Phenix gazette. [volume] (Alexandria [D.C.]) 1825-1833, 1826-07-20

dOSSHCc Ol OOtu are nCCCSoail' IL uo9 o'A
ly 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 the two concur.
ring circumstances, shall autnorise an act, and
produce certain effect, it is going grea, length
in the construction of statute so highly penal
as this, 10 say, that one or the other circum-
stance shall produce the same effect, and that
both need not concur. twas the want OF the
certificates only upon which -the seizure was
made, and if the condemnation is TO be sustain
ed it must be upon this alone, Tor the chests
were all duly marked as by law required. The
reasonablene5s and necessity of requiring the
want of both marks and certificates, to warrant
seizure and condemnation, may be illustrated
and enforced by Hypothetical case. Suppose a
chest of tea sold in the usual course ofbusiness,
and the certificate delivered as the law requires
TO the purchaser, and the tea sent by carman
to the place where it was to be used or RECALLED,
unaccompanied by the certificate, would Gus
tom house officer be authorised to seize this
chest Of tea, and would condemnation follow
thereupon? I presume no one would contend
for such construction Of the act; and vet would
il be more eXtravagant than construction must
be which sustains the forfeiture in the present
case. The claimants, as owners Of the teas,
were entitled 10 the possession of the certih-
Gates, and in fact bound to have them, as one
Of the vouchers of their title, and not having
sold the teas, there no purchaser to whom
the certificates could be delivered as the law re-
quires. 1t 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 own
err is wronsluy or fraudulently deprived OF the
possession OF his teas, 1T would involve great
absurdity to say he is bound under the penalty
of forfeiting his property to hand over the Ger
tHcates to the wrong doer. Have the claim
ants incurred the penalty Of fifty dollars for each
chest which the law imposes upon the proprie-
tor for not delivering the certificates to tie
purchaser upon the sale of the teas? Certainly
not II would seem to me that the claimants
might, with equal justice, be subjected to for
ieiture Of their property. if it had been stolen
and afterwards found in the possession OF some
person unaccompanied with certificates But
these and the like extraordinary cases, do not
come within the sense and meaning Of law,
which is adapted 70 regular and usual course
Of business, and where il is in the power Of
party 20 comply, with the requirements OF the
law; and not to cases where, from the nature of
things, compliance with the letter Of the law
is impracticabe. The want Of the certificate
was open to explanation, and was satisfactorily
accounted for. In the case Of the cargo OF the
Favorite, "a Cranch, SOS the court say, " it is
unqueS,ionably correct legal principle, that
forfeiture can only be applied TO those cases in
which the means that are prescribed FOL the pre-
ven,ion of a forfeiture may be employed" To
apply this principle to the present casea-The
claimants were ignorant of the fact that these
teas had been illegally taken from the store in
Philadelphia. Nor is it pretended that this
was done BY any one for whom they are respon-
sibe. What means then were in their power
to guard against the forfeiture now claimed?
These considerations show the proprlety Of
requiring, that in order to make out prima
face case Of seizure and forfeiture, the teas
should have been unaccompaned, with both
marks and certificates. But this will appear in
still more obvious point Of light by an ,inqui-
ry, as 10 the necessary allegations in the inior-
nation. Would it have been sufficient to have
alleged thar the teas were found in the posses
sion of Smith and Nicol unacconIpnn!ed Nth lie
cert fcates onlY' think il woald 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 all inmate
rial allegation, and having been made, It was
necessary to be proved The reverse of which,
however, is found by tie 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 allega-
ton, (and as think necessary allegation) in
the information.
But it is said the want Of marks s. certificates,
is no, the ground of forfeiture, but only author
ICES the seizure, but. that the condemnation is
for illegal importation, and non payment OF du-
ties. This apprehcpd is not correct view of
this 4Sd section of the act. Nor is it the con-
structon assumed in the information. The
marks and certificates have no connection what
ever with the payment OF duties. They relate
altogether to the Importation With respect
to the certificate, the 4lst section OF the act ex-
pressy declares, that it is to accompany each
chest, as evidence that the same has been h,July
imported, and the marking is by the officers OF
inspection, who are under the superintendent
Of the surveyor under whose direction the teas
are to be landed The duties, however, or the Sc
curty for the same, are received by the coec-
tor. 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 certiti-