without authority from the proper officer, subjects them to forfeiture, but it is enough to allege, and prove the simple fact of the unlading at ⚫ an improper place, or without a permit, without alleging or proving that the importation was illegal or the duties not paid, (27th.) So under the 37th and 38th sections of the act, spirits, wines, and teas required to be landed, under a special permit, endorsed as therein prescribed, and under the inspection of the surveyor or other officer acting as inspector of the revenue, on pain of forfeiture. In these and many other cases that might be referred to, it is the violation of the special regulation, that is made the ground of forfeiture. In the same manner as the want of marks and certificates is the ground of forfeiture under the 43d section..

I am persuaded, that under the extraordinary circumstances of this case, the single fact, that the teas were unaccompanied by the certificates, when found in New York, is not sufficient to sustain the condemnation. It is neither within the letter or spirit of the act. And cannot be supported under any rule of construction applicable to penal

statutes.

The case of the United States, vs. the cargo of the ship Favorite, already referred to, contains principles and rules of construction which have a very strong bearing upon the present case. The goods libelled in that case, consisted of wines, spirits, and other articles, saved from a wreck, and landed not in conformity to the regulations of the law with respect to such articles. The libel alleged as ground of forfeiture: 1st-That the wines and spirits were unaccompanied with the marks and certificates re

quired by law. And 2dly-That they were removed without the consent of the collector, before the quantity and quality of the wines and spirits had been ascer tained according to law. The facts alleged in the libel as the grounds of forfeiture were not controverted. There was, therefore, clearly a forfeiture according to the letter of the law. And it was urged upon the event, that the remission or mitigation of the forfeiture could only be exercised by the secretary of the treasury. One count in the libel in that case was under the 43d section of the act, like the present, and the want of marks and certificates alleged as the ground of forfeiture. And the court said the legislature, by the provisions referred to, did not intend to comprehend wrecked goods, or goods found under like circumstances. And this opinion of the intention of the legislature, was formed not exclusively upon the extreme severity of such a regulation, but also on what is deemed a fair construction of the language of the several sections of the act, which seems not adapted to such cases.

And with respect to the other ground alleged, as sustaining the forfeiture. The court said the removal, for which the act punishes the owner with a forfeiture of his goods, must be made with his consent or connivance, or with that of some person employed or trusted by him. If by private theft or open robbery, without any fault on his part, his property should be inva ded while in the custody of the officers of the revenue, the law cannot be understood to punish him with forfeiture of that property. The acts being done with no view to defraud the revenue,

the court would not be induced to put a strained construction on the act of congress in order to create a forfeiture.

May it not with equal force and propriety be said, that the legislature never intended to apply the penalty of forfeiture to goods found under circumstances like the present? And, indeed, this is a stronger case; for it does not come within the letter of the act. The marks did accompany the teas. The certificates only were wanting; and they wanting, under circumstances satisfactorily showing that no fault or negligence was imputable to the owners, any more than if the teas had been stolen from the stores in Philadelphia. And the principles laid down by the court in the case referred, apply with peculiar force-"that a forfeiture can only be applied to those cases in which the means prescribed for the prevention of a forfeiture may be employed; and that law is not understood to forfeit the property of owners, on account of this misconduct of mere strangers, over whom such owners could have no control."

I abstain from any remarks in relation to the conduct of the officers of inspection, who had charge of the store house in Philadelphia in which the teas were deposited, except, barely to observe, that the teas could not have been removed without fraud or gross negligence in them; and it would be dangerous, and a violation of all sound principles, to admit a construction of the law, which, in its consequences, might reward such misconduct with a portion of the forfeiture. For if these teas are forfeited, they would have been equally liable to forfeiture, if they had been seized by a

custom house officer in Philadelphia, whilst on their way from the store to the vessel in which they were transported to this city.

So far as the forfeiture may be claimed on the allegation of concealment, it is sufficient to say, the fact is expressly disproved by the special verdict.

There was not, therefore, made out, on the part of the United States, the presumptive evidence which the 43d section of the act declares shall render the property liable to forfeiture. And the claimants were under no necessity of proving that the teas were imported into the United States according to law, and the duties paid or secured.

This would supersede the neces sity of examining the second point that has been made in this cause. But as the question has been fully argued, it may not be amiss for me briefly to state the view I have ta ken of it. The special verdict puts at rest all questions that could arise respecting the legality of importation. And under this branch of the case, the only inquiry is, whether. by the general bond, (as it is called,) of the importer, and the deposit of the teas as required by law, in such cases, the duties were secured within the meaning, and true interpretation of the 62d sec. tion of the act.

If we look at this question upon general principles, and judge of it according to the common or legal understanding of such a transaction, independent of any statutary provision, no doubt could arise. To say that a bond, fixing the amount of a debt, and limiting the time of payment, accompanied with a deposit of goods to double the amount in value, to be held as a pledge,

with authority to sell the same at the expiration of the time limited for payment, and out of the proceeds to pay the debt, is not a security for such a debt, would be considered an extraordinary proposition and could not be sanctioned. If so, is there any thing either in the letter or in the spirit and policy of the collection law, calling for the application of other and different principles? This 62d section of the act declares, that with respect to teas imported from China or Europe, it shall be at the option of the importer to be determined at the time of making the entry, either to secure the duties thereon, on the same terms and stipulations as on other goods, &c., or to give his own bond in double the amount of the duties, with a condition for the payment of the duties in two years from the date of the bond, which the collector is directed to accept without surety, (that is to say personal surety,) upon the terms particularly specified in the act: which are substantially, that the teas shall be deposited at the expense of the importer, in a store house, to be agreed upon between the importer of the revenue, upon which store house the inspector is required to affix two locks, the key of one to be kept by the importer and the key of the other by the inspector, who shall attend, at all reasonable times, for the purpose of delivering the teas out of the store house. But no delivery is to be made with out a permit in writing from the collector and naval officer. And to obtain such permit, the duties upon the teas so to be delivered, must be first paid to the collector, or a bond with sureties to the satisfaction of the collector, given in double the amount of the duties,

payable as specified in the act. And if the duties, on any parcel of the teas, shall not have been paid or secured to be paid in the manner last specified, (that is, by bond with sureties,) within the term of two years, the collector is authorised and required to sell so much of the teas, as may be necessary to pay the duties and expenses on the teas remaining in store, and to return the overplus, if any, to the owner or owners thereof.

There is nothing in this provision essentially to vary it from the ordinary deposit of goods between individuals, as a pledge to secure the payment of a debt. It is unimportant that the importer was liable for the duties without his bond, or that the government had possession of the teas, and a lien for the duties before the deposit. of this there can be no doubt.But the government, by the provisions of this act, has agreed to hold this security under a different modification, and with different powers, than it possessed before. And whether this arrangement is exclusively for the accommodation and benefit of the importer or not, cannot alter the question. The possession of the property, and the liability of the importer, constituted the security which the government had for the duties. And that continues until discharged, from time to time, upon different parcels of teas delivered out of store, under the permit of the collecter, according to the provisions of the act. And what security could be more ample and satisfactory to the government? It is much more safe than the personal responsibility of individuals, especially upon so long a credit as two years. This security cannot be lost, without the

misconduct of the agents of the government. I do not mean to be understood, that the lien is discharged by any such misconduct, if possession is regained so as to enable the government to enforce the lien. But how long such lien continues, after the teas have got into circulation in the market, is a question I leave untouched. If the teas remain in store for the two years, under the general bond, can it with any propriety be said, that the government has no security for the duties? The law does not authorise the landing until the duties are paid or secured. And if the general bond of the importer, and the possession of the teas, landed and held under the inspection and control of the officers of the customs, (according to the 38th section of that act,) and the election of the importer, to have them deposited in stores, do not constitute the security; by what authority were they landed? The security required to be given, upon granting the permit, to deliver the teas out of store in parcels, cannot be the security required upon landing.

That is an after transaction, and totally distinct in its provisions. The one is the general bond of the importer, on a credit of two years, and a deposit of the teas in store. The other, the personal security of individuals for the duties upon the particular parcels delivered out of store, and payable at much shorter periods, according to the amount of duties. The latter is protanto a substitution for the former. If, at the expiration of two years, the duties shall not have been paid, or secured by bond, with sureties, so as to discharge the lien, the teas are dealt with in the same manner as property pledged in ordinary

cases as security for a debt. They are to be sold, and the debt and expenses paid, and the surplus returned to the owner, not forfeited.

The acceptance of goods, as a deposit for the security of duties in lieu of personal security, is a provision, incorporated in all our collection laws, from the first organization of the government, to the present time. (See acts 89 and 90, 2d vol. L. U. S. 23 and 161-act 99, 3d vol. Id. 195.) The collector, in lieu of sureties, is authorised to accept of a deposit of so much of the goods, as shall, in his judgment, be sufficient security for the amount of the duties for which the bond shall have been given: which goods are to be kept at the expense and risk of the party on whose account they have been deposited, until the bond becomes due; and if the bond shall not then be paid, so much of the deposited goods, as shall be necessary to pay the same, with the costs and charges, are to be sold.

These are essentially the same provisions as those in relation to teas. There is a bond in both cases given by the importer. The goods are substituted in place of sureties, and are called a deposit. If the bond in each case shall not be paid according to its condition, the goods are to be sold, and the duties and expenses paid, and surplus returned to the owner. There can be no reason why the same meaning should not be attached to the term deposit in both cases. If in the one case it has a technical meaning, and signifies a pledge, I am unable to discover why it should not have the same meaning in the other. The only difference between the cases is, that with re.

spect to teas there is a deposit of the whole, and the lien continues, until discharged by a substitution of personal security, as they are delivered out of store, in parcels, as may be required. And with respect to other goods, a part of the importation on which the duties were payable, are received as a substitute for sureties, and the lien on the residue is at once discharged.

But this cannot materially change the essence and nature of the transaction. The deposit, in both cases, is in lieu of personal sureties. For with respect to teas, as well as other goods, the importer has an option to give a bond with sureties in stead of making a deposit.

The different modes of securing duties, when not paid at the time of the entry, are all prescribed in this same 62d section. It may, in all cases above $50 in amount, be done by the bond of the importer with sureties. And upon all goods, except teas, by a like bond for the amount of duties, with a deposit of goods sufficient to pay such duties and expenses. And with respect to teas, a bond in double the amount of duties, with a deposit of the teas, according to the special regulations pointed out in the act. This appears to me to be the plain and obvious interpretation of this section of the law. And whenever the terms "duties secured" occur, as they do in various parts of the collection act, they embrace these different modes, unless penally restricted to one or the other, as they sometimes are.

To consider the deposit of teas in stores as done merely for safe keeping, and because the importer is not able to find personal securities for the duties, does not

strike me as being a just construction of this provision. If such had been the sole object, and possession retained by the government with no other view, that possession would, as in other cases where duties are not paid or secured at the time of entry, have been held exclusively by the revenue officers. Instead of which, the possession is held jointly by the importer and the inspector, at a store agreed upon between them, and under two locks, the key of one to be kept by the importer or his agent, and the key of the other by the inspector; so that all lawful interference with such deposit, until the expiration of two years, by one party, without the assent of the other, is rendered impracticable. All this shows an arrangement, with the concurrence of two parties, having the right and the power to act on the subject; and not the act of one, by reason of the inability of the other to avoid it. It is a course submitted by law to the option of the importer; and to say he was driven to it, on account of his inability to elect the other alternative, would seem rather more like aggravating his necessities, than fairly presenting to him an option, which necessarily implies the ability to choose. The construction I have given to the provision, is, in every respect, calculated for the security of the revenue, and the accommodation of the merchant. The inspector is required to attend at all reasonable times, to deliver out such parcels of teas as may be required, under the permit of the collector, on the duties being paid, or secured by bond, with sureties, which is to be accepted as a substitute for such parcels; by which the government