The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1889-09-03
Brlef Of CoWaSel for OscRers and
C0ialGfatS.

AAN N>AlS- IL AAAAc NNAAb
The Alden Bessie, before Harris,
c. ].
The Mary Belle Roberts, S Haw.
S2S.
The Kalakaua, 1 Haw, S25.
The c. u. Bryant, before Pres
ton, j.
The statute CSee. 655 Civil Code)
under which these cases, except
the Bryant, were brought is equally
peremptory with that under which
the present libel is brought, in re-
quiring that the vessel in which
dutiable goods are imported with
out payment of duties thereon
ssShall be forfeited"
The Court in the Alden Bessie
refused 10 decree the forfeiture, the
master or owner not being impli-
Gated.
The full Court expressed SINH,
lar view in the kalakaua case.
These are later cases than that of
the Mary Belle Roberts, Gin which
the Court held that the ship may
be forfeited by the unlawful pro-
ceeding Of the mastery and are
fairly 10 be regarded as establishing
the law that unless the master or
owner Is implicated, the ship will
not be forfeited.
In the case OF the Bryant, the
only question argued and decided
was the meaning and construction
Of the Act in respect of the words
- concealed or disguised place."
which IS counsel for the claimants
argued should require proof that
the place was expressly prepared
for such eOncealmeut, but the Court
held that il was enough if il was in
fact q concealed or disguised place
In the present case, the libel does
not aver the material fact for for
fixture, that the master or owner
was guilty Of completely, either by
gross negligence or otherwise, in
the cOncealment Of the opium.
Il Is not enough TO aver that,
- the bringing Of said opium into
this Kingdom WIS unlawful" IN
les the uulawfulue>S i specified.
L. 5. rs. CLaEjH, Is Blatch., us.
The libel does not even charge that
the opium was brought into this
Kingdom, but merely that it was
on board the vessel ssat the time of
its arrival 1t may have been
placed there on its arrival for all
that appears in the libel
II.
The libel prayS that this vessel
be conf>cated on the bare assertion
that, sat the time Of It's arrival at
the port Of kshului, april q laSt)
there were on board three hundred
tins Of opium concealed in secret
and hidden pit and buI beneath the
door Of the lazsret and near the
rudderpost of said brigantine."
This is not sn averment that the
ship came into the said port having
the opium on board, and unless il
brought the opium into the port,
there i no case under the statute.
No differences ought 10 be made
sgainss the ship in such highly
penal proceeding
The Act Of July u, 1856, IS su-
perSeded and repealed by that Of
October Is, 1856.
The former Act Is entitled. - An
act supplementary TO Article 26,
Chapter IN, Of the Civil Code"
which Article % Is entitled, s.Of
smuggling and Otherfrauds against
the Revenue Laws" The supple
ueutary Act Is clearly intended to
prohibit the Importation Of opium,
and 70 facilitate the detecting Of
such importation
Section 5 OF the earlier Act de-
clares that, . any person who shall
be in shy way knowingly concerned
in carrying, removing, depositiug
or co1cealiug, or in any manner
dealing with any opium or other
article, the Importation whereof Is
prohibited r shall be pun
ished- !" and Section 3 declares that,
- aII ships coming into any port Of
this Kingdom having opium on
board, concealed, etc, shGa BE- for
6sl1sG.1
On the other hand, the later Act
Is entitled, - An Act To regulate
the Importation and sale Of opium
in this Kingdom which the for
uer Act absolutely prohibited Il
L impossible 70 say with reason
that under the later Act allowing
opium 10 be imported and sold by
licensed dealers, al persons carry
Ing OF dealing in opium shall Dc
punished therefor. Ii l. equally
wrong 10 hold that under the same
Act aIl vessels snail be forfeited If
they come into port having opium
On board - concealed IN any secret
Or disguised place Opium i au
article which. like vine OF cigars,
e1uId properly and lawfully be kept
in secret z1d hidden places On
board
The Act Of OcfobeS Is, i. plainly
opposed 10 1hlt of July L., the one
absolutely prohibiting, the other
absolutely sITaz7T1sr tF1 fr1u.1rtatfO1