651 Chests of Tea v. United States.

of some of the custom-house officers at Philadelphia and some other persons, for neither of whom however can the claimants be held responsible, or be in any manner implicated by their acts. If under such circumstances, the teas in question have become forfeited, it ought to be the result of some plain and positive provision of law.

Whilst on the one hand, security to the revenue of the country may require rigid laws to guard against frauds, yet on the other, the rights of the innocent ought to be protected, and care should be taken not so to shackle trade and commerce, as to check the industry and enterprise of the merchant, and render hazardous to the whole community the purchase of articles which may have been subject to the payment of duties. I am not aware of a single instance. where by any positive provision in the revenue laws, a forfeiture is incurred, that it does not grow out of some fraud, misconduct, or negligence of the party on whom the penalty is visited.

In the case of the United States v. the Cargo of the ship Favourite, to which I shall have occasion hereafter more particularly to refer, the Supreme Court of the United States, in speaking of the provisions in the collection law of 1799, relative to forfeitures, say, "that the law is not understood to forfeit the property of owners or consignees, on account of the misconduct of mere strangers, over whom such owners or consignees could have no control." And if not on account of the misconduct of strangers, much less justice would there be, in making the misconduct of the custom-house officers, who are the agents of the government, draw after it such a penalty upon the innocent owner.

With these preliminary observations, I shall proceed to a more particular examination of the several grounds upon

b 4 Cranch, 365.

651 Chests of Tea v. United States.

which the forfeiture of these teas is attempted to be sustained, and which may be done under the following heads :

1st. That certificates did not accompany each chest of tea, when found in New-York.

2. Whether, by the general bond of Edward Thompson the importer, and the deposite of the teas in store, according to the provisions of the 62d section of the collection act of 1799, the duties were secured within the meaning, and true interpretation of the 43d section of the same act.

By this law, from the 37th to the 43d sections inclusive, various provisions are made with respect to the entry, and landing of distilled spirits, wines, and teas; and among other things, it is required, that the officers of inspection, at the port where the same shall be landed, shall, upon the landing thereof, mark in durable characters, the several casks, chests, vessels, and cases containing the same, showing the quantity and quality of each; the port of importation, the name of the vessel, the surname of the master, the date of the importation, and the name of the Surveyor or chief officer of inspection for the port. The special verdict finds that all this was done, with respect to the teas in question, and that such marks were upon each chest when they were seized.

The Surveyor or chief officer of inspection, within the port or district in which the spirits, wines, and teas, shall be landed, is required to give to the proprietor, importer, and consignee, or his agent, a general certificate, which he is to retain, showing the whole quantity so imported; and the name of the proprietor, importer, consignee, or agent, and of the vessel from on board which the spirits, wines, or teas, shall have been landed, and the marks of each cask, chest, vessel, or case, containing the same.

651 Chests of Tea v. United States.

In addition to this general certificate, the Surveyor or chief officer of inspection is required to give a special certificate, which shall accompany each cask, chest, &c., wherever the same may be sent within the limits of the United States, as evidence that the same may have been lawfully imported. It is the latter certificate, that the special verdict finds did not accompany each chest of tea, when found in New-York. The certificates, however, were duly issued by the Surveyor, and were in the possession of the claimants in Philadelphia, when the seizure was made.

Then comes the 43d section under which the forfeiture is claimed, which declares that the proprietor, importer, or consignee, or his agent, who may receive said certificates, shall upon the sale or delivery of any of the said spirits, wines, or teas, deliver to the purchaser thereof, the certificate that ought to accompany the same, on pain of forfeiting the sum of fifty dollars for each cask, chest, &c., with which such certificate shall not be delivered. And if any cask, chest, vessel, or case, which by the foregoing provision ought to be marked, and accompanied with certificates, shall be found in the possession of any person, unaccompanied with such marks and certificates, it shall be presumptive evidence that the same is liable to forfeiture, and it shall be lawful for any officer of the customs or of inspection to seize them as forfeited.

The form of this special certificate is given in the act, and contains substantially no more than the law requires to be expressed by the marks on each cask, chest, vessel, or case, and it is to accompany each cask, chest, &c. as evidence that the same has been lawfully imported. It is by no means however to be inferred, that this is the only document or evi dence to be received and looked to, showing a lawful importation. It is one of the checks which the law has provided,

651 Chests of Tea v. United States.

to guard against illegal importations. The marks are for the same purpose, and of at least equal if not of more importance. They are required to be made in durable characters on each cask or chest, &c. and must of course accompany it wherever it goes.

The certificate, from the very nature of the document, cannot always accompany the cask or chest. It is not required to be nailed to it; and the act only requires that upon the sale or delivery of the teas, &c., the certificate shall be delivered to the purchaser. And when it speaks of the cask or chest being found in possession of any person unaccompanied by this evidence, it must be intended to refer to the person who has possession as purchaser.

And to authorize the seizure, the cask or chest must be unaccompanied with such marks and certificates. The absence of both are necessary. This is not only made so by the letter of the act, but is what may reasonably and fairly be presumed to have been the intention of the legislature. And when the law has declared that two concurring circumstances shall authorize an act, and produce a certain effect, it is going great lengths in the construction of a statute so highly penal as this, to say, that one or the other circumstance shall produce the same effect, and that both need not concur. It was the want of the certificates only upon which the seizure was made, and if the condemnation is to be sustained, it must be upon this alone, for the chests were all duly marked as by law required.

The reasonableness and necessity of requiring the want of both marks and certificates, to warrant a seizure and condemnation, may be illustrated and enforced by a hypothetical case. Suppose a chest of tea sold in the usual course of business, and the certificate delivered as the law requires to the purchaser, and the tea sent by a cartman to the place where it was to be used or retailed, unaccompanied by the certificate;

651 Chests of Tea v. United States.

would a custom-house officer be authorized to seize this chest of tea, and would condemnation follow thereupon? I presume no one would contend for such a construction of the act; and yet, would it be more extravagant than a construction must be which sustains the forfeiture in the present case? The claimants, as owners of the teas, were entitled to the possession of the certificates, and in fact bound to have them, as one of the vouchers of their title; and not having sold the teas, there was no purchaser to whom the certificates could be delivered as the law requires. It is upon the sale or delivery of the tea, that the law requires the certificates to be delivered over to the purchaser. And if the owner is wrongfully or fraudulently deprived of the possession of his teas, it would involve a great absurdity to say, he is bound under the penalty of forfeiting his property to hand over the certificates to the wrong doer.

Have the claimants incurred the penalty of fifty dollars for each chest which the law imposes upon the proprietor for not delivering the certificates to the purchaser upon the sale of the teas? Certainly not. It would seem to me that the claimants might with equal justice be subjected to a forfeiture of their property, if it had been stolen and afterwards found in the possession of some person unaccompanied with the certificates. But these, and the like extraordinray cases, do not come within the sense and meaning of the law, which is adapted to a regular and usual course of business, and where it is in the power of a party to comply with the requirements of the law; and not to cases where from the nature of things, a compliance with the letter of the law is impracticable. The want of the certificates was open to explanation, and was satisfactorily accounted for. In the case of the cargo of the Favourite, the Court say, "it is unquestionably a correct legal principle, that a forfeiture can only be applied to those

c 4 Cranch, 363.