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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

Effectual Prevention of Frauds Relating to about the successful smuggling of the goods, the Customs," ," provision was made in the and so defraud the revenue and cause injury fourth section for the seizure and forfeiture to honest traders. Hence it is, that alof goods concealed in ships from foreign parts though the statute law of England made it "in order to their being landed without pay- clear that smuggling was the clandestine ment of duties;" and in section 8 ships of a landing of the goods within the Kingdom in certain burden, laden with customable and violation of law, Parliament sought to preprohibited goods, hovering on the coasts vent its commission, not by the specific pun"with intention to run the same privately on ishment of smuggling. but by legislation shore," might be boarded, and security ex- aimed at all acts which could precede or fol-[449]. acted against a violation of the laws. In low the consummation of the unlawful land1722, by statute 8 Geo. I. chap. 18, a forfeiting of the goods. In other words, the stature of twenty pounds was imposed upon those utes establish, not only what was meant by receiving or buying any goods, etc., "clan-smuggling, but, to use the language of Bacon, destinely run or imported," before legal condemnation 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-it." 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 enlooking 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 runThe statutes just referred to and cognate ning, landing, unshipping, concealing, or restatutes 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 subject to any information or other prosecuthis result every conceivable act which might tion whatsoever for the duties of such goods, lead up to the smuggling of dutiable goods, or for the penalties for the running, landing, that is, their actual passage through the unshipping, concealing, or receiving thereof," lines of the custom house without paying the as also for many other offenses specifically duty, and every possible act which could fol- enumerated which had been enacted with the low the unlawful landing, was legislated object of preventing the illegal exportation [450] against, and each prohibited act made a dis-of goods or the importation of prohibited tinct and separate offense, entailing in some goods or the illegal landing of customable cases forfeiture of goods and in others pe- goods. And it is highly suggestive to obcuniary penalties and criminal punishments, serve that the modern English statutes serve the forfeitures and punishments varying in but to make clear the purport of the English nature and extent according as it was deemed revenue laws from the beginning concerning that the particular offense to which they the smuggling of dutiable goods. By the were applied was of minor or a heinous statute of 1876 to consolidate the customs character (such as armed resistance to cus- laws (39 and 40 Vict. chap. 36), in a subtoms officers), or was calculated to bring 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 vessel 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

ters of vessels or others who should take a false oath were made liable to a fine of $1,000 and to be imprisoned for not exceeding twelve months; and by section 23 mani[453) fests under oath were required to be furnished by vessels bound to a foreign port, and the person in charge of the vessel departing without so clearing was to forfeit $200.

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The requirements as to the production of invoices upon entry of goods subject to an ad valorem duty were supplemented by acts of April 20, 1818, chap. 79 (3 Stat. at L. 433), and March 1, 1823, chap. 21 (Id. 729), which later statute was enacted to take the place of the former, then about to expire by limitation. Original invoices were required to be furnished as a prerequisite to an entry; The act of March 2, 1799, chap. 22 (1 Stat. specific provisions were enacted as to the at L. 627), was entitled "An Act to Regu- manner of making entry; in the case of nonlate the Collection of Duties on Imports and residents, invoices were required to be veriTonnage." It consisted of 112 sections, re-fied by the oath of the owner, unless such repealed the act of 1790, chap. 35, and sub- quirement was dispensed with by the Secre stantially re-enacted the provisions of that tary of the Treasury; and the appointment act, though amplifying those provisions, par- of appraisers was provided for and the proticularly by the insertion of forms of mani- cedure by which the true value of goods was fests, entries, certificates, etc. By section to be determined set forth; and a number of 32 the master in charge of a vessel in which offenses relating to the subject declared. had been brought goods destined for a foreign port was required, before departing from the district in which he first arrived, to give bond "with condition that the said goods, wares, or merchandise, or any part thereof, shall not be landed within the United States unless due entry thereof shall have been first made, and the duties thereupon paid, or secured to be paid according to law." In section 46 provision was made for the entry of baggage and mechanical implements, which were exempted from duty, and for the examination of such baggage; the section ending as follows:

that whenever

When the act of 1842, heretofore referred to, was enacted, the provisions of the acts of 1799, as amended or supplemented by the act of 1823, were, in the main, in force, as they still are.

As we have seen, it was not until 1842 that a specific penalty for smuggling or clandestine introduction, eo nomine, was enacted. When the significance of the word "smuggling," as understood at common law, is borne in mind, and the history of the English legislation. is considered and the development of our own is brought into view, it be

comes manifest that the statute of 1842 was "And provided, not intended to make smuggling embrace any article or articles subject to duty, accord- each or all of the acts theretofore prohibited ing to the true intent and meaning of this which could precede or which might follow act, shall be found in the baggage of any per-smuggling, and which had been legislated [455] son arriving within the United States, which shall not, at the time of making entry for such baggage, be mentioned to the collector before whom such entry is made, by the person making the same, all such articles so found shall be forfeited, and the person in whose baggage they shall be found shall, moreover, forfeit and pay treble the value of

such articles."

This proviso, it may be stated, has ever since remained on the statute books, being

now section 2802 of the Revised Statutes.

against by the imposition of varying penalties; in other words, that it had not for its purpose to cause the means to become the end, against the means leading up to smuggling, but to supplement the existing provisions or which might render it beneficial, by a substantive and criminal statute separately providing for the punishment of the overt act of passing the goods through the lines of the customs authorities without paying or securing the duties; that is, the statute was intended not to merge into one and the same offense all the many acts which had been previously classified and punished by different penalties, but to legislate against the overt makes clear why it was that the statute of act of smuggling itself. And this view 1842 related, not generally to acts which precede smuggling or which might follow it, but to the concrete offense of smuggling alone. That this was the purpose which controlled the enactment of the act is cogently manifested by the use of the words "clandestinely introduce," since they, in the common law, were synonymous with smuggling. Indeed, in the English statutes the word "smuggling" and clandestine importation, clandestine running and landing, were constantly made use of, one for the other, as purely convertible terms, all relating to the actual passing of the goods across the line where the obligation to pay the duty existed, and which passing could not be accomplished except in defiance of the duty which the law imposed. The inference that the common-law meaning of the word "smuggling" is to be implied is cogent33

By sections 49 and 62 of the act of 1799, entry was required to be made and duties paid or secured to be paid before permission to land goods, wares, and merchandise should be granted; by section 103, provision was made as to vessels and packages in which certain articles were thereafter to be imported, a violation to entail a forfeiture of [454]the vessel and goods; by section 105 and succeeding sections authority was given to import goods and merchandise into districts established and to be established on the northern and northwestern boundaries of the United States, and on the rivers Ohio and Mississippi, "in vessels or boats of any burthen, and in rafts or carriages of any kind or nature whatsoever;" and like report was to be made, like manifests furnished, and entry made as in the case of goods imported into the United States in vessels from the sea, and, except as specially provided in the act, such importations were to be subject to like regulations, penalties, and forfeitures as in other districts. 172 U. S.

U. S., Book 43.

512

case of smuggling in which any concealment on board the vessel was relied on by the gov ernment. The gist of the offense is the evasion or attempted evasion of the duties, and they, to be sure, are due when the vessel arrives; but they are not payable until some which is the fraud, or in omitting the acts which immediately precede the payment.

A bringing on shore without making entry, etc., is part of the importation or introduction of the goods, and makes it illegal."

ly augmented by the fact that the statute | cealment about it. I have never known also uses in connection with it words generally known in the law of England as a paraphrase for smuggling. In reason this is tantamount to an express adoption of the common-law signification. Moreover, this view is fortified by the concluding portion of the statute, which supplements the smug-time after, and it is the default in paying gling or clandestine introduction, by imposing a similar penalty upon every person who "shall make out or pass, or attempt to pass, through the custom house, any false, forged, or fraudulent invoice;" all of which were acts connected with the actual entry of the goods, It was earnestly contended in the argument which, if the object intended to be accom- at bar that the successful administration of [456]plished was effected, would result in the suc- the revenue laws would be frustrated unless cessful introduction of the goods into the the pains and penalties of smuggling be held country, without payment, in part at least, to be applicable to all unlawful acts anteceof the duties required by law. This rela-dent to the actual introduction of the goods tion of the act of 1842 to the then existing into the United States. But this argument legislation and the remedy intended to be ac- amounts only to the contention that by an complished thereby were referred to and act of judicial legislation the penalties for elucidated by the court in United States v. smuggling should be made applicable to a Sixty-seven Packages of Dry Goods, 17 How. vast number of unlawful acts not brought 85 [15:54]. In that case, after observing within the same by the law-making power. that the provision making criminal the pass- And the result would be to control all acts ing or attempting to pass goods through the done in violation of the revenue laws by a custom house by means of false, forged, or highly penal criminal statute, although the fraudulent invoices (now a part of section law has classified them into many distinct of2685) was manifestly directed against the fenses according to their gravity, and improduction and use of simulated invoices and posed different penalties in one case than in those fraudulently made up for the purpose others. of imposing upon the officers in making the entry, the court said (p. 93) [15:55]:

"The whole scope of the section confirms this view. It first makes the smuggling of dutiable goods into the country a misdemeanor; and, secondly, the passing or attempt to pass them through the custom house, with intent to defraud the revenue, by means of false, forged, or fraudulent invoices. The latter is an offense which, in effect and result, is very much akin to that of smuggling, except done under color of conformity to the law and regulations of the customs."

It was then, therefore, in effect declared that the smuggling or clandestine introduction of dutiable goods into the United States with intent to defraud the revenue of the United States, against which the act of 1842 provided, was an act committed by passing the goods in defiance of and without conformity to the laws and regulations of the customs, or by preparing, attempting, or actually passing the same through the custom house by means of false or fraudulent in

Voices.

The fact that the smuggling or clandestine introduction into the United States referred to in the act of 1842 had substantially the foregoing significance is also shown by the case of United States v. Jordan, 2 Low. Dec. 537 (1876), where Lowell, J., in considering the act of 1842 and other statutes, said:

"Under the statutes, smuggling, or bringing in, or introducing goods, has been held by both the circuit and district courts for this district for a long course of years to be proved by evidence of the secret landing of [457]goods without paying or* securing the duties, which, according to the argument here. would be quite inadmissible if the importation in the sense contended for had no element of con

The contention that because the portion of the act of 1842, now found in section 2865, was omitted in the revision, and was only reenacted in 1877, therefore its language should be given a wider meaning than was conveyed by the same words when used in the act of 1842, is without merit. When the re-enactment took place the act of 1842 in the particular in question had been considered by this court, and had been enforced in the lower courts as having a specific purpose and meaning. The re-enactment without change of phraseology, by implication, carried the previous interpretation and practice with it. Indeed, the re-enactment of the provisions of the act of 1842 is the best indication of the judgment of Congress that the* portion of the[458] statute restored should not have been dropped in the revision, and that its meaning should stand as though it had never been so omitted, but had always continued to exist.

It is settled that the rate of customs duty to be assessed is fixed by the date of importation, and is not to be determined by the time when entry of the merchandise is made. But this throws no light on the meaning of the word "smuggling," since that word, both at common law and under the text of the acts of Congress, is an act by which the goods are introduced without paying or securing the payment of the duties, and hence concerns, not the mere assessment of duty, but the evasion of a duty already assessed, by passing the line of the customs authorities in defiance of law.

There remains only one further contention for consideration, that is, the assertion that whatever may have been the meaning of the term "smuggling" at common law, and its significance at the time when the statute of 1842 was adopted, that that word

as now found in section 2865 of the Revised | arose, that the offense of smuggling was not Statutes is to have a more far-reaching sig- committed within the meaning of the stat nificance, because it must be interpreted by ute, and therefore that the court erred in inthe meaning affixed to the word in section structing the jury that if they believed the 4 of the anti-moiety act of June 22, 1874 (18 testimony of the captain they should conStat. at L. 186, chap. 391). The section re- vict the defendant, and in refusing the relied on is as follows: quested instruction that the jury upon the whole testimony should return a verdict for the defendant. This conclusion renders un-[460] necessary a consideration of the other questions of alleged error discussed in the argument at bar.

The judgment must therefore be reversed, and the case remanded, with directions to set aside the verdict and grant a new trial.

"Sec. 4. That whenever any officer of the customs or other persons shall detect and seize goods, wares, or merchandise in the act of being smuggled, or which have been smuggled, he shall be entitled to such compensation therefor as the Secretary of the Treasury shall award, not exceeding in amount one half of the net proceeds, if any, resulting from such seizure, after deducting all duties, costs and charges connected therewith: Provided, That for the purposes of this act smuggling shall be construed to mean the act, with intent to defraud, of bringing into I find myself unable to concur in the opinthe United States, or, with like intent, at-ion of the court in this case, and particularly tempting to bring into the United States, in a definition of smuggling, which requires dutiable articles without passing the same, that the goods shall be actually unladen and or the package containing the same, through carried upon shore. the custom house, or submitting them to the officers of the revenue for examination."

*Mr. Justice Brown, with whom were the [460] CHIEF JUSTICE, Mr. Justice Harlan and Mr. Justice Brewer, dissenting:

This definition rests only upon the authority of Hawkins' Pleas of the Crown (A. D. It suffices to say in answer to this conten- 1716), repeated in Bacon's Abridgment (A. 9]tion that if the anti-moiety act had the D. 1736), and copied into Russell on Crimes meaning claimed for it, by the very terms of (A. D. 1819), and Gabbet's Criminal Law, a that act such meaning was restricted to "the work but little known. The diligence of purposes" of that act alone. That statute counsel has failed to find support for it in a had in view the reward to be reaped by in- single adjudicated case in England or this formers under the revenue laws of the Unit-country. If it were ever the law in England, ed States, and the words, "for the purposes of this act," can in reason only be construed as contemplating a more enlarged construction of the word "smuggling," for the purpose of stimulating efforts at detecting offenders against the revenue laws, and cannot be held applicable, in the absence of the clearest expression by Congress of a contrary intent, to a different and criminal statute. Indeed, if the word "smuggling"

dictionaries, either general or legal, and has it never found a lodgment in its standard never been recognized as such by writers upstated. It was never treated as the law in on criminal law, with the exceptions above America. The truth seems to be that smug. gling en nomine was formerly, whatever it may be now, not a crime in England, but a large number of acts leading up to an unlawSmuggling appears to have been rather a ful unlading of goods were made criminal. in the act of 1842 embraced, as asserted, every unlawful act which might lead up to popular than a legal term, and the fact that smuggling, then the explanatory words found it was usually accompanied by the landing in the anti-moiety act would be wholly su- nition made use of by Bacon and Hawkins. of goods on shore may have led to the defiperfluous. Their insertion in the statute was evidently, therefore, a recognition of the Indeed, in all the old English statutes cited fact that smuggling had at the time of the that the ultimate object of all smugglers is in the opinion of the court it is recognized passage of the anti-moiety act a defined le-to get their goods ashore without payment gal and restricted significance, which it was the intent of Congress to enlarge for a particular purpose only, and which enlargement would be absolutely without significance if the term before such enlargement had meant exactly what Congress took pains to state it

intended the word should be construed as meaning for the exceptional purposes for which it was legislating.

of duties.

unlading and carriage of the goods to the If, as stated by these authors, the actual shore were an essential ingredient of the offense, it is somewhat singular that it should have escaped* the notice of so learned a writer [40 13 as Sir William Blackstone, who defines it, in accordance with the views of the other writers upon the subject, as "the offense of Examining the case made by the record, in importing goods without paying the duties the light of the foregoing conclusions, it re-imposed thereon by the laws of the customs sults that, whether we consider the testimony of the captain alone or all the testimony contained in the record, as it unquestionably establishes that there was no passage of the packages of diamonds through the lines of the customs authorities, but that on the contrary the package was delivered to the customs officer on board the vessel itself, at a time when or before the obligation to make entry and pay the duties

and excise." 4 Black. Com. 154. Dr. John-
son, with his customary disregard of conven-
tionalities, defines the verb "to smuggle" as
"to import or export goods without paying
the customs," and a smuggler as "a wretch
who, in defiance of justice and the laws, im-
ports or exports goods, either contraband or
without paying the customs." In Burns's
Law Dictionary (1792) smugglers are said
to be "those who conceal prohibited goods

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