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of "prepared opium
subject to duty
by law, to wit, the duty of twelve cents per
pound," were held to sufficiently describe the
smuggled goods. Herc, as in the Dunbar
Case, the words of description made clear
to the common understanding what articles
were charged to have been smuggled; and,
for that reason, we hold the objection just
considered to be without merit.

Was the conviction under the second count
of the indictment proper?

and the boarding officers boarded just as she was coming into the dock. I then asked one of the custom inspectors to examine closely the baggage of one or two of the cabin pasengers, whom I suspected, to ascertain whether they had any large quantity of jew elry, after which I went into the chart room where the captain was with Special Agent Cummings."

What occurred in the chart room between the captain and the special agent of the Treasury Department is thus testified to by the captain:

"When I reached the port of Philadelphia, after the passengers were landed, two gentlemen entered my room, and they said they had information from Antwerp that I had a package to a friend to send it to Cincinnati. Î said right away, 'Yes.' I thought those gentlemen came for the package, and that they were sent by Mr. Keck, and naturally, on my part, I asked them who they were. They said they were Treasury agents, and said, 'Captain, that's a package of diamonds you have got, to be sent to Cincinnati,' and[441] if I didn't deliver it I would be arrested. After awhile I went down in my room and brought the package up and delivered it over to the Treasury agents. That's all that happened."

The special agent thus states what passed in the chart room:

The principal witness for the government was one Frank Loesewitz, a resident of Antwerp, Belgium, and captain of the steamer Rhynland, of the International Navigation Company, which vessel plied between Philadelphia and Liverpool. He testified, in substance, that on January 21, 1896, late in the afternoon, while at the residence of one Franz Von Hemmelrick, a jeweler in Antwerp, he for the first time met the accused; that in his company and that of Von Hemmelrick he went to a café in the neighborhood; that during the conversation which followed Von Hemmelrick took from his pocket a small package and handed it to the witness with the statement, made in the hearing of Keck, that it belonged "to that gentleman here" (Keck); that it did not contain any valuables, and Von Hemmelrick asked the witness to oblige him by taking it over to America. The captain further testified that Keck also said that the package did not contain any "I spoke of the weather and other topics, valuables. The witness asked Keck where he and then I said: 'Captain' to whom I was wished the package sent, whereupon he tore unknown-'you have a package for the Coeoff a piece of a card which was lying on the terman Diamond Company, the Coetermantable, and wrote on it the address of a person Keck Diamond Company, 24 West Fourth in Cincinnati, who, it subsequently destreet, Cincinnati, Ohio?' I repeated the veloped, was associated in the diamond busi- name of the company. He said, 'No; I have ness with Keck. The card and the package no such package.' I said, 'I beg leave to in question were produced in court and iden- differ with you;' and indicating with my tified by the witness. Subsequently, on leaving the place, Keck requested the witness to fingers, I said, 'You have a small package [440]send the package to Cincinnati from *Phila-said, 'I have a package for Van Reeth, of 21 which you received while in Antwerp. He delphia by Adams Express. There was no address upon the package, and the card handed by Keck to the witness was placed by him in his pocketbook or card case. Soon after, the witness crossed to Liverpool and joined his vessel there. The package was by him placed in a drawer in his (the captain's) room, where it remained undisturbed until the arrival of the ship at her dock in Philadelphia. Just as the vessel was approaching her moorings, a special agent of the Treasury Department boarded her. This special agent thus describes in his testimony what then en

sued:

"Acting on information received that, at the instance of Herman Keck, the captain of the Rhynland had endeavored to smuggle diamonds, I met the steamship Rhynland upon her arrival here on the eleventh day of last February, about four or five o'clock in the afternoon. I went aboard and examined the passenger list to see if Keck was on board, or anyone under that name, and I also examined the manifest to find if there was any diamonds. I found no one particularly on the passenger list corresponding to the name of Herman Keck, and no diamonds appeared on the manifest.

"The weather was very rough that day,'

West Fourth street, Cincinnati, Ohio, and I
will give it to you if you have an order for

it.'

"At that time, I understand you to say he did not know you were a Treasury agent?

"No, sir; I was unknown.

"Had you ever met him before?

"Never met him before to know him.
"I then said, 'Captain, I have an order for
them.' He said, 'Show me the order, and I
will go and get the package.' I replied,
Captain, I would like to see the package
first before delivering the order, and I want
to speak to you in private.'

"Was there anything on your clothes like
a badge or anything else to show what you
were?

"No, sir; none whatever. He was doing some writing at the time-I think finishing the log--and he asked me to wait until he finished, and I said, 'certainly.' After the lapse of about five minutes the captain arose and said, 'You remain here, and I can go and get the package.' As soon as the captain left the chart room I quietly and unperceived by him followed him, and saw him enter his room, and just as he emerged ho had a package in his hand. As soon as I

arose, were surrendered to the customs au-
thorities.

saw it I said, 'Captain, that is the package I want.' He said, 'Where is your order?' I produced my card as United States Treasury The United States, on the contrary, main[442]agent. *He refused to let me have it until I tains that the facts were sufficient to justiwas identified as a custom house officer. A fy a conviction for smuggling or clandestine young man (being) present at the conversa- introduction, as those words embrace all untion opposite the captain's room, who repre- lawful acts of concealment or other illegal sented the steamship company, we agreed to conduct tending to show a fixed intent to go back to the chart room, where I again in- evade the customs duty by subsequently passsisted on getting this package, and this ing the goods through the jurisdiction of the young man who represented the steamship customs officials without paying the duties company, who was present, advised the cap-imposed by law thereon. It is hence contain to give the package to me, which the tended by the prosecution that the crime of captain did." smuggling or clandestine introduction was complete if the acts of concealment were in existence when the vessel entered the waters of the United States, even although at such time the period for making entry and paying or securing the duties had not arisen, and even although subsequently and before or at the time when the obligation to make entry and pay duties arose the goods were delivered to the customs authorities.

The package referred to was found to contain five hundred and sixty-three cut diamonds of the value of about seven thousand dollars, which were subject to a duty of twenty-five per cent. The diamonds were subsequently sold under forfeiture proceedings instituted by the government, and no claimant for them appeared.

Exception was taken on behalf of the ac-
cused to the following instruction given by
the trial judge to the jury: "If the state-
ments made here under oath by Captain
Loesewitz respecting his receipt of the pack-
age of diamonds in Antwerp and bring
ing them here are true, the defendant is
guilty of the offense charged." An excep

tion was also noted to the refusal of
the court to direct the jury to return
a verdict of not guilty upon the sec-
ond count, and the questions reserved by
these two exceptions are pressed as clearly
giving rise to reversible error.

The contention on behalf of the accused is that there was error in refusing to instruct a verdict and in the instruction given as to the captain's testimony, because, even although all the acts of the captain of the Rhynland done in relation to the package of diamonds were believed by the jury to be imputable to Keck, they did not constitute the offense of smuggling within the intendment of the statute. At best, it is argued, the legal result of the testimony was to show only an unexecuted purpose to smuggle, a concealment of the diamonds on the ship, and a failure to put them on the manifest of the vessel, all of which, although admitted to be unlawful acts subjecting to a penalty and entailing forfeiture of the goods, were not, it is claimed, in themselves alone the equivalent of the crime of smuggling or '443]clandestine introduction which the indict ment charged. This crime, it is insisted, is a specific offense arising from the evasion of custom duty by introducing goods into the United States without making entry thereof and without paying or securing payment of the duties, and thus passing them beyond the line of the customs authorities, where the obligation to pay the duty arose, and is not, consequently, established by proving antecedent acts of concealment preparatory to the commission of the overt act of smuggling when these antecedent acts were not followed by the introduction of the goods into the United States, but where, on the contrary, the goods, before or at the time when the obligation to pay the duty

are:

The questions for determination, therefore,
fy the court in giving the instruction that
Did the testimony of the captain justi-
there was a legal duty to convict, if the jury
believed such testimony? and, Did the court,
admitting the testimony of the special agent
dict as requested?
to be true, err in refusing to instruct a ver-

tion 2865, Revised Statutes, which is as fol-
The charge of smuggling was based on sec-

lows:

fully, with intent to defraud the revenue of
"If any person shall knowingly and wil
introduce, into the United States, any goods,
the United States, smuggle, or* clandestinely[444]
wares, or merchandise, subject to duty by
law, and which should have been invoiced,
without paying or accounting for the duty,
or shall make out or pass, or attempt to pass,
through the custom house, any false, forged,
or fraudulent invoice, every such person, his,
her, or their aiders and abettors, shall be
deemed guilty of a misdemeanor, and on con-
viction thereof shall be fined in any sum not
exceeding five thousand dollars, or impris
oned for any term of time not exceeding two
years, or both at the discretion of the court."

This section in its complete state is but a reproduction of section 19 of the tariff act of August 30, 1842. 5 Stat. at L. 565, chap. 270. That portion of the section which made it an offense to smuggle or clandestinely introduce articles into the United States was omitted in the revision of 1874, but the act of February 27, 1877 (19 Stat. at L. 247, chap. 69), which recites that it was enacted "for the purpose of correcting errors and sup plying omissions in the revision," reinstated the omitted clause by an amendment to section 2865.

Whatever may be the difficulty of deducing solely from the text of the statute a comprehensive definition of smuggling or clandestine introduction, two conclusions arise from the plain text of the law: First. That whilst it embraces the act of smuggling or clandes tine introduction, it does not include mere attempts to commit the same. Nothing in the statute by the remotest possible implication can be found to cover mere attempts to com

mit the offense referred to. It was indeed argued at bar that as the concealment of goods at the time of entering the waters of the United States tended to render possible a subsequent smuggling, therefore such acts should be considered and treated as smuggling; but this contention overlooks the plain distinction between the attempt to commit an offense and its actual commission. If this premise were true, then every unlawful act which had a tendency to lead up to the subse quent commission of an offense would become the offense itself; that is to say, that one would be guilty of an offense without having done the overt act essential to create the offense, because something had been done which, [445]if* carried into further execution, might have constituted the crime. Second. That the smuggling or clandestine introduction of goods referred to in the statute must be without paying or accounting for the duty," is also beyond question.

mon law, and, in the absence of a particularized definition of its significance in the statute creating it, resort may be had to the common law for the purpose of arriving at the meaning of the word. Swearingen v. United States, 161 U. S. 446, 451 [40: 765, 766]; United States v. Wong Kim Ark, 169 U. S. 649 [42: 890].

Russell, in his work on Crimes (Vol I. p. 277, 6th English edition), thus speaks of the offense:

"Among the offenses against the revenue laws, that of smuggling is one of the principal. It consists in bringing on shore, or car. rying from the shore, goods, wares, or merchandise for which the duty has not been paid, or goods of which the importation or exportation is prohibited. An offense productive of various mischiefs to society."

This definition is substantially adopted from the opening sentence of the title "Smuggling and Customs" of Bacon's Abridgment, and in which, under letter F, it is further said:

"As the offense of smuggling is not complete unless some goods, wares, or merchandise are actually brought on shore or carried from the shore contrary to law, a person may be guilty of divers practices, which have a direct tendency thereto, without being guilty of any offense.

"For the sake of preventing or putting a stop to such practices, penalties and forfeit ures are inflicted by divers statutes; and indeed it would be to no purpose, in a case of this kind, to provide against the end without providing at the same time against the means of accomplishing it."

So, also, Blackstone defines smuggling to be "the offense of importing goods without paying the duties imposed thereon by the laws of the customs and excise." 4 Black. Com. 154. The words "importing without paying the duties" obviously implying the existence of the obligation to pay the duties at the time the offense is committed, and which duty to pay is evaded by the commission of the guilty act.

From the first of the foregoing conclusions it follows that mere acts of concealment of merchandise on entering the waters of the United States, however preparatory they may be and however cogently they may indicate an intention of thereafter smuggling or clandestinely introducing, at best are but steps or attempts not alone in themselves constituting smuggling or clandestine introduction. From the second, it results that as the words, "without paying or accounting for the duty" imply the existence of the obligation to pay on account at the time of the commission of the offense, which duty is evaded by the guilty act, it follows that the offense is not committed by an act done before the obligation to pay or account for the duties arises, although such act may indicate a future purpose to evade when the period of paying or securing the payment of duties has been reached. If this were not a correct construction of the statute, it would result that the offense of smuggling or clandestine introduction might be committed as to goods, although entry of such goods had been made and all legal duties had been paid before the goods had been unshipped. The soundness of the deductions A reference to the English statutes suswhich we have above made from the statute tains the statement of the textwriters above[467] is abundantly demonstrated by the line of quoted, that the words "smuggling" and argument which it has been necessary to ad-clandestine introduction," so far, at least, vance at bar to meet the dilemma which the as respected the introduction of dutiable contrary view necessarily involves. For, al- goods from without the Kingdom, signified though it was contended that the offense was the bringing of the goods on land, without complete the moment the concealment existed authority of law, in order to evade the paywhen the ship arrived within the waters of ment of duty, thus illegally crossing the line the United States, it was yet conceded that if of the customs authorities. Thus, in 1661, in legal time the duties were subsequently by statute 12 Car. II. chap. 4, sec. 2, dutiable paid or secured, there would have been no of goods were to be forfeited if brought into fense committed. But the contention and any port, etc., of the Kingdom and "unthe admission are completely irreconcilable, shipped to be laid on land" without payment since if the subsequent act becomes necessary of duties, etc. So, in 1710, by statute 8 in order to determine whether an offense has Anne, chap. 7, sec. 17, dutiable goods, "unbeen committed, it cannot in reason be said shipped, with intention to be laid on land" that the offense was complete and had been without the payment of duties, etc., were to committed before the subsequent and essen- be forfeited, treble the value of the goods was tial act had taken place. to be forfeited by those concerned in such unshipping, and the vessels and boats made use of "for landing" were also to be forfeited. In 1719, by statute 5 Geo. I. chap. 11, entitled "An Act against the Clandestine Running of Uncustomed Goods, and for the More

[446] *These conclusions arising from a consideration of the text of the statute are rendered yet clearer by taking into view the definite legal meaning of the word smuggling. That term had a well understood import at com

about the successful smuggling of the goods,
and so defraud the revenue and cause injury
to honest traders. Hence it is, that al-
though the statute law of England made it
landing of the goods within the Kingdom in
violation of law, Parliament sought to pre-
vent its commission, not by the specific pun-
ishment of smuggling, but by legislation
aimed at all acts which could precede or fol-[449].
low the consummation of the unlawful land-

utes establish, not only what was meant by
smuggling, but, to use the language of Bacon,
also make it certain that provision against
the "end," smuggling, was made by the en-
actment of numerous distinct and separate
offenses "against the means of accomplishing
it."

Effectual Prevention of Frauds Relating to
the Customs," provision was made in the
fourth section for the seizure and forfeiture
of goods concealed in ships from foreign parts
"in order to their being landed without pay-clear that smuggling was the clandestine
ment of duties;" and in section 8 ships of a
certain burden, laden with customable and
prohibited goods, hovering on the coasts
"with intention to run the same privately on
shore," might be boarded, and security ex-
acted against a violation of the laws. In
1722, by statute 8 Geo. I. chap. 18, a forfeiting of the goods. In other words, the stat
ure of twenty pounds was imposed upon those
receiving or buying any goods, etc., "clan-
destinely run or imported," before legal con-
demnation thereof, knowing the goods to
have been clandestinely run or imported into
the Kingdom; while in 1736, by statute 9
Geo. II. chap. 31, sec. 21, watermen, etc., em-
ployed in carrying goods, "prohibited, run, This theory upon which the English law
or clandestinely imported," and found in rested is indicated by a statute enacted in
possession of the same, were to forfeit treble 1558, 1 Eliz. chap. 11. The statute contained
the value of the same; and by section 23 of twelve sections, and provided specific and
the same statute penalties were provided to distinct penalties for various acts tending
remedy the evil recited in the preamble of to lead up to the carrying from English soil
unshipping goods at sea, without the limits of goods prohibited to be exported, and the
of any port, "with intent to be fraudulently introduction by clandestine landing of goods
landed in this Kingdom." In 1786, by stat-prohibited to be imported or of customable
ute 26 Geo. III. chap. 40, sec. 15, bond was goods without the payment of duties thereon.
required to be given by the master and mate Numerous provisions of the same nature are
[448] of a vessel before clearing the vessel for for- contained in a statute, consisting of thirty.
eign parts, not "to land illegally any goods, eight sections, enacted in 1662, 13 and 14
or take on board any goods with that intent." Car. II. chap. 11. Other statutes may be
In 1763, by statute 3 Geo. III. chap. 22, the found referred to in 6 Geo. IV. (1825) chap.
object of the statute, as recited in the title, 105, which specifically and separately refers
was, among other things, "for the prevention to 442 statutes, and repeals so much and
of the clandestine running of goods into any such parts thereof "as relates to the trade
part of his majesty's dominions;" while the and navigation of this Kingdom or to the
preamble of the first section recited the ad- importation and exportation of goods, wares,
visability of increasing the share of customs and merchandise, or as relates to the collec
and excise officers in forfeited goods so that tion of the revenue of customs or prevention
they should have "equal encouragement to of smuggling."
be vigilant in the execution of their duty, The distinction between smuggling-the
to suppress the pernicious practice of smug- ultimate result-and the various means by
gling;" and in the fourth section, "for the which it might be accomplished or by which
more effectual prevention of the infamous its accomplishment could be made beneficial,
practice of smuggling," provision was made is aptly shown by the recital of a statute en-
looking to the proper distribution among the acted in 1736 (9 Geo. II. chap. 35), by which
officers and seamen of public vessels and all penalties and forfeitures were remitted
ships of war of the moiety allowed of the which had before a date named in the act been
proceeds of goods, etc., seized and condemned. incurred "in, by or for the clandestine run-
The statutes just referred to and cognate ning, landing, unshipping, concealing, or re-
statutes make it clear, as said above in the ceiving any prohibited goods, wares, or mer
passage cited from Bacon's Abridgment, al-chandise, or any foreign goods liable to the
though they contained no express penalty payment of the duties of customs and excise,
for smuggling eo nomine, that the aim was or either of them, and who are or may be
to prevent smuggling, and that to accomplish
this result every conceivable act which might
lead up to the smuggling of dutiable goods,
that is, their actual passage through the
lines of the custom house without paying the
duty, and every possible act which could fol-
low the unlawful landing, was legislated
against, and each prohibited act made a dis-
tinct and separate offense, entailing in some
cases forfeiture of goods and in others pe-
cuniary penalties and criminal punishments,
the forfeitures and punishments varying in
nature and extent according as it was deemed
that the particular offense to which they
were applied was of minor or a heinous
character (such as armed resistance to cus-
toms officers), or was calculated to bring

subject to any information or other prosecu
tion whatsoever for the duties of such goods,
or for the penalties for the running, landing,
unshipping, concealing, or receiving thereof,"
as also for many other offenses specifically
enumerated which had been enacted with the
object of preventing the illegal exportation [450]
of goods or the importation of prohibited
goods or the illegal landing of customable
goods. And it is highly suggestive to ob-
serve that the modern English statutes serve
but to make clear the purport of the English
revenue laws from the beginning concerning
the smuggling of dutiable goods. By the
statute of 1876 to consolidate the customs
laws (39 and 40 Vict. chap. 36), in a sub-
division headed, "As to the restrictions on

small craft and the regulations for the prevention of smuggling," it was made a specific offense, by section 186, to "import or bring, or be concerned in importing or bring. ing into the United Kingdom any prohibited goods, or any goods the importation of which is restricted, contrary to such prohibition or restriction, whether the same be unshipped or not." While the bringing of dutiable goods within the jurisdiction of Great Britain, that is, into the waters of the Kingdom, with an intent to smuggle or clandestinely introduce the same, was not declared to be punishable, but in the same section, immediately following the quoted clause, it was made an offense to "unship, or assist or be otherwise concerned in the unshipping of any goods liable to duty, the duties for which have not been paid or secured." In other words, this statute demonstrates that where goods might by law be introduced into the Kingdom on paying duties, a violation of the obligation to pay the duties was not committed by the mere entry of the ves sel into the waters of the Kingdom before the period for the payment or securing the payment of the duties had arisen.

A review of the principal statutes enacted in this country regulating the collection of customs duties establishes that so far as they embraced legislation designed to prevent the evasion of duties they proceeded upon the theory of the English law on the same subject, that is, that they forbade all the acts which were deemed by the lawmaker means to the end of smuggling or clandestinely introducing dutiable goods into the country in violation of law, and which were likewise considered as efficient to enable the offender to reap the expected benefits of his wrongful acts. Therefore, they forbade and prescribed penalties for everything which [451]could precede smuggling or follow it, without specifically making a distinct and separate offense designated smuggling or clandestine introduction.

The act of July 31, 1789, chap. 5 (1 Stat. at L. 29), was entitled "An Act to Regulate the Collection of the Duties Imposed by Law on the Tonnage of Ships or Vessels and on Goods, Wares and Merchandises Imported into the United States." The act consists of forty sections, and, among other things, establishes ports of entry and delivery. By section 10 masters of vessels from foreign ports were required to deliver a manifest of the cargo to any officer who should first come on board; by section 11 the master, etc., was required within forty-eight hours after arrival of the vessel within any port of the United States, etc., to make entry, and also make oath to a manifest, and a forfeiture of $500 was imposed for each refusal or neglect; by section 12 goods unladen in open day or without a permit-except in case of urgent necessity-subjected the vessel, if of the value of $400, and the goods, to forfeiture, and the master or commander of the vessel "and every other person who shall be aiding or assisting in landing, removing, housing, or otherwise securing the same" were to forfeit and pay $400 for each

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offense, and were disabled for the term of seven years from holding any office of trust or profit under the United States; by section 22 goods fraudulently entered by means of a false invoice were to be forfeited; by section 24 authority was given to customs officials to make search of ships or vessels, dwelling houses, etc., for dutiable goods suspected to be concealed, which when found were to be forfeited; by section 25 persons concealing or buying goods, wares, or merchandise, knowing them to be liable to seizure under the statute, were to "forfeit and pay a sum double the value of the goods so concealed or purchased;" and by section 40 dutiable goods of foreign growth or manufacture brought into the United States except by sea and in certain vessels and landed or unladen at any other place than where permitted by the act, were to be forfeited, together with the vessels conveying them; and it was further provided that "all goods, wares and merchandises brought into the United States by land contrary to this act [452] should be forfeited, together with the carriages, horses, and oxen that shall be employed in conveying the same."

The act of August 4, 1790, chap. 35 (1 Stat. at L. 145), consists of seventy-five sections, and repealed the act of 1789, chap 5. The act was entitled "An Act to Provide_More Effectually for the Collection of the Duties Imposed by Law on Goods, Wares, and Merchandise Imported into the United States, and on the Tonnage of Ships or Vessels." The provisions of the prior act were substantially re-enacted. Further offenses were also defined, some of which only will now be referred to. Thus, by section 10, when imported goods were omitted from or improperly described in a manifest, the person in command of the vessel was subjected to a forfeiture of the value of the goods so omitted; by section 12 a penalty of not to exceed $500 was declared for the failure, on arrival within 4 leagues of the coast, etc., to produce upon demand to the proper officer a manifest and furnish a copy of the same, or to refuse to give an account of or to make a false statement as to the destination of the ship or vessel; by section 13 a penalty of $1,000 and forfeiture of goods was authorized for unlading goods before a vessel should come to the proper place for the discharge of her cargo and until the unshipping had been duly authorized by a proper officer of the customs; by section 14 vessels in which goods were so unladen were subjected to forfeiture and the master was to forfeit treble value of the goods; by section 28 goods requiring to be weighed or gauged in order to ascertain the duties due thereon, if removed from the wharf or place upon which landed, without permission, were subjected to forfeiture; by section 30 inspectors were authorized to be kept on board of vessels until they were unladen, and among other duties specified enjoined upon such inspectors was one that they were not to "suffer any goods, wares, or merchandise to be landed or unladen from such ship or vessel without a proper permit for that purpose:" by section 66 mas

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