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small craft and the regulations for the pre- offense, and were disabled for the term of vention of smuggling," it was made a spe- seven years from holding any office of trust cific offense, by section 186, to “import or or profit under the United States; by secbring, or be concerned in importing or bring; tion 22 goods fraudulently entered by means ing into the United Kingdom any prohibited of a false invoice were to be forfeited; by goods, or any goods the importation of which section 24 authority was given to customs is restricted, contrary to such prohibition or officials to make search of ships or vessels, restriction, whether the same be unshipped dwelling houses, etc., for dutiable goods susor not.While the bringing of dutiable pected to be concealed, which when found goods within the jurisdiction of Great were to be forfeited; by section 25 persons Britain, that is, into the waters of the King concealing or buying goods, wares, or merdom, with an intent to smuggle or clandes, chandise, knowing them to be liable to seiztinely introduce the same, was not declared ure under the statute, were to "forfeit and to be punishable, but in the same section, im- pay a sum double the value of the goods so mediately following the quoted clause, it was concealed or purchased;” and by section 40 made an offense to "unship, or assist or be dutiable goods of foreign growth or manuotherwise concerned in the unshipping of facture brought into the United States ex

any goods liable to duty, the duties cept by sea and in certain vessels and landfor which have not been paid or secured.” ed or unladen at any other place than where In other words, this statute demonstrates permitted by the act, were to be forfeited, that where goods might by law be introduced together with the vessels conveying them; into the Kingdom on paying duties, a viola- and it was further provided that "all goods, tion of the obligation to pay the duties was wares and merchandises brought into the not committed by the mere entry of the ves: United States by land contrary* to this act(452] nel into the waters of the Kingdom before the should be forfeited, together with the car. period for the payment or securing the pay riages, horses, and oxen that shall be emment of the duties had arisen.

ployed in conveying the same.” A review of the principal statutes enacted The act of August 4, 1790, chap. 35 (1 Stat. in this country regulating the collection of at L. 145), consists of seventy-five sections, customs duties establishes that co far as and repealed the act of 1789, chap 5. The they embraced legislation designed to pre- act was entitled "An Act to Provide More vent the evasion of duties they proceeded up-Effectually for the Collection of the Duties on the theory of the English law on the same Imposed by Law on Goods, Wares, and Mersubject, that is, that they forbade all the chandise Imported into the United States, acts which were deemed by the lawmaker and on the Tonnage of Ships or Vessels." means to the end of smuggling or clandes. The provisions of the prior act were subtinely introducing dutiable goods into the stantially re-enacted. Further offenses were country in violation of law, and which were also defined, some of which only will now be likewise considered as efficient to enable the referred to. Thus, by section 10, when imoffender to reap the expected benefits of his ported goods were omitted from or impropwrongful acts. Therefore, they forbade and erly described in a manifest, the person in

prescribed penalties for everything which command of the vessel was subjected to a (451]could precede*smuggling or follow it, without forfeiture of the value of the goods so omit

specifically making a distinct and separate ted; by section 12 a penalty of not to exoffense designated smuggling or clandestine ceed $500 was declared for the failure, on arintroduction.

rival within 4 leagues of the coast, etc., to The act of July 31, 1789, chap. 5 (1 Stat. produce upon demand to the proper officer a at L. 29), was entitled "An Act to Regulate manifest and furnish a copy of the same, or the Collection of the Duties Imposed by Law to refuse to give an account of or to make a on the Tonnage of Ships or Vessels and on false statement as to the destination of the Goods, Wares and Merchandises Imported ship or vessel; by section 13 a penalty of into the United States.” The act consists $1,000 and forfeiture of goods was author. of forty sections, and, among other things, ized for unlading goods before a vessel should establishes ports of entry and delivery. By come to the proper place for the discharge section 10 masters of vessels from foreign of her cargo and until the unshipping had ports were required to deliver a manifest of been duly authorized by a proper officer of the cargo to any officer who should first the customs; by section 14 vessels in which come on board; by section 11 the master, goods were so unladen were subjected to foretc., was required within forty-eight hours feiture and the master was to forfeit treble after arrival of the vessel within any port value of the goods; by section 28 goods reof the United States, etc., to make entry, quiring to be weighed or gauged in order to and also make oath to a manifest, and a for- ascertain the duties due thereon, if removed feiture of $500 was imposed for each refusal from the wharf or place upon which landed, or neglect; by section 12 goods unladen in without permission, were subjected to for. open day or without a permit-except in feiture; by section 30 inspectors were aucase of urgent necessity—subjected the ves- thorized to be kept on board of vessels until sel, if of the value of $400, and the goods, they were unladen, and among other duties to forfeiture, and the master or commander specified enjoined upon such inspectors was of the vessel “and every other person who one that they were not to "suffer any goods, shall be aiding or assisti in landing, re- wares, or merchandise to be landed or unlad. moving, housing, or otherwise securing the en froin such ship or vessel without a proper same” were to forfeit and pay $400 for each' permit for that purpose;" by section 66 mas

iers of vessels or others who should take a The requirements as to the production of false oath were made liable to a fine of invoices upon entry of goods subject to an $1,000 and to be imprisoned for not exceed ad valorem duty were supplemented by acts

ing twelve months; and by section 23 mani. of April 20, 1818, chap. 79 (3 Stat. at L. (453)fests *under oath were required to be fur- 433), and March 1, 1823, chap. 21 (Id. 729),

nished by vessels bound to a foreign port, which later statute was enacted to take the and the person in charge of the vessel de place of the former, then about to expire by parting without so clearing was to forfeit limitation. Original invoices were required $200.

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 veri. Tonnage.” It consisted of 112 sections, re-fied by the oath of the owner, unless such re pealed the act of 1790, chap. 35, and sub- quirement was dispensed with by the Secrestantially 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 for. When the act of 1842, heretofore referred eign port was required, before departing to, was enacted, the provisions of the acts of from the district in which he first arrived, 1799, as amended or supplemented by the act to give bond "with condition that the said of 1823, were, in the main, in force, as they goods, wares, or merchandise, or any part

still are. thereof, shall not be landed within the Unit.

As we have seen, it was not until 1842 ed States unless due entry thereof shall have that a specific penalty for smuggling or clan. been first made, and the duties thereupon destine introduction, eo nomine, was enacted. paid, or secured to be paid according When the significance of the word "smugto law.” In section 46 provision was made gling.". as understood at common law, is for the entry of baggage and mechanical im- borne in mind, and the history of the Eng. plements, which were exempted from duty, ment of our own is brought into view, it be

lish legislatior is considered and the developand for the examination of such baggage; the section ending as follows:

comes manifest that the statute of 1842 was “And provided,

that whenever

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 against by the imposition of varying penalshall not, at the time of making entry for ties; in other words, that it had not for its such baggage, be mentioned to the collector purpose to cause the means to become the end, before whom such entry is made, by the per- against the means leading up to smuggling,

but to supplement the existing provisions son making the same, all such articles so found shall be forfeited, and the person in

or which might render it beneficial, by a subwhose baggage they shall be found shall, stantive and criminal statute separately promoreover, forfeit and pay treble the value of viding for the punishment of the overt act of such articles."

passing the goods through the lines of the This proviso, it may be stated, has ever

customs authorities without paying or sesince remained on the statute books, being tended not to merge into one and the same

curing the duties; that is, the statute was innow section 2802 of the Revised Statutes. By sections 49 and 62 of the act of 1799,

offense all the many acts which had been preentry was required to be made and duties viously classified and punished by different paid or secured to be paid before permission penalties, but to legislate against the overt to land goods, wares, and merchandise should

act of smuggling itself. And this view be granted; by section 103, provision was

makes clear why it was that the statute of made as to vessels and packages in which 1842 related, not generally to acts which precertain articles were thereafter to be im- cede smuggling or which might follow it, but

ported, a violation to entail a forfeiture of to the concrete offense of smuggling alone. [454]the vessel and* goods ; by section 105 and suc

That this was the purpose which controlled ceeding sections authority was given to im: the enactment of the act is cogently maniport goods and merchandise into districts es fested by the use of the words “clandestinely tablished and to be established on the north- introduce,” since they, in the common law, ern and northwestern boundaries of the were synonymous with smuggling. Indeed, United States, and on the rivers Ohio and in the English statutes the word “smuggling" Mississippi, “in vessels or boats of any bur- and clandestine importation, clandestine run. then, and in rafts or carriages of any kind or ning and landing, were constantly made use nature whatsoever;" and like report was to of, one for the other, as purely convertible be made, like manifests furnished, and entry terms, all relating to the actual passing of made as in the case of goods imported into the goods across the line where the obligation the United States in vessels from the sea, to pay the duty existed, and which passing and, except as specially provided in the act, could not be accomplished except in defiance such importations were to be subject to like of the duty which the law imposed. The inregulations, penalties, and forfeitures as in Iference that the common-law meaning of tho other districts.

word “smuggling" is to be implied is cogent172 U. S. U. S., BOOK 43.

33

512

a

.

ly augmented by the fact that the statute cealment about it. I have never known 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 gove aphrase for smuggling. In reason this is ernment. The gist of the offense is the eva. tantamount 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 gling or clandestine introduction, by impos- which is the fraud, or in omitting the acts ing a similar penalty upon every person who which immediately precede the payment. "shall make out or pass, or attempt to pass,

A bringing on shore without making through the custom house, any false, forged, entry, etc., is part of the importation or ina or fraudulent invoice;" all of which were acts troduction of the goods, and makes it illegal." connected with the actual entry of the goods, It was earnestly contended in the argument

which, if the object intended to be accomo 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 antece
of 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 of-
2685) was manifestly directed against the fenses according to their gravity, and im-
production 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 The contention that because the portion of
entry, the court said (p. 93) (15: 55): the act of 1842, now found in section 2865,

"The whole scope of the section confirms was omitted in the revision, and was only rethis view. It first makes the smuggling of enacted in 1877, therefore its language should dutiable goods into the country a misdemean. be given a wider meaning than was conveyed or; and, secondly, the passing or attempt to by the same words when used in the act of pass them through the custom house, with in 1842, is without merit. When the re-enacttent to defraud the revenue, by means of ment took place the act of 1842 in the par. false, forged, or fraudulent invoices. The ticular in question had been considered by latter is an offense which, in effect and result, this court, and had been enforced in the is very much akin to that of smuggling, ex. lower courts as having a specific purpose and cept done under color of conformity to the meaning. The re-enactment without change law and regulations of the customs.”

of phraseology, by implication, carried the It was then, therefore, in effect declared previous interpretation and practice with it. that the smuggling or clandestine introduc. Indeed, the re-enactment of the provisions of tion of dutiable goods into the United States the act of 1842 is the best indication of the with intent to defraud the revenue of the judgment of Congress that the* portion of the[458) United States, against which the act of 1842 statute restored should not have been dropped provided, was an act committed by passing in the revision, and that its meaning should the goods in defiance of and without conform- stand as though it had never been so omitted, ity to the laws and regulations of the cus- but had always continued to exist. toms, or by preparing, attempting, or act- It is settled that the rate of customs duty ually passing the same through the custom to be assessed is fixed by the date of importahouse by means of false or fraudulent in- tion, and is not to be determined by the time

when entry of the merchandise is made. The fact that the smuggling

or clandestine But this throws no light on the meaning of introduction into the United States referred the word “smuggling," since that word, both to in the act of 1842 had substantially the at common law and under the text of the foregoing significance is also shown by the acts of Congress, is an act by which the case of United States v. Jordan, 2 Low. Dec. goods are introduced without paying or se537 (1876), where Lowell, J., in considering curing the payment of the duties, and hence the act of 1842 and other statutes, said: concerns, not the mere assessment of duty,

"Under the statutes, smuggling, or bring. but the evasion of a duty already assessed, ing in, or introducing goods, has been held by by passing the line of the customs authori. both the circuit and district courts for this ties in defiance of law. district for a long course of years to be There remains only one further conten.

proved by evidence of the secret landing of tion for consideration, that is, the assertion (457)goods without paying or* securing the duties, that whatever may have been the meaning

which, according to the argument here, would of the term “smuggling at common law, be quite inadmissible if the importation in and its significance at the time when the the sense contended for had no element of con. statute of 1842 was adopted, that that word

voices.

the former decrees of those courts. Such In the months of May, July, and August, i conveyance was made February 21st, 1878, Lynde purchased the 36 bonds in good 1883.

faith, in the usual course of business, for valuSubsequently, on or about the 17th day of able consideration (being about ninety cents March, 1883, Scott, Osborn, and Kennedy, on the dollar, which was at the time the usual with their respective wives, executed and de- market price for them), without knowledge livered their deed of that date, conveying or notice of the unauth ized or fraudulent said premises and property, rights and fran- | acts of Smith, and without any knowledge or chises, to the Chicago, St. Louis,& Pittsburgh notice that the bonds had not been sold by the Railroad Company, which was authorized to Columbus & Indianapolis Railway Company, purchase and own the same.

and thereby became the bona fide holder and On or about the 10th day of June, 1890, owner of the bonds and the coupons thereto the Chicago, St. Louis, & Pittsburgh Railroad belonging. Before the 36 bonds had been Company was duly consolidated with the purchased by him the railway company had Pittsburgh, Cincinnati, & St. Louis Railway not made default in the payment *of interest(504) Company, together with other railway com- on them, and no holder prior to Lynde had panies, under the name of and thereby became elected that the principal sum should become the Pittsburgh, Cincinnati, Chicago, & St. due. Louis Railway Company.

At the time Lynde purchased the bonds the The latter company was, at the commence coupons due May 1st, 1878, were still at. ment of this suit, -and through its predeces- tached to the bonds and were unpaid. sors in title has been ever since the convey- On or about the 27th day of August, 1878, ance to Scott, Kennedy, and Osborn,-in the Lynde presented the 36 bonds for registration actual, peaceable, and undisputed possession to the secretary of the Union Trust Company, of all said railroad, premises and property, New York, which had been designated by the rights and franchises, including that de Columbus, Chicago, & Indiana Central Railscribed in the petition.

way Company as registering agent for such The history of the 36 bonds in suit is as bonds in the city of New York,—to put the follows:

bonds in the name of the party registering On and before the 1st day of November, them and taking them out of the register and 1864, Benjamin E. Smith was the president making them to bearer; and the secretary of the Columbus & Indianapolis Central then caused the same to be registered in the Railway Company. He continued to be pres- name of Lynde. At the time of such regisident of that corporation and of its succes- tration no inquiry was made by the secresors into which it was successively consoli- tary as to whether or not the bonds had been dated, until the sale of the railroad hereinbe regularly issued by the Columbus & Indianfore mentioned in 1883.

apolis Central Railway Company. In the months of November and December, The coupons maturing May 1st, 1878, on 503]1875, Smith borrowed *for his own purposes these 36 bonds, which were attached to them

$48,000 from W. H. Newbold, Son, & Co., when Lynde purchased, were paid to the latbrokers in Philadelphia, executing and deliv- ter by the firm of A. Iselin & Co., Wall street, ering to them his individual notes. At that New York, upon presentation by Lynde of the time he had, as president of the Columbus, coupons in October, 1878; and the 36 coupons Chicago, & Indiana Central Railway Com- maturing November 1st, 1878, were paid to pany, the custody and possession of the 179 Lynde by the same firm upon the presentahereinbefore described ; and, without the tion of the coupons in April, 1879. Iselin & knowledge, authority, or consent of that com- Co. were acting for the receivers and a bondpany, but falsely pretending to W. H. New- holders' committee,—that committee furbold, Son, & Co. that he was individually the nishing the money for taking up the coupons, owner of such bonds, delivered certain of and being afterwards reimbursed by the rethem, including the 36 described in the plain. ceivers. In October, 1879, Lynde presented

's petition, as collateral security for the the coupons falling due May 1st, 1879, on the payment of his notes. He subsequently re- 36 bonds, but Iselin & Co. then declined to newed his notes, with the same collateral, pay them, which was the first knowledge or from time to time until about the 14th day of notice of any kind that he had of any disJanuary, 1878, when the 36 bonds were sold crimination against or difference between by W. H. Newbold, Son, & Co., and the pro- those bonds and any other bonds of the same ceeds applied to the payment of Smith's series. And he has never received payment

The balance was paid over to him or of any coupon on the 36 bonds or any of them for his use, and no part of it was used for the since the payment to him as aforesaid of the benefit of the railway company.

coupons maturing in November, 1878. At At the time the bonds were so pledged all the time the May and November, 1878, couthe past-due coupons had been cut off, and pons were paid, Iselin & Co. had no knowl. while they were so held as collateral security edge but that the 36 bonds had been regularthe subsequent coupons, as they fell due, were ly issued and sold by the Columbus & Indian. cut from the bonds and delivered to Smith, apolis Central Railway Company. but were never presented for payment. From the year 1871 until after the pur

At the sale of the bonds, Newbold, Son, & chase by him of the 36 bonds, * Lynde held and[505) Co. themselves became the purchasers of the owned other bonds secured by the mortgage 36 bonds, paying the full market price and of the Columbus & Indianapolis Central Rail. buying them in good faith without knowledge way Company to Parkhurst, trustee, above of any defect in them; and thereafter they referred to, being some of the 821 bonds besent them to New York for sale.

fore described.

tiff's

notes.

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 gov. aphrase 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 gling or clandestine introduction, by impos- which is the fraud, or in omitting the acts ing a similar penalty upon every person who which immediately precede the payment. "shall make out or pass, or attempt to pass,

A bringing on shore without making through the custom house, any false, forged, entry, etc., is part of the importation or in. or fraudulent invoice;" all of which were acts troduction of the goods, and makes it illegal." 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 antece-
of 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
custon 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 of.
2685) was manifestly directed against the fenses according to their gravity, and im-
production 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 The contention that because the portion of
entry, the court said (p. 93) [15: 55]: the act of 1842, now found in section 2865,

"The whole scope of the section confirms was omitted in the revision, and was only re-
this view. It first makes the smuggling of enacted in 1877, therefore its language should
dutiable goods into the country a misdemean. be given a wider meaning than was conveyed
or; and, secondly, the passing or attempt to by the same words when used in the act of
pass them through the custom house, with in 1842, is without merit. When the re-enact-
tent to defraud the revenue, by means of ment took place the act of 1842 in the par.
false, forged, or fraudulent invoices. The ticular in question had been considered by
latter is an offense which, in effect and result, this court, and had been enforced in the
is very much akin to that of smuggling, ex lower courts as having a specific purpose and
cept done under color of conformity to the meaning. The re-enactment without change
law and regulations of the customs."

of phraseology, by implication, carried the It was then, therefore, in effect declared previous interpretation and practice with it. that the smuggling or clandestine introduc- Indeed, the re-enactment of the provisions of tion of dutiable goods into the United States the act of 1842 is the best indication of the with intent to defraud the revenue of the judgment of Congress that the* portion of the[458) United States, against which the act of 1842 statute restored should not have been dropped provided, was an act committed by passing in the revision, and that its meaning should the goods in defiance of and without conform stand as though it had never been so omitted, ity to the laws and regulations of the cus- but had always continued to exist. toms, or by preparing, attempting, or act- It is settled that the rate of customs duty ually passing the same through the custom to be assessed is fixed by the date of importahouse by means of false or fraudulent in. tion, and is not to be determined by the time

when entry of the merchandise is made. The fact that the smuggling or clandestine But this throws no light on the meaning of introduction into the United States referred the word “smuggling," since that word, both to in the act of 1842 had substantially the at common law and under the text of the foregoing significance is also shown by the acts of Congress, is an act by which the case of United States v. Jordan, 2 Low. Dec. goods are introduced without paying or se. 537 (1876), where Lowell, J., in considering curing the payment of the duties, and hence the act of 1842 and other statutes, said: concerns, not the mere assessment of duty,

“Under the statutes, smuggling, or bring. but the evasion of a duty already assessed,
ing in, or introducing goods, has been held by by passing the line of the customs authori-
both the circuit and district courts for this ties in defiance of law.
district for a long course of years to be There remains only one further conten-

proved by evidence of the secret landing of tion for consideration, that is, the assertion (457]goods without paying or* securing the duties, that whatever may have been the meaning

which, according to the argument here. would of the term "smuggling" at common law, be quite inadmissible if the importation in and its significance at the time when the the sense contended for had no element of con- statute of 1842 was adopted, that that word

voices.

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