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about the successful smuggling of the goods,
Effectual Prevention of Frauds Relating to
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  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
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 could precede smuggling or follow it, without specifically making a distinct and separate offense designated smuggling or clandestine introduction.
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  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
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
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
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
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 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
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 accomplished 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
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 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  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
"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-
in the act of 1842 embraced, as asserted,
If, as stated by these authors, the actual
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  CHIEF JUSTICE, Mr. Justice Harlan and Mr. Justice Brewer, dissenting:
I find myself unable to concur in the opin