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When suit was brought for the penalty under the act of 1823, it was regarded as a civil action, and the rule which applies to such cases, that the principal is bound by the acts of his agent, and that the firm are bound by the acts of any member of it, in the purview of the agency, or the business of the firm, was applied. In this case, the principal place of the business of the firm was Bangor, Maine. They were engaged in importing shingles, and one of the partners was on the St. John river, from which place he forwarded the shingles to Bangor. If the shingles were the growth of trees in Maine, they were not liable to duty, but if from the British province they were. The shingles in question were entered as free of duty, when they were really the growth of the province. The knowledge of this fact which made the importation illegal, was confined to the partner in the province, who was not sued. The members in Maine, who were sued, having received the merchandise illegally imported in the usual course of business, and participated in the profits arising in part from these illegal importations, the knowledge of the member in the province was considered as the knowledge of the members in Maine, and the action was maintained against them for the penalty. Justice Field dissented in an able opinion, taking the view that the act of 1823 did not apply to importers, that it was repealed by the act of 1866, and that guilty knowledge could not be presumed from the knowledge possessed by a partner. The dissenting opinion was concurred in by Justice Bradley entirely, and by Justice Miller on the first two points. It is simply impossible to understand the logic of the court, which makes an act in terms applying only to the accessories to an illegal importation, apply to the principal, because forsooth otherwise the accessories would be punished and the principal escape. It is the duty of the legislature to make laws, not of courts, and if an act does not embrace a principal, whence does a court get authority to extend it, and if it extends the act, how far can it extend it? This case seems to be a clear piece of judicial legislation.

The Revised Statutes, following the act of 1866, embrace the importer in terms, as well as the accessories. A most important feature of this statute is the provision that possession of goods imported contrary to law is evidence sufficient to support a conviction, unless it be explained to the satisfaction of the jury. Does this provision mean anything more than that possession of such goods will make a prima facie case against the person who has the goods in possession? And

1 United States v. Stockwell, 13 Wall. 531. See, as to this case, United States v. Claflin, 22 Int. Rev. Rec. 395.

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does it apply to any case except a prosecution for the crime by indictment? The term conviction, while it may be applied to a suit to recover a penalty, is certainly more appropriate to an indictment for a crime. Perhaps the object may have been to leave the question of guilty knowledge in such cases to the jury as a question of fact in all cases, rather than make it one of law as in United States v. Stockwell. The statute applies not only to the importer and those who conceal the goods, but to any person who receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment or sale of such merchandise after importation, with knowledge of the illegal importation.

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Vessel Unloading without Permit.—After a vessel arrives within the limits of any collection district, if she unlades without a permit from the customs officers, the person in command of the vessel is subject to a penalty of $1,000, and the merchandise is forfeited.1 It applies to goods not actually brought from a foreign port, but transhipped from another vessel on the homeward voyage. Where opium was bought in San Francisco, carried to. Victoria, and then shipped to Portland, Oregon, and landed without permit, it was considered within the statute. It is not necessary that the goods should be of foreign growth or purchase, for the statute prohibits the landing of any goods brought from a foreign country without a permit. A special entry is made on the manifest of personal baggage. Where a number of trunks were entered as containing wearing apparel, but which contained dutiable goods from foreign countries, they were forfeited, and even if such goods are landed under the baggage permit, as it is called, they are still liable to forfeiture. That permit is only intended for personal baggage, and not for merchandise. The forfeiture applies to the vessel unlading not the vessel receiving the goods. It does not apply to a vessel before she arrives within four leagues of the coast, to articles for the ship's use, to goods landed from a wreck, or to goods landed by the salvors of a cargo, but it does apply to goods whose importation is prohibited,1o and to silver dollars.11

1 Schooner Industry, 1 Gallis, 114; R. S. U. S. §§ 2867, 2868.
The Harmony, 1 Gallis. 123.

Ten Cases of Opium, 1 Deady, 62.

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4 The Robert Edward, 6 Wheat. 187; United States v. Three Cases, 6 Ben. 558.

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United States v. The Virgin, Pet. C. C. 7; The Brant, Pet. C. C. 14.

United States v. A Chain Cable, 2 Sumner, 362.

The Gertrude, 3 Story, 68.

Peisch v. Ware, 4 Cranch, $47.

10 Harford v. United States, 8 Cranch, 109.

11 The Elizabeth, 2 Mason, 407.

What amounts to a landing of goods? Where three bags of coffee were taken in an open boat to a wharf, and were in the act of being placed on the wharf, half of the bag being on the gunwale of the boat and half on the wharf, and then being discovered were all taken back to the vessel, they were held not to have been landed, so as to incur the penalty of the statute.1 In an information under the statute, it is sufficient to aver that the goods were landed in some port or place, to the district attorney unknown, without the permit of the collector of that district. A permit obtained by fraudulent collusion with the customs officers is void and affords no protection. If a vessel is compelled to unload from unavoidable accident, necessity or distress, that is sufficient excuse, but in that event it is the duty of the master to make proof of such circumstances, by one or more of his mariners, of whom the mate shall be one, before the collector of the district in which such accident was, or if it was not in any district, before the collector of that district in which his vessel first arrives.4

Except under a special permit for that purpose, a vessel must unload between the hours of sunrise and sunset. A violation of this statute subjects the master and all who knowingly aid therein to a penalty of $400, and the master is disabled from holding any office of trust or profit under the United States for seven years, and his name is to be published by the collector for twenty days. If the merchandise is over the value of $400, the vessel, apparel and furniture are subject to forfeiture, as well as the merchandise.5

It will be noticed that there is a great difference between penalties for unloading without a permit and unloading at night. In both cases there are fines and a forfeiture of merchandise, but in the latter there is also the forfeiture of the vessel, her apparel and furniture if the goods are worth more than $400.

§ 164. Various Penalties, how Enforced-Search-Seizure— Distribution of Forfeiture.-The principai and most ordinary violations of the customs laws have been considered, but there are many minor offenses yet to be noticed. The appraisers are entitled when making the examination of the importation, to require the importer to produce his papers, accounts and correspondence, and to examine

1 United States v. Smith, 2 Wash. C. C. 310.

2 United States v. Burnham, 1 Mason, 57. Bottomley v. United States, 1 Story, 135.

R. S. U. S. § 2867.

R. S. U. S. §§ 2872, 2873, 2874; United States v. Nine Trunks and one Bag, 22 Int. Rev. Rec. 317.

him on oath, and if he declines to answer he is liable to a penalty of $100, and in addition the appraisement is final and conclusive,1 and if the importer swear falsely on such examination, the merchandise is forfeited. Any person who alters, obliterates or defaces the marks of revenue officers on warehoused goods is liable to a penalty of $100. The importer, or proprietor of warehoused merchandise who by contrivance fraudulently opens such warehouse, or gains access to the merchandise stored therein, except in the presence of officers of the customs in the execution of their duty, is liable to a fine of $1,000. The term proprietor of warehoused merchandise may be intended to include the owner or proprietor of the warehouse as distinguished from the owner of the goods. Merchandise stored in either a public or private warehouse when fraudulently concealed therein, or fraudulently removed therefrom, is liable to forfeiture; and all persons who aid or abet in such concealment or removal, subject themselves to the same penalties as are imposed for the fraudulent importation of merchandise into the United States.5 What penalty is meant thereby? The introduction, or importation of goods by a fraudulent undervaluation comes within the terms of the statute; importation by a false invoice or other paper is also within it, and so is the fraudulent importation contrary to law described in § 3082. The latter however is the only fraudulent importation described in general terms, and is perhaps the one intended. In a prosecution under this statute for the fine, it is not sufficient to allege that the merchandise was unlawfully removed."

When merchandise is in course of transportation in bond by the designated carriers, any person who maliciously opens, breaks or enters the cars or vessels, or breaks, injures or defaces the seals or locks on the cars or vessels, with intent to remove unlawfully any merchandise therein, or with intent to defraud the United States, is guilty of a felony, punishable by imprisonment for not less than six months nor more than two years. Persons who aid or abet in the breaking and entering, or who receive any merchandise knowing the same to have been unlawfully removed, are liable to the same punishment."

Where merchandise is withdrawn from a warehouse, to be transported to another warehouse in another district, if there be a failure

1 R. S. U. S. § 2923.

* R. S. U. S. 2985.

5 R. S. U. S. § 2987.

6 United States v. George, 6 Blatch. C. C. 406.

2R. S. U. S. § 2924.
4 R. S. U. S. § 2986.

R. S. U. S. § 2998; United States v. N. Y. Cent. R. R. Co. 7 Iut. Rev. Rec. 391.

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to transport it in the time limited, it is liable to an additional duty of one hundred per cent., and the merchandise is subject to forfeiture. The vessel or vehicle in which the merchandise is transported is also liable to be seized and forfeited.1

How Enforced.-It is made the duty of the collector within whose district any seizure is made or forfeiture incurred, to commence and prosecute suits therefor. If it be to enforce a forfeiture of the merchandise or the vessel, the court in whose district the seizure is made has jurisdiction, and if for a pecuniary penalty, it may be brought either in the district in which they occurred, or in that in which the offender is found.3 The suits for penalties or duties are brought in the name of the United States.

The libel for a forfeiture must allege a seizure, and that the seizure still subsists. In proceedings in rem, the seizure is a jurisdictional fact, the absence of which may be taken advantage of at any stage of the cause. If the property seized by the revenue officer be abandoned or restored to the possession of the owner before the libel is filed, the court has no jurisdiction. If the seizure is not within the limits of any district, but on the high seas, the transaction may be laid in any district into which the property is brought. In all seizures on land, it has been held that the claimant is entitled to a trial by jury, and now by statute it is provided that in all actions to enforce a forfeiture, or to recover the value of the goods for a violation of the customs laws, the court shall submit to the jury as a distinct and separate proposition, whether the alleged acts were done with an actual intent to defraud the United States. The jury, or the court if the trial is without a jury, is required to pass upon and decide this proposition as a distinct and separate finding of fact. No forfeiture or penalty can be imposed without such finding.

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This statute must materially change the character and amount of evidence necessary to sustain a prosecution for many breaches of the customs laws. For instance, it could not be said in the case of United States v. Stockwell, that the parties prosecuted had an actual intent to defraud the United States, and it may be gravely doubted if the provision in § 3082, that possession of goods shall be sufficient evi

1 R. S. U. S. §3001; United States v. Pingree, 1 Sprague, 339. 2 R. S. U. S. § 3087.

4 The Washington, 4 Blatch. C. C. 101;

son, 360; The Merino, 9 Wheat. 391.

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3 R. S. U. S. §§ 562, 711, 731, 919. The Ann, 9 Cranch, 289; The Abby, 1 Ma5 R. S. U. S. § 734.

United States v. 14 Packages of Pins, Gilpin, 235.

18 U. S. Stat. p. 189; United States v. Newmark, 22 Int. Rev. Rec. 114.

8 13 Wall, 531.

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