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 exceed ing 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. 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; specific provisions were enacted as to the manner of making entry; in the case of nonresidents, invoices were required to be veriquirement was dispensed with by the Secretary of the Treasury; and the appointment of appraisers was provided for and the procedure by which the true value of goods was to be determined set forth; and a number of offenses relating to the subject declared. 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. The act of March 2, 1799, chap. 22 (1 Stat. at L. 627), was entitled "An Act to Regulate the Collection of Duties on Imports and Tonnage." It consisted of 112 sections, re-fied by the oath of the owner, unless such repealed the act of 1790, chap. 35, and substantially re-enacted the provisions of that act, though amplifying those provisions, particularly by the insertion of forms of manifests, entries, certificates, etc. By section 32 the master in charge of a vessel in which 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: "And provided, . any article or articles subject to duty, according to the true intent and meaning of this act, shall be found in the baggage of any person 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." that whenever This proviso, it may be stated, has ever since remained on the statute books, being now section 2802 of the Revised Statutes. 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. 33 As we have seen, it was not until 1842 that a specific penalty for smuggling or clanWhen the significance of the word "smugdestine introduction, eo nomine, was enacted. gling," as understood at common law, is borne in mind, and the history of the English legislatior. is considered and the development of our own is brought into view, it becomes manifest that the statute of 1842 was not intended to make smuggling embrace each or all of the acts theretofore prohibited which could precede or which might follow smuggling, and which had been legislated [455] 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 cogent 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. "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 Treas ury 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 the United States, or, with like intent, attempting to bring into the United States, dutiable articles without passing the same, or the package containing the same, through the custom house, or submitting them to the officers of the revenue for examination." The judgment must therefore be reversed, and the case remanded, with directions to set aside the verdict and grant a new trial. *Mr. Justice Brown, with whom were the [460] CHIEF JUSTICE, Mr. Justice Harlan and Mr. Justice Brewer, dissenting: I find myself unable to concur in the opinion of the court in this case, and particularly in a definition of smuggling, which requires that the goods shall be actually unladen and carried upon shore. 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 dictionaries, either general or legal, and has it never found a lodgment in its standard of this act," can in reason only be construed as contemplating a more enlarged construc- never been recognized as such by writers uption of the word "smuggling," for the pur- stated. It was never treated as the law in on criminal law, with the exceptions above pose of stimulating efforts at detecting of America. The truth seems to be that smug fenders against the revenue laws, and cannot be held applicable, in the absence of the gling eo nomine was formerly, whatever it clearest expression by Congress of a con- may be now, not a crime in England, but a trary intent, to a different and criminal large number of acts leading up to an unlawstatute. Indeed, if the word "smuggling Smuggling 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 of goods on shore may have led to the defiit was usually accompanied by the landing in the anti-moiety act would be wholly su-nition made use of by Bacon and Hawkins. perfluous. Their insertion in the statute Indeed, in all the old English statutes cited was evidently, therefore, a recognition of the in the opinion of the court it is recognized fact that smuggling had at the time of the that the ultimate object of all smugglers is passage of the anti-moiety act a defined le-to get their goods ashore without payment gal and restricted significance, which it was of duties. 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. If, as stated by these authors, the actual unlading and carriage of the goods to the shore were an essential ingredient of the offense, it is somewhat singular that it should have escaped the notice of so learned a writer [46] 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 testi- and excise." 4 Black. Com. 154. Dr. Johnmony of the captain alone or all the testi-son, with his customary disregard of convenmony contained in the record, as it unques- tionalities, defines the verb "to smuggle" as tionably establishes that there was no pas-"to import or export goods without paying sage of the packages of diamonds through the customs," and a smuggler as "a wretch 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 who, in defiance of justice and the laws, im- and defraud the King of his customs on the time of the commission of the offense, which seacoast by running of goods and merchan- duty is evaded by the guilty act, it follows uise." In Brown's Law Dictionary (Eng. that the offense is not committed by an act 1874), smuggling is defined as "importing done before the obligation to pay or account goods which are liable to duty so as to evade for the duties arises, although such act may payment of duty;" and in McClain's Crim- indicate a tuture purpose to evade when the inal Law (§ 1351), as importing dutiable period of paying or securing the payment of goods without payment. There are similar duties has been reached. It follows from definitions in the Encyclopædic and also in this that if, as is the custom upon the arrival the Imperial Dictionary. In the Encyclo- of trans-Atlantic steamers, a passenger's pædia Britannica, "smuggling" is said to de- baggage is landed upon the wharf, and the note "a breach of the revenue laws, either by trunks are filled with goods clandestinely the importation or the exportation of pro- imported, the owner cannot be convicted of hibited goods, or by the evasion of customs smuggling them under this statute, since the duties on goods liable to duty;" and Stephen, obligation to pay the duties upon them does in his Summary of the Criminal Law, page not arise until an attempt is made to carry 89, defines smuggling as the "importing or them off the wharf. *In my view the act of [463] exporting of goods without paying the duties smuggling is complete when the goods are imposed thereon by the laws of customs and brought within the waters of a certain port, excise, or of which the importation or expor- with intent to land them without payment tation is prohibited." Similar definitions of duties. Whether, if the duties be subare given by Lord Hume in his Commentaries sequently paid, such payment would be a on the Laws of Scotland, as well as in Bell's condonation of the offerse is a question upon Dictionary of Scottish Law, page 225. In which it is unnecessary to express an opinion. Tomlin's Law Dictionary, where smuggling It might depend upon the motives which inis defined as "the offense of importing or ex- duced the importer to pay the duties. If they porting goods without paying the duties im- were paid after detection, it might not be posed thereon by the custom or excise laws," considered sufficient; if before detection it a list of some thirty or forty acts connected would be strong evidence of a change of purwith the unlawful and fraudulent importa-pose. If the testimony of the captain in this tion of goods is given, but in none of them case is to be believed, he brought the package is the word "smuggle" mentioned as an of- of diamonds into port wholly ignorant of the fense. In the sixth edition of his work on fact that it contained dutiable articles. DeCrimes, Sir William Russell gives as his au- fendant himself was not on board the steamthority for the definition Hawkins, Bacon, er, but took passage on another ship to arand Blackstone, the last of whom is against rive later at another port, thus putting it him, and also sets forth a large number of out of his power to pay or account for the [462]acts "for the prevention of smuggling," duty. The guilty intent with which the passed during the present reign, none of which mention the word "smuggle" as a dis-package was delivered in Antwerp to an in tinct crime. Indeed, the word seems to be a popular summing up of a large number of offenses connected with the clandestine introduction of goods from foreign ports. nocent party for transportation to this country must be held to have continued, since defendant had deliberately deprived himself of any locus penitentia by handing the package to the captain for transportation and delivery. But conceding all that is claimed as to the But we think it is unnecessary to look belaw of England in that particular, the ques-yond the language of the statute itself to detion is not, what was the law of England termine what is meant by the word "smugduring the last century, nor what it is today, but what was the law of the United gle," since it is there defined as the clandesStates in 1842, when this act was passed, and tine introduction into the United States of in 1877, when it was incorporated in the Re- to duty by law, and which should have been "any goods, wares, or merchandise subject vised Statutes? If we are to rely for a defiinvoiced, without paying or accounting for nition upon our lexicographers and legal the duty." If the words "clandestinely ingrammarians, there can be no doubt upon troduce" are not intended as a definition of the subject, as by Webster, Worcester, the Century, and the Standard Dictionaries, and the prior word "smuggle," they are intendin all the law lexicons, the offense is defined ed as a separate offense, and in either case in somewhat varied phraseology as the clan- the defendant would be liable if he clandes destine importation of goods without the pay or accounting for the duty thereon. What, tinely introduced the goods without paying thority, except the dictum of Judge Lowell then, is meant by a clandestine introduction? in United States v. Jordan, 2 Low. Dec. 537, In at least two cases in this court (United States v. Vowell, 5 Cranch, 368, [3: 128]; to the contrary. Arnold v. United States, 9 Cranch, 104, [3: 671]) an "importation" to which the government's right to duty attaches was defined to be an arrival within the limits of some port of entry. Or, as stated by Mr. Justice Curtis in United States v. Ten Thousand Cigars, 2 Curt. C. C. 436, an importation is complete when the goods are *brought[464] within the limits of a port of entry, with the intention of unlading them there." A ment of duties. I know of no American au It would seem from that case and from cer tain expressions in the opinion of the court in the case under consideration, that the offense is not complete even when the goods are unladen and put upon the shore, and that a failure to pay duty upon them is a necessary element to justify an indictment, or that, as the words "without paying or accounting for the duty" imply the existence of the obligation to pay or account at the similar definition of an importation is given | lieving that they include an importation of CHAPPELL CHEMICAL & FERTILIZER v. GINIA. (See S. C. Reporter's ed. 465-471.) Federal question. When the decision of a state court rests upon grounds other than those dependent upon a Federal question, it is not reviewable here, although a Federal question was also raised in the state court. Such being the meaning of the word "import," a clandestine importation would be the bringing of goods into a port of entry with design to evade the duties. Should a narrower meaning be given to the words SULPHUR MINES COMPANY OF VIR"clandestinely introduce?" I think not. The word "introduce" would strike me as entitled to an even broader meaning than the word "import." To introduce goods into the United States is to fetch them within the jurisdiction of the United States, or at least within some port of entry, and the requirement that they should be unladen or brought on shore is to import a feature which the ordinary use of language and the object of the act does not demand. If the construction of the words "clandestinely introduce" adopted by the court be the correct one, it would follow that a vessel loaded Argued December 16, 1898. Decided Janwith goods, which the owner designed to import without payment of duty, leaving a European port, might be navigated up the St. Lawrence and through the chain of Great Lakes to Chicago (a voyage by no means unknown), or up the Mississippi to St. Louis, and be moored to a dock, and yet the goods be not introduced into the United States, because not actually unladen upon the wharf. I cannot give my consent to such a narrowing an order of Circuit Court No. 2 of Baltidefinition. [No. 91.] uary 9, 1899. IN ERROR to the Court of Appeals of the State of Maryland to review a decree of that court affirming a decree of the Circuit Court No. 2 of Baltimore City sustaining a demurrer to the bill of the plaintiff, the Chappell Chemical & Fertilizer Company, and to review a decree of that court affirm more City refusing the plaintiff leave to file See same case below, 85 Md. 681. in error. Confirmation of the above meaning of the word "smuggle" may, I think, be found in the act of June 22, 1874 (18 Stat. at L. 186, chap. 391), commonly known as the "antimoiety act." In section 4 of that act it is provided that the Secretary of the Treasury shall award to officers or others detecting or seizing smuggled goods a proportion of their proceeds, and that "for the purposes of this act smuggling shall be construed to mean the act with intent to defraud or bringing into the United States, or with like intent [465]attempting to bring into the United States dutiable goods without passing the same, or the package containing the same, through the custom house, or submitting them to the officers of the revenue for examination." It is true the definition is given "for the purposes of this act," and evidently with the object of including within its provisions, not recovered by the said defendant against your "That the said purported judgment was only the act of smuggling proper, that is, orator in the superior court for Baltimore the act of importing with intent to defraud city, before the judge at large, and that said dutiable articles without passing, etc., but judgment is rendered coram non judice, and of an attempt to do the same, which would your orator herewith files a certified copy of probably not be construed as smuggling un-the docket entries in said case, marked 'Comder the provisions of other acts. It is scarce- plainants' Exhibit B,' reference being had ly possible that Congress should have con- thereto. templated wholly different interpretations of the same words in different acts. Messrs. James M. Ambler, Randolph *M.. Justice McKenna delivered the[466] opinion of the court: But it is useless to prolong this discussion. The whole question turns upon the meaning of the words "smuggle" and "clandestinely introduce." I have given my reasons for be forcement of a certain writ of attachment "That the entry on said docket, that the case was submitted to the judge, is absolutely fraudulent. and that there is a motion pending in said case to correct said fraudulent docket entry. "That your orator is advised that the said |
