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the teas were found in New York, were wholly ignorant of the manner in which the same had been obtained from the store in Philadelphia, without paying the duties due thereon, or giving further bond to secure the same.

And that the teas were transported to the city of New York, in the manner set forth in the claim. In examining the questions which are presented by this case, it is to be borne in mind, that it is a proceeding against the teas as forfeited to the United States, by reason of an alleged violation of some part of our revenue laws; and not to regain the possession of the property, of which the United States may have been wrongfully or fraud-. ulently deprived; so as to enable them to enforce payment of the duties for which there may be a lien. And it is a proceeding to enforce their forfeiture against innocent bona fide purchasers of the property, who are not chargable with the least misconduct or even negligence, by which the government lost the possession it once had of the teas. The manner in which, or the means by which that possession has been lost, are not particularly disclosed by the record. But enough is shown to warrant the conclusion, that it must have been effected by the misconduct or negligence of some of the custom house officers at Philadelphia and some other persons, for neither of whom, however, can the claimants be held responsible or be in any manner implicated by their acts. If, under such circumstances, the teas in question have become forfeited, it ought to be the result of some plain and positive provision of law. Whilst on the one hand security to the revenue of the coun

try may require rigid laws to guard against fraud, yet on the other, the rights of the innocent ought to be protected, and care should be taken not so to shackle trade and commerce, as to check the industry and enterprise of the merchant, and render hazardous to the whole community the purchase of articles which may have been subject to the payment of duties. I am not aware of a single instance, where by any positive provision in the revenue laws, a forfeiture is incurred, that it does not grow out of some fraud, misconduct, or negligence of the party on whom this penalty is visited. In the case of the United States vs. the cargo of the sloop Favorite, (4 Cranch, 365,) to which I shall have occasion hereafter more particularly to refer; the supreme court of the United States, in speaking of the provisions in the collection law of 1799, relative to forfeitures, say, "that the law is not understood to forfeit the property of owners or consignees on account of the misconduct of mere strangers, over whom such owners or consignees could have no control." And if not on account of the misconduct of strangers, much less justice would there be, in making the misconduct of the custom house officers, who are the agents of the government, draw after it such a penalty upon the innocent owner.

With these preliminary observations I shall proceed to a more particular examination of the several grounds upon which the forfeiture of these teas is attempted to be sustained, and which may be done under the following heads.

1st. That certificates did not accompany each chest of tea when found in New York.

2d. Whether by the general bond of Edward Thompson, the importer, and the deposite of the teas in store, according to the provisions of the sixty-second section of the collection act of 1799, the duties were secured within the meaning, and true interpretation of the fortythird section of the same act.

By this law, from the 37th to the 43d sections, inclusive, various provisions are made with respect to the entry, and landing of distilled spirits, wines and teas; and among other things it is required, that the officers of inspection, at the port where the same shall be landed, shall, upon the landing thereof, mark in durable characters, the several casks, chests, vessels and cases containing the same, showing the quantity, and quality, of each; the port of importation, the name of the vessel, the surname of the master, the date of the importation, and the name of the surveyor or chief officer of inspection for the port. The special verdict finds, that all this was done with respect to the teas in question, and that such marks were upon each chest, when they were seized.

The surveyor or chief officer of inspection, within the port or district in which the spirits, wines and teas shall be landed, is required to give to the proprietor, importer or consignee, or his agent, a general certificate, which he is to retain, showing the whole quantity so imported'; and the name of the proprietor, importer, consignee, or agent, and of the vessel from on board which the spirits, wines or teas, shall have been landed, and the marks of each cask, chest, vessel or case, containing the same.

In addition to this general certificate, the surveyor, or chief officer of

inspection, is required to give a spe cial certificate, which shall accompany each cask, chest, &c. wherever the same may be sent within the limits of the United States, as evidence that the same has been lawfully imported. It is the latter certificate, that the special verdict finds did not accompany each chest of tea when found in New York. The certificates, however, were duly issued by the surveyor, and were in the possession of the claimants in Philadephia, when the seizure was made.

Then comes the section, (43) under which the forfeiture is claimed, which declares, that the proprietor, importer or consignee, or his agent, who may receive said certificates, shall, upon the sale or delivery of any of the said spirits, wines or teas, deliver to the purchaser thereof, the certificate that ought to accompany the same, on pain of forfeiting the sum of fifty dollars for each cask, chest, &c. with which such certificate shall not be delivered. And if any cask, chest, vessel or case, which by the foregoing provision ought to be marked, and accompanied with certificates, shall be found in possession of any person, unaccompanied with such marks and certificates, it shall be presumptive evidence, that the same is liable to forfeiture, and it shall be lawful for any officer of the customs or of inspection, to seize them as forfeited.

The form of this special certificate is given in the act and contains substantially no more than the law requires to be expressed by the marks on each cask, chest, vessel or case, and it is to accompany each cask, chest, &c., as evidence that the same has been lawfully imported. It is by no means, however,

to be inferred, that this is the only document or evidence to be received and looked to, showing a lawful importation. It is one of the checks which the law has provided, to guard against illegal importations. The marks are for the same purpose, and of at least equal, if not of more importance. They are required to be made in durable characters on each cask or chest, &c., and must of course accompany it wherever it goes. The certificate, from the very nature of the document, cannot always accompany the cask or chest. It is not required to be nailed to it. And the act only requires, that upon the sale or delivery of the teas, &c., the certificate shall be delivered to the purchaser. And when it speaks of the cask or chest being found in possession of any person, unaccompanied by this evidence, it must be intended to refer to the person who has possession as purchaser. And to authorize the seizure, the cask or chest must be unaccompanied with such marks and certificates. The absence of both are necessary. This is not only made so by the letter of the act, but is what may reasonably and fairly be presumed to have been the intention of the legislature. And when the law has declared that two concurring circumstances, shall authorize an act, and produce a certain effect, it is going great length in the construction of a statute so highly penal as this, to say, that one or the other circumstance shall produce the same effect, and that both need not concur. It was the want of the certificates only, upon which the seizure was made, and if the condemnation is to be sustained, it must be upon this alone, for the chests were all duly marked as by law required. The

reasonableness and necessity of requiring the want of both marks and certificates to warrant a seizure and condemnation, may be illustrated and enforced by a hypothetical case. Suppose a chest of tea sold in the usual course of business, and the certificate delivered as the law requires to the purchaser, and the tea sent by a cartman to the place where it was to be used or retailed, unaccompanied by the certificate, would a custom house officer be authorized to seize this chest of tea, and would condemnation follow thereupon? I presume no one would contend for such a construe, tion of the act; and yet would it be more extravagant than a construction must be which sustains the forfeiture in the present case. The claimants, as owners of the teas, were entitled to the possession of the certificates, and in fact, bound to have them, as one of the vouchers of their title, and not having sold the teas, there was no purchaser to whom the certificates could be delivered as the law requires. It is upon the sale or delivery of the tea, that the law requires the certificates to be delivered over to the purchaser. And if the owner is wrongfully or fraudulently deprived of the possession of his teas, it would involve a great absurdity to say he is bound, under the penalty of forfeiting his property, to hand over the certificates to the wrong doer. Have the claimants incurred the penalty of fifty dollars for each chest which the law imposes upon the proprietor for not delivering the certificates to the purchaser upon the sale of the teas? Certainly not. It would seem to me, that the claimants might, with equal justice, to be subjected to a forfeiture of their property, if it had been stolen

and afterwards found in the possession of some persons unaccompanied with the certificates. But these and the like extraordinary cases, do not come within the sense and meaning of the law, which is adapted to a regular and usual course of business, and where it is in the power of a party to comply with the requirements of the law; and not to cases where, from the nature of things, a compliance with the letter of the law is impracticable. The want of the certificates was open to explanation, and was satisfactorily accounted for. In the case of the cargo of the Favorite, (4 Cranch, 363,) the court say, "it is unquestionably a correct legal principle, that a forfeiture can only be applied to those cases in which the means that are prescribed for the prevention of a forfeiture may be employed." To apply this principle to the present case. The claimants were ignorant of the fact, that these teas had been illegally taken from the stores in Philadelphia. Nor is it pretended that it was done by any one for whom they are responsible. What means then were in their power to guard against the forfeiture now claimed.

These considerations show the propriety of requiring, that, in order to make out a prima facie case of seizure and forfeiture, the teas should have been unaccompanied with both marks and certificates. But this will appear in a still more obvious point of light by an inquiry, as to the necessary allegations in the informations. Would it have been sufficient to have alleged that the teas were found in the possession of Smith and Nicoll unaccompanied with the certificates only? I think it would not. And such must have been the understanding of the

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district attorney in framing this information, otherwise he would not have alleged the want of both marks and certificates, in the language of the act, as it must have been known that the proof would not sustain such an allegation. The want of marks is certainly not an immaterial allegation, and having been made, it was necessary to be proved.

The reverse of which, however, is found by the special verdict, which establishes the fact, that each chest when found, bore all the marks which the law requires. The proof, therefore, did not support the allegation, (and as I think, a necessary allegation,) in the information.

But it is said the want of marks and certificates, is not the ground of forfeiture, but only authorises the seizure, but that the condemnation is for illegal importation, and non-payment of duties. This, I apprehend, is not a correct view of this 43d section of the act. Nor is it the construction assumed in the information. The want of marks and certificates, is alleged as the substantive ground of forfeiture. The marks and certificates have no connection whatever with the payment of duties. They relate altogether to the importation.

With respect to the certificate, the 41st section of the act expressly declares, that it is to accompany each chest, as evidence that the same has been lawfully imported, and the marking is by the officers of inspection, who are under the superintendence of the surveyor, under whose direction the teas are to be landed, the duties, however, or the security for the same, are received by the collector. The existence of marks

and certificates being no evidence of the payment of duties, the want of them can afford no presumption of the non-payment. And if the want of the certificates in the present case, was presumptive evidence of illegal importation. That presumption is rebutted by the special verdict, which finds expressly, that the teas were legally imported. The condemnation, therefore, cannot be sustained on any presumption of illegal importation. And if the certificate has no connection with the payment of duties, the want of it, as has been already observed, affords no presumption of non-payment.

But let us look a little more particularly into the provisions of this 43d section, and see whether the want of marks and certificates is not the substantive ground of forfeiture. And one of the surest tests by which to ascertain this, is to see what allegations the information must contain. And I think it is very clear, that it is not necessary to allege any thing more, than that the teas were found in the possession of some person unaccompanied with marks and certificates. the act declares shall be presumptive evidence that the teas are liable to forfeiture, and may be seized as forfeited.

This

The act does not declare, that want of marks and certificates shall be presumptive evidence of illegal importation, or the non-payment of duties, which it would undoubtedly have done, if this was made the substantive ground of forfeiture under this section. The ultimate object of the provision undoubtedly is, to guard against illegal importa tions, and compel the introduction of goods through the regular channel provided by law. But the act

makes the want of marks and certificates prima facie, sufficient to sustain the forfeiture. The information need not allege an illegal importation or the non-payment of duties. The act makes it matter of defence to show the teas were legally imported, and the duties paid or secured, and it is never necessary to state in a libel any fact which constitutes the defence of the claimants, or a ground of exception to the operation of the law on which it is founded. This has been expressly so laid down by the supreme court of the U. S. (7 Cranch, 382.) If the information then need only allege that the teas were found unaccompanied with marks and certificates, no more need be proved, prima facie, to warrant a condemnation; and unless the claimants should set up as matter of defence, evidence in relation to the importation or payment of duties, the only ground of condemnation would of course be the want of marks and certificates, and for this the act declares the teas shall be adjudged to be forfeited, unless the claimant upon the trial, shall prove the same to have been imported according to law, and the duties paid or secured. So with respect to all the other provisions in the act, where the penalty of forfeiture is inflicted, they may be considered as having for their object, to guard against illegal importations and to secure the payment of duties, yet it cannot, with propriety, be said, that the illegal importation, or non-payment of duties, is the ground of forfeiture. This is incurred by a violation of the special regulations which the law has provided, as guards and checks. Thus to unlade goods before the vessel comes to the proper place for the discharge of the cargo, or

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