# Keck v. United States/Dissent Brown

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* Dissenting Opinion Brown
United States Supreme Court
172 U.S. 434
Keck v. United States
Mr. Justice BROWN, dissenting.
I find myself unable to concur in the opinion of the court in this case, and particularly in a definition of smuggling which requires that the goods shall be actually unladen and carried upon shore.
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 country. If it were ever the law in England, it never found a lodgment in its standard dictionaries, either general or legal, and has never been recognized as such by writers upon criminal law, with the exceptions above stated. It was never treated as the law in America. The truth seems to be that smuggling eo nomine was formerly, whatever it may be now, not a crime in England, but a large number of acts leading up to an unlawful unlading of goods were made criminal. Smuggling appears to have been rather a popular, than a legal, term; and the fact that it was usually accompanied by the landing of goods on shore may have led to the definition made use of by Bacon and Hawkins. Indeed, in all the old English statutes cited in the opinion of the court it is recognized that the ultimate object of all smugglers is to get their goods ashore without payment of duties.
If, as stated by these authors, the actual unlading and carriage of the goods to the shore were an essential ingredient of the offense, it is somewhat singular that it should have escaped the notice of so learned a writer 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 imposed thereon by the laws of the customs and excise.' 4 Bl. Comm. 154. Dr. Johnson, with his customary disregard of conventionalities, defines the verb 'to smuggle' as 'to import or export goods without paying the customs,' nd a smuggler as 'a wretch who, in defiance of justice and the laws, imports or exports goods, either contraband or without paying the customs.' In Burns' Law Dictionary (1792) smugglers are said to be 'those who conceal prohibited goods and defraud the king of his customs on the seacoast by running of goods and merchandise.' In Brown's Law Dictionary (Eng., 1874), smuggling is defined as 'importing goods which are liable to duty so as to evade payment of duty,' and in McClain's Criminal Law (section 1351), as importing dutiable goods without payment. There are similar definitions in the Encyclopaedic and also in the Imperial Dictionary. In the Encyclopedia Britannica 'smuggling' is said to denote 'a breach of the revenue laws, either by the importation or the exportation of prohibited goods, or by the evasion of customs duties on goods liable to duty'; and Stephen, in his Summary of the Criminal Law (page 89), defines smuggling as the 'importing or exporting of goods without paying the duties imposed thereon by the laws of customs and excise, or of which the importation or exportation is prohibited.' Similar definitions are given by Lord Hume in his Commentaries on the Laws of Scotland, as well as in Bell's Dictionary of Scottish Law, p. 225. In Tomlin's Law Dictionary, where smuggling is defined as 'the offense of importing or exporting goods without paying the duties imposed thereon by the custom or excise laws,' a list of some 30 or 40 acts connected with the unlawful and fraudulent importation of goods is given, but in none of them is the word 'smuggle' mentioned as an offense. In the sixth edition of his work on Crimes, Sir William Russell gives as his authority for the definition Hawkins, Bacon, and Blackstone, the last of whom is against him; and also sets forth a large number of acts 'for the prevention of smuggling,' passed during the present reign, none of which mention the word 'smuggle' as a distinct crime. Indeed, the word seems to be a popular summing up of a large number of offenses connected with the clandestine introduction of goods from foreign ports.
But, conceding all that is claimed as to the law of England in that particular, the question is not, what was the law of England during the last century, nor what it is today, but what was the law of the United States in 1842, when this act was passed, and in 1877, when it was incorporated in the Revised Statutes? If we are to rely for a definition upon our lexicographers and legal grammarians, there can be no doubt upon the subject, as by Webster, Worcester, the Century and the Standard Dictionaries, and in all the law lexicons, the offense is defined in somewhat varied phraseology as the clandestine importation of goods without the payment of duties. I know of no American authority, except the dictum of Judge Lowell in U.S. v. Jordan, 2 Low. 537, Fed. Cas. No. 15,498, to the contrary.
It would seem from that case, and from certain expressions in the opinion of the court in the case under consideration, that the offense is not complete even when the goods are unladen and put upon the shore, and that a failure to pay duty upon them is a necessary element to justify an indictment, or that, as the words 'without paying or accounting for the duty' imply the existence of the obligation to pay or account at the time of the commission of the offense, which duty is evaded by the guilty act, it follows that the offense is not committed by an act done before the obligation to pay or account for the duties arises, although such act may indicate a future purpose to evade when the period of paying or securing the payment of duties had been reached. It follows from this that if, as is the custom upon the arrival of trans-Atlantic steamers, a passenger's baggage is landed upon the wharf, and the trunks are filled with goods clandestinely imported, the owner cannot be convicted of smuggling them under this statute, since the obligation to pay the duties upon them does not arise until an attempt is made to carry them off the wharf. In my view, the act of smuggling is complete when the goods are brought within the waters of a certain port, with intent to land them without payment of duties. Whether, if the duties be subsequently paid, such payment would be a condonation of the offense is a question upon which it is unnecessary to express an opinion. It might depend upon the motives which induced the importer to pay the duties. If they were paid after detection, it might not be considered sufficient; if before detection, it would be strong evidence of a change of purpose. If the testimony of the captain in this case is to be believed, he brought the package of diamonds into port wholly ignorant of the fact that it contained dutiable articles. Defendant himself was not on board the steamer, but took passage on another ship to arrive later at another port, thus putting it out of his power to pay or account for the duty. The guilty intent with which the package was delivered in Antwerp to an innocent party for transportation to this country must be held to have continued, since defendant had deliberately deprived himself of any locus penitentiae by handing the package to the captain for transportation and delivery.
But we think it is unnecessary to look beyond the language of the statute itself to determine what is meant by the word 'smuggle,' since it is there defined as the clandestine introduction into the United States of 'any goods, wares or merchandise subject to duty by law, and which should have been invoiced, without paying or accounting for the duty.' If the words 'clandestinely introduce' are not intended as a definition of the prior word 'smuggle,' they are intended as a separate offense, and in either case the defendant would be liable if he clandestinely introduced the goods without paying or accounting for the duty thereon. What, then, is meant by a clandestine introduction? In at least two cases in this court (U.S. v. Vowell, 5 Cranch, 368; Arnold v. U.S., 9 Cranch, 104) an 'importation' to which the government's right to duty attaches was defined to be an arrival within the limits of some port of entry. Or, as stated by Mr. Justice Curtis in U.S. v. Ten Thousand Cigars, 2 Curt. 436, Fed. Cas. No. 16,450, 'an importation is complete when the goods are brought within the limits of a port of entry with the intention of unlading them there.' A similar definition of an importation is given in the following cases: Harrison v. Vose, 9 How. 372, 381; U.S. v. Lyman, 1 Mason, 499, Fed. Cas. No. 15,647; McLean v. Hager, 31 Fed. 602, 606; The Mary, 1 Gall. 206, Fed. Cas. No. 9,183 (wherein it was said by Mr. Justice Story that 'an importation is a voluntary arrival within some port with intent to unlade the cargo').
Such being the meaning of the word 'import,' a clandestine importation would be the bringing of goods into a port of entry with design to evade the duties. Should a narrower meaning be given to the words 'clandestinely introduce'? I think not. The word 'introduce' would strike me as entitled to an even broader meaning than the word 'import.' To introduce goods into the United States is to fetch them within the jurisdiction of the United States, or at least within some port of entry, and the requirement that they should be unladen or brought on shore is to import a feature which the ordinary use of language and the object of the act do not demand. If the construction of the words 'clandestinely introduce' adopted by the court be the correct one, it would follow that a vessel loaded with goods, which the owner designed to import without payment of duty, leaving a European port, might be navigated up the St. Lawrence and through the chain of Great Lakes to Chicago (a voyage by no means unknown), or up the Mississippi to St. Louis, and be moored to a dock, and yet the goods be not introduced into the United States, because not actually unladen upon the wharf. I cannot give my consent to such a narrow definition.
Confirmation of the above meaning of the word 'smuggl ' may, I think, be found in the act of June 22, 1874 (18 Stat. 186), commonly known as the 'Anti-moiety Act.' In section 4 of that act it is provided that the secretary of the treasury shall award to officers or others detecting or seizing smuggled goods a proportion of their proceeds, and 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 attempting to bring into the United States, dutiable goods without passing the same, or the package containing the same, through the custom house, or submitting them to the officers of the revenue for examination.' It is true the definition is given 'for the purposes of this act,' and evidently with the object of including within its provisions not only the act of smuggling proper,-that is, the act of importing with intent to defraud dutiable articles without passing, etc.,-but of an attempt to do the same, which would probably not be construed as smuggling under the provisions of other acts. It is scarcely possible that congress should have contemplated wholly different interpretations of the same words in different acts.
But it is useless to prolong this discussion. The whole question turns upon the meaning of the words 'smuggle' and 'clandestinely introduce.' I have given my reasons for believing that they include an importation of goods with an intent to evade the duties,-the right to which has already attached,-and I am at a loss to understand why an obsolete definition of the English law should be rehabilitated to defeat the manifest intention of congress.
Mr. Chief Justice FULLER, Mr. Justice HARLAN, and Mr. Justice BREWER, concur.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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