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
clear that smuggling was the clandestine
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-

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-
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 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 con- also make it certain that provision against
demnation thereof, knowing the goods to the "end," smuggling, was made by the en-
have been clandestinely run or imported into actment of numerous distinct and separate
the Kingdom; while in 1736, by statute 9 offenses "against the means of accomplishing
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,
to suppress the pernicious practice of smug-
gling;" and in the fourth section, "for the
more effectual prevention of the infamous
practice of smuggling," provision was made
looking to the proper distribution among the
officers and seamen of public vessels and
ships of war of the moiety allowed of the
proceeds of goods, etc., seized and condemned.
The statutes just referred to and cognate
statutes make it clear, as said above in the
passage cited from Bacon's Abridgment,
though they contained no express penalty
for smuggling eo nomine, that the aim was
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

The distinction between smuggling-the ultimate result-and the various means by which it might be accomplished or by which its accomplishment could be made beneficial, is aptly shown by the recital of a statute enacted in 1736 (9 Geo. II. chap. 35), by which all penalties and forfeitures were remitted which had before a date named in the act been incurred "in, by or for the clandestine running, landing, unshipping, concealing, or receiving any prohibited goods, wares, or mer al-chandise, or any foreign goods liable to the payment of the duties of customs and excise, or either of them, and who are or may be 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 subdivision headed, "As to the restrictions on

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 verire-fied by the oath of the owner, unless such requirement was dispensed with by the Secre tary 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.

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, pealed 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 per

that whenever

son 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.

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 im

ported, 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.

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

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 penal-
ties; 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 sub-
stantive and criminal statute separately pro-
viding for the punishment of the overt act of
passing the goods through the lines of the
customs authorities without paying or se-
curing the duties; that is, the statute was in-
tended not to merge into one and the same
offense all the many acts which had been pre-
viously 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
cede smuggling or which might follow it, but
1842 related, not generally to acts which pre-
to the concrete offense of smuggling alone.
That this was the purpose which controlled
the enactment of the act is cogently mani
fested 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 run-
ning 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 in-
ference that the common-law meaning of the
word "smuggling" is to be implied is cogent-

33

512

ly augmented by the fact that the statute | cealment about it. I have never known a also uses in connection with it words gener- case of smuggling in which any concealment ally known in the law of England as a par- on board the vessel was relied on by the govaphrase for smuggling. In reason this is ernment. The gist of the offense is the evatantamount to an express adoption of the sion or attempted evasion of the duties, and common-law signification. Moreover, this they, to be sure, are due when the vessel arview is fortified by the concluding portion of rives; but they are not payable until some the statute, which supplements the smug-time after, and it is the default in paying 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."

..

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, which, if the object intended to be accom[456]plished was effected, would result in the successful introduction of the goods into the -country, without payment, in part at least, of the duties required by law. This relation of the act of 1842 to the then existing legislation and the remedy intended to be accomplished thereby were referred to and elucidated by the court in United States v. Sixty-seven Packages of Dry Goods, 17 How. 85 [15:54]. In that case, after observing that the provision making criminal the passing or attempting to pass goods through the custom house by means of false, forged, or fraudulent invoices (now a part of section 2685) was manifestly directed against the production and use of simulated invoices and those fraudulently made up for the purpose 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

It was earnestly contended in the argument at bar that the successful administration of the revenue laws would be frustrated unless the pains and penalties of smuggling be held to be applicable to all unlawful acts antecedent to the actual introduction of the goods into the United States. But this argument amounts only to the contention that by an act of judicial legislation the penalties for smuggling should be made applicable to a vast number of unlawful acts not brought within the same by the law-making power. And the result would be to control all acts done in violation of the revenue laws by a highly penal criminal statute, although the law has classified them into many distinct offenses according to their gravity, and imposed different penalties in one case than in others.

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 Statutes is to have a more far-reaching significance, because it must be interpreted by the meaning affixed to the word in section 4 of the anti-moiety act of June 22, 1874 (18 Stat. at L. 186, chap. 391). The section relied on is as follows:

arose, that the offense of smuggling was not
committed within the meaning of the stat
ute, and therefore that the court erred in in-
structing the jury that if they believed the
testimony of the captain they should con-
vict the defendant, and in refusing the re-
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 ques-
tions of alleged error discussed in the argu-
ment 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, 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."

This definition rests only upon the authority of Hawkins' Pleas of the Crown (A. D. 1716), repeated in Bacon's Abridgment (A. D. 1736), and copied into Russell on Crimes (A. D. 1819), and Gabbet's Criminal Law, a work but little known. The diligence of counsel has failed to find support for it in a single adjudicated case in England or this

It suffices to say in answer to this conten-
9]tion that if the anti-moiety act had the
meaning claimed for it, by the very terms of
that act such meaning was restricted to "the
purposes" of that act alone. That statute
had in view the reward to be reaped by in-
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
it never found a lodgment in its standard
of this act," can in reason only be construed dictionaries, either general or legal, and has
as contemplating a more enlarged construc- never been recognized as such by writers up-
tion 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 can-
not 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 unlaw
statute. Indeed, if the word "smuggling" Smuggling appears to have been rather a
ful unlading of goods were made criminal.
popular than a legal term, and the fact that
of goods on shore may have led to the defi-
it was usually accompanied by the landing

in the act of 1842 embraced, as asserted,
every unlawful act which might lead up to
smuggling, then the explanatory words found
in the anti-moiety act would be wholly sunition 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 par-
ticular 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

If, as stated by these authors, the actual
unlading and carriage of the goods to the
shore were an essential ingredient of the of-
fense, 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
importing goods without paying the duties

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

Examining the case made by the record, in 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 who, in defiance of justice and the laws, imthat on the contrary the package was deliv-ports or exports goods, either contraband or ered to the customs officer on board the ves- without paying the customs." In Burns's sel itself, at a time when or before the obli- Law Dictionary (1792) smugglers are said gation to make entry and pay the duties to be "those who conceal prohibited goods

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 opin