a mere intention to evade the payment of duties be not, per se, a cause of forfeiture, yet when a question arises, whether an act has been committed which draws after it that consequence, such intention will justify the court in not putting on the conduct of the party, in respect to the act in question, an interpretation as favourable as under other circumstances would be disposed to do. Ibid. 65. The French tonnage duty act of the 15th May, 1820, ch. 125, inflicts no forfeiture of the vessel for the non-payment of the tonnage duty. The duty is collectable in the same manner as by the collection act of 1799, ch. 128. The Apollon, 9 Wheat. 362; 5 Cond. Rep. 612. 66. A decree of acquittal on a proceeding in rem, without a certificate of probable cause of seizure, and not appealed from with effect, is conclusive, in every inquiry before any other court, that there was no justifiable cause of seizure. Ibid. 6. The twenty-ninth section of the collection act of 1799, ch. 128, does not extend to the case of a vessel arriving from a foreign port, and passing through the conterminous waters of a river which forms the boundary between the United States and the territory of a foreign state, for the purpose of proceeding to such territory. Ibid. 68. Under the duty act of 1799, ch. 126, sec. 43, it is no cause of forfeiture that the casks, which are marked and accompanied with the certificates required by the act, contain distilled permit, operates a forfeiture of the vessel, although not actually brought in such vessel from a foreign port, but transhipped into her on the homeward voyage. The Harmony, 1 Gallis. C. C. R. 123. 71. When goods are liable, under the sixty. seventh section of the law for the collection of dues, for disagreeing with the entries, and the claimant sets up mistake as an excuse, the cir cumstance that probable cause of seizure has beer made out, does not impose on the claimant the recessity of making out an unusually clear case of mistake. All he has to do is to produce ordir.ary proof. United States v. Nine Packages Liner. Paine's C. C. R. 129. 72. I was holden a sufficient and legal excuse for an incorrect entry of goods, that they were entered from an invoice made out in great hurry and cetation while the goods were packed at Caer the absence of the owner, in order to eer e them by removal from an apprehended plage by the Prussian soldiery who occupied the place. Ibid. 73. How far a court can regard the innocence of a party where the facts of a case subject it to the penalties of a statute, and especially of the collection law. United States v. Thomas Morris, Paine's C. C. R. 209. 74. Where goods are seized as forfeited unde the act of the 20th April, 1818, for being entere at the custom-house differently from the invoice, the inquiry cannot be made at the trial, whetter such difference proceeded from accident c mistake; the question being referred exclusively to the secretary of the treasury. United States v One Case Hair Pencils, Paine's C. C. R. 400. 75. Nor has the collector a right to make such inquiries on seizure of goods under this act Ibid. 76. The provision in the act of 2d March, 1799, allowing such inquiry to be made by th court or collector, is impliedly repealed by th act of 1818. Ibid. 77. Spirits, wines and teas, are not subject to seizure under the forty-third section of the ca lection law, which declares "that if any chest. &c. shall be found in the possession of any pa Forfeitures under the Duty and Revenue Laws. son, unaccompanied with the marks and certificates, it shall be presumptive evidence that the same is liable to forfeiture," unless the certificates and marks are both wanting. 651 Chests of Tea v. The United States, Paine's C. C. R. 499. 78. Under the prohibitions of "the act to regulate the collection of duties on impost and tonnage," merchandise taken out of a vessel four leagues from the coast is not forfeited, nor is the vessel receiving such goods on board forfeited. United States v. The Virgin, Peters' C. C. R. 7. 79. To justify the forfeiture of a package of goods under the provisions of the fourth section of the act of 28th of May, 1830, either the package must contain an article not described in the invoice, or the package or invoice must be made up with intent to evade or defraud the revenue. United States v. A Package of Lace, Gilpin's D. C. R. 341. 80. To subject goods to forfeiture for a false valuation, it must be accompanied by a fraudu lent intent and design. United States v. Fourteen Packages, Gilpin's D. C. R. 244. 86. The marks and certificates being evidence only of the lawful importation, the want of them affords no presumption of the non-payment of duties. Ibid. 87. A deposite of the teas in all cases under this act, is in effect a pledge, and in lieu of the personal sureties dispensed with, unless spe cially declared to be otherwise. Ibid. 88. Query, Whether, if government regain the possession of teas irregularly obtained from their keeping, without the payment of duties, they can enforce their lien for the duties, or how long such lien continues after the teas have got into circulation in the market. lbid. 89. A forfeiture for the embezzlement of wines, &c., under the 5th section of the act of April 20, 1818, is incurred only by the act of the owner, and not of a mere stranger, or the inspectors of the revenue. But the provisions of this act have no application to a case arising under the 43d section of the collection law. Ibid. 90. Goods of foreign manufacture, imported into the district of Maryland, where the duties were paid or secured, being afterwards carried 81. The act of May 15, 1820, ch. 644, inflicts by the owner across the state of Delaware to no forfeiture for the non-payment of the tonnage Philadelphia, without any license or permit duty thereby enforced on French ships and ves- from the collector of the port of Baltimore, the sels, but provides for its collection in the same same not belonging to the master, owner, or any manner as tonnage duties are to be collected un-mariner of the vessel in which they were im der the collection act of 1799, ch. 128. The Apollon, 9 Wheat. 362. 82. The twenty-ninth section of the collection act of March 2, 1799, ch. 128, does not extend to the case of a vessel arriving from a foreign port and passing through the waters of a river which constitutes the boundary between the United States and a foreign nation, for the purpose of proceeding to a port within such foreign territory; such transit is not an arrival in the limits of the United States, within the sense of that section. Ibid. ported into Baltimore, and the owner of the goods being neither owner, captain, nor mariner of the packets engaged in the transportation, are forfeitable to the United States, under the 19th section of the coasting laws of February 18th, 1793, ch. 153; the 33d section of the same act will not prevent the forfeiture; its provisions cannot refer to the 19th section. Priestman v. The United States, 4 Dall. 28; 1 Cond. Rep. 218. 91. The term "concealed," as used in the 68th section of the duty act of March 2, 1799, ch. 83. "Possession of any person," as used in 128, applies only to articles intended to be sethis section, means the possession of the pur-creted and withdrawn from public view, on acchaser, to whom the certificates are required to be delivered on the sale, and not the possession of a wrongdoer. 651 Chests of Tea v. The United States, Paine's C. C. R. 499. 84. The information alleged that the teas were accompanied by marks and certificates; but the proof was, that the certificates only were wanting. Held, that the averment was unsupported by proof; and the necessity of this allegation shows that the true construction of the act is, that both must be wanting. Ibid. 85. The want of marks and certificates, and not the illegal importation or non-payment of duties, is the specific cause of forfeiture under this section. And this is evident from its not being necessary to allege in the information that the teas were illegally imported, or the duties unpaid, but only that they were unaccompanied with marks and certificates. So of the other provisions of the act, their object is to guard against illegal importation and the non-payment of duties; but the forfeiture which they create is incurred only by a violation of the special regulations which the law has provided as guards and checks. Ibid. VOL. I.-65 count of the duties not having been paid or secured to be paid, or from some other fraudulent motive. The forfeiture inflicted by that section does not extend to a case where the duties not having been paid, or secured in any other manner than by giving the general bond, and storing the goods according to the 62d section of the act: the goods were fraudulently removed from the storehouse agreed upon by the collector and importer, by some person other than the claimants, who were bona fide purchasers of the goods, and without their knowledge and consent, shipped to another port, where they were found stowed on board the vessel in which they had been transported, in the usual manner of stowing such goods when shipped for transportation. United States v. 350 Chests of Tea, 12 Wheat. 486; 6 Cond. Rep. 593. 92. Under the 62d section of the act, in the case of teas, the duties are "secured to be paid " within the meaning of the law, by the single bond of the importer, accompanied by a deposite of the teas imported, to be kept under the lock and key of the inspector, and subject to the control of the naval officer and collector, 4 W |