651 Chests of Tea v. United States.

cases in which the means that are prescribed for the prevention of a forfeiture may be employed." To apply this principle to the present case; the claimants were ignorant of the fact that these teas had beer. illegally taken from the stores in Philadelphia: nor is it pretended that this was done by any one for whom they are responsible. What means then were in their power to guard against the forfeiture now claimed?

These considerations show the propriety of requiring, that in order to make out a prima facie case of seizure and forfeiture, the teas should have been unaccompanied with both marks and certificates. But this will appear in a still more obvious point of light, by an inquiry as to the necessary allegations in the information. Would it have been sufficient to have alleged that the teas were found in the possession of Smith and Nicoll, unaccompanied with the certificates only? I think it would not. And such must have been the understanding of the District Attorney in framing this information, otherwise he would not have alleged the want of both marks and certificates, in the language of the act, as it must have been known that the proof would not sustain such an allegation. The want of marks is certainly not an immaterial allegation, and having been made, it was necessary to be proved. The reverse of which, however, is found by the special verdict, which establishes the fact, that each chest when found bore all the marks which the law requires. The proof, therefore, did not support the allegation (and as I think a necessary allegation,) in the information.

But it is said the want of marks and certificates is not the ground of forfeiture, but only authorizes the seizure; but that the condemnation is for illegal importation and non-payment of duties.

This I apprehend is not a correct view of the 43d section

651 Chests of Tea v. United States.

of the act; nor is it the construction assumed in the information. The want of marks and certificates, is alleged as the substantive ground of forfeiture. The marks and certificates have no connexion whatever with the payment of duties. They relate altogether to the importation. With respect

to the certificates, the 41st section of the act expressly declares, that it is to accompany each chest, as evidence that the same has been lawfully imported, and the marking is by the officers of inspection, who are under the superintendence of the surveyor, under whose direction the teas are to be landed; the duties, however, or security for the same, are received by the Collector. The existence of marks and certificates being no evidence of the payment of duties, the want of them can afford no presumption of the non-payment. And if the want of the certificates in the present case, was presumptive evidence of illegal importation, that presumption is rebutted by the special verdict, which finds expressly, that the teas were legally imported. The condemnation, therefore, cannot be sustained on any presumption of illegal importation. And if the certificate has no connexion with the payment of duties, the want of it, as has been already observed, affords no presumption of non-payment.

But let us look a little more particularly into the provisions of this 43d section, and see whether the want of marks and certificates is not the substantive ground of forfeiture. And one of the surest tests by which to ascertain this, is, to see what allegations the information must contain. And I think it very clear, that it is not necessary to allege any thing more than that the teas were found in the possession of some person unaccompanied with marks and certificates. This the act declares shall be presumptive evidence that the teas are liable to forfeiture, and may be seized as forfeited.

The act does not declare that the want of marks and certificates shall be presumptive evidence of illegal importation, or the

651 Chests of Tea v. United States.

non-payment of duties, which it would undoubtedly have done if this was made the substantive ground of forfeiture under this section. The ultimate object of the provision undoubt edly is, to guard against illegal importations, and compel the introduction of goods through the regular channel provided by law. But the act makes the want of marks and certificates prima facie, sufficient to sustain the forfeiture. The information need not allege an illegal importation, or the nonpayment of duties. The act makes it matter of defence to show that the teas were legally imported, and the duties paid or secured; and it is never necessary to state in a libel any fact which constitutes the defence of the claimants, or a ground of exception to the operation of the law on which it is founded. This has been expressly so laid down by the Supreme Court of the United States.a

If the information then need only allege that the teas were found unaccompanied with marks and certificates, no more need be proved prima facie to warrant a condemnation; and unless the claimant should set up as matter of defence, evidence in relation to the importation or payment of duties, the only ground of condemnation would of course be the want of marks and certificates; and for this the act declares the teas shall be adjudged to be forfeited, unless the claimant, upon the trial, shall prove the same to have been imported according to law, and the duties paid or secured.

So with respect to all the other provisions in the act, where the penalty of forfeiture is inflicted, they may be considered as having for their object, to guard against illegal importations, and to secure the payment of duties; yet it cannot with propriety be said that the illegal importation or non-payment of duties is the ground of forfeiture. This is incurred by a violation of the special regulations which the law has provided as guards and checks. Thus to unlade goods before a 7 Cranch, 382.

651 Chests of Tea v. United States.

the vessel comes to the proper place for the discharge of the cargo, or without authority from the proper officer, subjects them to forfeiture; but it is enough to allege and prove the simple facts of the unlading at an improper place, or without a permit, without alleging or proving that the importation was illegal or the duties not paid, (27th section.) So under the 37th and 38th sections of the act, spirits, wines, and teas are required to be landed, under a special permit endorsed, as therein prescribed, and under the inspection of the Surveyor or other officer acting as inspector of the revenue, on pain of forfeiture. In these and many other cases that might be referred to, it is the violation of the special regulation that is made the ground of forfeiture. In the same manner as the want of marks and certificates is the ground of forfeiture under the 43d section.

I am persuaded that under the extraordinary circumstances. of this case, the single fact, that the teas were unaccompanied by the certificates, when found in New-York, is not sufficient to sustain the condemnation. It is neither within the letter nor spirit of the act; and it cannot be supported under any rule of construction applicable to penal statutes.

The case of the United States v. The Cargo of the Ship Favourite, already referred to, contains principles and rules of construction which have a very strong bearing upon the present case. The goods libelled in that case consisted of wines, spirits, and other articles, saved from a wreck, and landed not in conformity to the regulations of the law with respect to such articles. The libel alleged as grounds of forfeiture : 1. That the wines and spirits were unaccompanied with the marks and certificates required by law; and 2dly. That they were removed without the consent of the Collector, before the quantity and quality of the wines and spirits had been ascertained according to law. The facts alleged in the libel as the

651 Chests of Tea v. United States.

grounds of forfeiture were not controverted. There was, therefore, clearly a forfeiture according to the letter of the law. And it was urged upon the Court, that the remission or mitigation of the forfeiture could only be exercised by the Secretary of the Treasury, One count in the libel in that case was under the 43d section of the act, like the present, and the want of marks and certificates alleged as the ground of forfeiture. And the Court said the legislature, by the provisions referred to, did not intend to comprehend wrecked goods, or goods found under like circumstances. And this opinion of the intention of the legislature, was formed not exclusively upon the extreme severity of such a regulation, but also on what is deemed a fair construction of the language of the several sections of the act, which seems not adapted to such cases.

And with respect to the other ground alleged as sustaining the forfeiture, the Court said the removal for which the act punishes the owner with a forfeiture of his goods, must be made with his consent or connivance, or with that of some person employed or trusted by him. If by private theft or open robbery, without any fault on his part, his property should be invaded while in the custody of the officers of the revenue, the law cannot be understood to punish him with a forfeiture of that property. The acts being done with no view to defraud the revenue, the Court would not be inclined to put a strained construction on the act of Congress in order to create a forfeiture.

May it not with equal force and propriety be said, that the legislature never intended to apply the penalty of forfeiture to goods found under circumstances like the present? And indeed this is a stronger case; for it does not come within the letter of the act. The marks did accompany the teas. The certificates only were wanting; and they wanting under circumstances satisfactorily showing that no fault or negligence was imputable to the owners, any more than if the teas had