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

and certificates shall be presumptive evidence
Of illegal importation, or the non-payment OF
duties, which i, would undoubtedly have done,
if this was made the substantive ground OF for
fixture under this section. The ultimate OBJ
iect of the provision undoubtedly is 10 guard
against illegal importations, and compel the in
PRODUCTION Of goods through the regular chan
mel provided by law. But the act makes the
want of marks and certificates prima facie, suf-
ficient 10 sustain the forfeiture. The informa-
ton need not allege an illegal Importation or
the non payment Of duties The act makes it
matter of defence 10 shew the teas were legally
imported, and the duties paid or secured, and
it is never necessary to state In libel any TACT
which constitutes The defence Of the claimants,
or 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 & Cranch 3S2.) the
information then need only alege that the teas
were found unaccompaned with marks and
certificates, no more need be proved prma IA
Gle to warrant condemnation; and unless the
claimant should set up as matter Of defence,
evidence in relation 10 the importation or pay
ment OF duties, the only ground of condemna-
tion would Of course be the want OF marks. and
certificates, and for this the act declares the teas
shall be adjudsed 10 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 pc
nalty of forfeiture is inflicted they may be con-
sidered as having for their object, to guard a.
galnst illegal impor,ations and to secure the
payment of duties, yet it cannot with proprie-
ty be said that the illegal importation, or non
payment Of duties is the ground of forfeiture.
This is incurred by violation Of the special
regulations which the law has provided, as
guards and ohecks. Thus 10 unade goods be-
fore the vessel comes to the proper place for the
discharge Of the cargo, or without authority
from the proper officer, subjects them TO for
fixture, but it is enough to allege and prove the
simple fact Of the unlading at an improper place
or without permit, without alleging or prov
ing that the importation was Illegal or the du-
ties not paid (27th) So under tie 37th * are
3Sth sections of the act, spirits, wines, and teas
required to be landed, under special permit
endorsed, as therein prescribed, and under the
inspec ton Of the surveyor or other officer act
ing as inspector Of the revenue, on pain OF for
feiture 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 forfeit
ure under the 43d section.
am persuaded that under the extraordinary
circumstances Of this case, the single fact, that
the teas were unaccompanied by the certificate,
when found in New-York, is not sufficient to
sustain the condemnation 1t is neither within
the letter or spirit of the act. And cannot be
supported under any rule of construction APP
pllcable to penal statutes.
The case o. the United States VS.. the cargo
of the ship Favorite, already referred to, con-
tans principles and rules Of construction which
have very strong bearing upon the present
case. The goods lIbelled in that case consisted
of wines, spirits, and other articles, saved from
wreck, and landed not in conformity to tn.
regulations Of the law with respect to such ar
ticles The libel alleged as ground of forfeit
ure: lst That the wines and spirits were un-
accompanied 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
grounds Of forfeiture were not controversial
There was therefore clearly forfeiture accord
ing 10 the letter Of the law. And it was urged
upon the vent, 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 4Sd section Of
the act, like the present, and the want of marks
and certificates alleged as the ground of for
fixture. 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 oil
the intention of the Legislature, was formed
not exclusively upon the extreme severity Of
such regulation, but also on what is deemed,
a fair construction Of the language Of the seve-
raj sections of the act, which seems not adapt
ed TO such cases.
And with respect TO the other ground alleg-
ed, as sustaining the forfeiture. The court
said the removal for which the act Furnishes the
owner with 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; with
out 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 forfeiture Of that property.
The acts being done with no view TO defraud
the revenue, the court would not be induced TO
put strained construction on the act OF Con-
pyess in order to create forfeiture.
May it not with equaliorce and propriety be