5. That the duties on the goods were not paid within the meaning of the 68th section of the Act of 1799 (although they had been passed at the custom-house of New York, and the duties there assessed upon them had been paid, according to the value and prices in the invoice), if the jury should be of opinion that they were not invoiced at their fair and true cost and value.

6. That the provision of the 66th section of the Act of 1799, mentioned in the charge, was not repealed.

Messrs. Meredith and Crittenden for the plaintiffs in error.

Messrs. Cadwallader and Nelson, AttorneyGeneral, for the United States.

[The reporter was unavoidably absent, and therefore cannot report the arguments of the respective counsel.]

Mr. Justice STOREY delivered the opinion of the court:

This is a writ of error to the judgment of the Circuit Court of the Eastern District of Penn

trict Court founded upon an information in rem against certain cases of cloth and cassi meres seized on land in the said district. The cause was tried by a jury, who returned a verdict for the United States, upon which the judgment was rendered.

7. That under the Act of 1830, when a pack-sylvania, affirming the judgment of the Disage or invoice has been made up with intention to defraud, the package or invoice (that is, the goods contained in the invoice) are forfeited. 8. That the probable cause mentioned in the 7th section of the Act of 1799, is not a cause existing and known to the persons by whom the seizure was made, antecedent to the seizure, and which was the warrant and ground of the proceedings. The probable cause intended by the act has no reference to the seizure, but to the trial. There must be probable cause for the prosecution, not for the seizure, and the court is to judge of it by what appears to the court-by what comes to the knowledge of the court on the trial of the prosecution.

9. That the United States have shown prob204*] able cause for the prosecution, and that the onus probandi was thrown upon the claimants.

10. That is was not necessary to affirm or deny the doctrine that there can be but one official appraisement of the goods, and that that must be made in the custom-house at which the goods were entered.

The information contained thirteen counts. The first and second counts were founded on the 50th section of the Duty Collection Act of 1799, chap. 128; the third count was founded on the 68th section of the same act; [*205 the fourth, fifth, and tenth counts were founded on the 66th section of the same act; the sixth, seventh, eighth, eleventh, and twelfth counts were founded on the 4th section of the Act of 28th of May, 1830, chap. 147; and the ninth and thirteenth counts were founded on the 14th section of the Act of the 14th of July, 1832, chap. 224. The claimants put in a plea or answer denying the allegations in the information, upon which an issue was tendered and joined, and tried by the jury.

At the trial, certain exceptions were taken to the matters ruled, and to the charge given by the learned judge who presided at the trial, the form and frame of which exceptions, as propounded by the counsel, we do not propose to examine; and the questions submitted to us arise from the matters of law thus ruled and

of the learned judge upon the evidence, except so far as they involved matters of law, we have nothing to do, as they were submitted solely for the consideration of the jury in weighing the evidence, of which they were the proper and final judges.

11. That the first step in the inquiry whether the goods are invoiced at their actual cost, is to ascertain what was their actual cost; and how has this been done on the part of the United States? By certain appraisements made, in the first place, by official appraisers of the custom-contained in his charge. With the comments house of this city; and further, by private appraisers, selected for that purpose. If the opinions of Messrs. Stewart and Simpson (the official appraisers at the port of Philadelphia) have not the authority of an official appraisement or act, they have, nevertheless, the weight of the judgment of men accustomed to other In the course of the argument in this court. goods of this description, and who, from the an objection was insisted on, that the seizure appointment, as well as their experience, may itself upon which the information is founded, be presumed to have competent knowledge and was irregularly and improperly made, it hayskill in ascertaining their value. In this lighting been made by the collector of the customs the jury may consider their evidence, and give of the port of Philadelphia, when it should credit to it accordingly. have been made by the collector of the customs of the port of New York. And some reliance in support of this objection seems to have been placed upon the supposed intention of the 68th section of the Duty Collection Act of 1799. chap. 128. But if any reliance could be placed thereon (as we think it could not), it would be completely removed by the 70th section of the same act, which makes it the duty of the sev eral officers of the customs to make seizure of all vessels and goods liable to seizure by virtue of that act or any other act respecting the rev enue, as well without as within their respective districts. So that it is plain from this provision that a seizure made by any officer of the customs of any district would be good, although made within any other district. And the whole structure of the act shows that any officer of the

And, thereupon, the counsel for the said claimants did then and there except to the foresaid charge and opinions of the said court; and inasmuch as the said charge and opinions, so excepted to, do not appear upon the record, the said counsel for the said claimants did then and there tender this bill of exceptions to the opinion of the said court, and requested the seal of the said judge aforesaid should be put to the same, according to the form of the statute in such case made and provided.

And, thereupon, the aforesaid judge, at the request of the said counsel for the claimants, did put his seal to this bill of exceptions, pursuant to the aforesaid statute in such case made and provided.

Jos. Hopkinson. [L. S.]

customs had a perfect right to seize goods found | witnesses were acting as the agents of the gov

in his own district, and indeed that it was his appropriate duty.

ernment in making the search and seizure; they alone could give testimony as to the facts attending such search and seizure, and were. therefore, witnesses from necessity; and their acts being adopted or authorized by the government, public policy requires that the government should have the means of enforcing its own rights through the instrumentality of their testimony. Their competency for such purposes falls directly within the reasoning of the Court of King's Bench in the case of The King v. Williams (9 Barn. & Cress., 549), and the case of The United States v. *Murphy [*207 (16 Peters, 203), where the subject was considered very much at large.

But the objection itself has no just foundation in law. At the common law any person may, at his peril, seize for a forfeiture to the government, and, if the government adopts his seizure, and institutes proceedings to enforce the forfeiture, and the property is condemned, he will be completely justified. So that it is wholly immaterial in such a case who makes the seizure, or whether it is irregularly made or not, or whether the cause assigned originally for the seizure be that for which the condemnation takes place, provided the adjudication is for a sufficient cause. This doctrine was fully recognized by this court in Hoyt v. Gelston In the next place, the witnesses were not ob206*] (3 Wheat., 247, *310), and in Wood v.jectionable in point of competency on account the United States (16 Peters, 342, 358, 359). of any interest in the event of the cause. Their And from these decisions we feel not the slight-interest, if any they had, as informers or otherest inclination to depart. wise, in the forfeiture, was completely removed by the provision of the 91st section of the Duty Collection Act of 1799, chap, 128, which, when they are used as witnesses, takes away from them the share of the forfeiture to which they would otherwise be entitled. In the event of the suit, therefore, they had no interest, for the suit was solely to enforce the forfeiture. The question, whether there was probable or reasonable cause for the seizure, constituted no part of the issue to be tried by the jury. So far as it respected throwing the onus probandi upon the claimants, it was a matter solely for the consideration of the court in the progress of the trial, and collateral to the main inquiry, although of great importance in regulating the nature and extent and sufficiency of the evidence. And so far as respected the certificate and entry of reasonable cause to protect the seizors from future liability for the seizure, it was no part of the issue, and, indeed, was an act to be done by the court before whom the prosecution was tried, only in case judgment upon the verdict should pass for the claimants; and it therefore was plainly an act to be done and inquiry to be had posterior to the trial.

Indeed, if the objection could under any circumstances be maintainable, it was matter that should have been propounded as preliminary matter in the nature of a plea in abatement of the information, and could constitute no point before the jury upon pleadings addressed to the merits of the case, and involving the direct question of forfeiture or not.

In the course of the trial several objections to the competency of certain witnesses, and to the admissibility of certain evidence, offered on behalf of the United States, were taken by the claimants. In the first place an objection was taken to the competency of John J. Logue, George Gideon, and William Cairns, called to support the issue on behalf of the United States, they being officers of the customs and the persons who made the seizure of the goods in controversy. By the 71st section of the Duty Collection Act of 1799, chap. 128, the onus probandi to establish the innocence of the property is thrown upon the claimant in all cases where probable cause is shown for the seizure and prosecution. And by the 89th section of the same act it is provided, that when in any prosecution on account of a seizure, judgment shall be given for the claimant, if it shall appear to the court before whom such prosecution shall be tried, that there was a reasonable cause of seizure, the court shall cause a certificate and entry to be made thereof; and in such case the person making the seizure, or the prosecutor, shall not be liable to any action, suit, or judgment, on account of such seizure and prosecution.

The argument, therefore, on behalf of the claimant is, that these witnesses are incompetent, they being interested in the event of the suit, and being liable to an action at the suit of the claimants, if reasonable cause for the seizure was not established, and that their testimony in effect would conduce to establish such reasonable cause.

In the next place, the objection taken was to the competency of the witnesses, as such, for any purposes in the cause. They were not called by the government as witnesses to give evidence of matters showing reasonable or probable cause for the seizure, but as witnesses generally "to support the issue on the part" of the government. If competent for any purpose up. on the trial, they could not be rejected generally; and that they were competent to prove "the facts attending the seizure of the goods, and that certain original marks on packages containing the said goods had been erased, and among them the mark [B]F, which was origina!ly upon one of the said packages," cannot, in our judgment, admit of any just doubt. could make no difference as to their admissibiliSeveral answers may be given to this objec- ty for these purposes, that collaterally these tion. In the first place, it is not true that the facts might bear upon the question of probable mere liability of a party to an action in one or reasonable cause or not. event of a suit will constitute of itself an abso- In the next place, there was another and inlute or universal objection to his competency. dependent ground upon which their competency There are many exceptions to the rule on this is clear. It is, that they were acting under a subject, founded upon necessity, or public pol-search-warrant in making the search and seizicy, or the remoteness, the uncertainty, or the ure, which would undoubtedly, under the 68th contingent nature of the liability. The present section of the same act, be a complete protection case falls directly within these exceptions. The to them against all liability to any suit there

It

208*] *Upon all these grounds, we are of opinion that the witnesses were clearly admissible.

for, unless, indeed, in a case where the witnesses quantities of woolens; for three or [*209 acted from malice, and also without probable four years past we have imported but a few cause; and the absence of either would exoner- packages annually." Whereupon, the counsel ate them from all liability. So that in this view for the United States, on re-examination, protheir liability was remote, contingent, and un- posed the following question, viz.: "Was there certain. anything in the state of the market which caused the alteration which you have mentioned in the amount imported by you within four or five years last past?" To which question the claimants objected; but the judge allowed the question to be put, saying it might have some bearing on the case, and that it was but following out the question put on the cross-examination. We think the decision of the court was perfectly correct, for the reason stated by the judge. The answer might show that the witness had ceased to import so largely, not from want of skill or capital, but for reasons which might connect themselves with the importations of the claimants. What the answer was we do not know; and certainly it could be no just ground of exception, that the answer was such as had no bearing either way upon the merits of the case, and a fortiori not, if favorable to the claimants.

Another objection was to the admissibility of a bill of lading, entry, and owner's oath, taken on the 16th of July, 1839, in the month preceding the seizure of the goods in question, of nineteen cases of goods (not part of the goods seized) marked [B]F, 1 a 19. Although this evidence was objected to, and it was admitted, yet it does not appear upon the record that any exception was taken to the ruling. But, without dwelling upon this, which was perhaps an accidental omission, it is proper to say that this evidence was not offered as a single, isolated document (for in that view it might be deemed at most as irrelevant and inconsequential for any purpose), but it was offered in connection with other documents and evidence to establish a privity between Taylor and Blackburne & Co., in other importations of a kindred character, and under a scheme of meditated fraud upon the revenue of the United States, of which these documents were a link in the chain. For this purpose they might be important and necessary; and although the whole evidence is not set forth in the record, yet it is apparent, from what is there found in reference to the next objection, that the evidence had an intimate connection and bearing upon that which is there stated.

The objection here alluded to is in the record stated in the following words: "The counsel of the United States." [See the paragraph in the statement of the reporter which is included within brackets.] Now, we think the exception to this evidence was properly overruled, and the evidence admissible to establish the connection between Taylor and Blackburne in other importations as well as in the importation of the goods now in controversy, and also to displace any presumption that the acts of the one were not properly to be deemed attributable to any connivance with the other, or that they were not jointly interested in the same scheme of importations, and mutually cognizant of the designs of each other. What effect this evidence ought to have after its admission in the cause, taken in connection with the other evidence, was a matter for the consideration of the jury alone; but of its admissibility for the purposes above stated we entertain no doubt. It is, indeed, a strange omission in the record, that the other evidence in the case is not therein fully stated, nor the points, to which it was adduced, suggested, so that we are left to conjecture from very imperfect materials what was the true extent and bearing of the various matters excepted to as improper evidence.

Another objection is to a question put to Abraham J. Lewis, a witness on behalf of the United States, who, having stated that his firm were importers of cloths and kerseymeres, and that he had thereby a knowledge of their quality, was asked, on cross-examination, to state the extent of the importations of his firm; and in reply he said: "Formerly we imported large

Another objection was to the admissibility of the evidence of David Gardner, who was offered to prove that certain goods, marked [B]F, which had been imported into New York, in the ship Eutaw, being the same on which Francis Blackburne was alleged to have paid the freight, were still in the custom-house at New York. We think that this evidence was properly admissible, for the same reasons as those which have been already stated. It was a part of the res geste. If the other parts of the evidence were favorable to the innocence of the claimants in their various importations, then no conclusion against them could fairly be drawn from this fact. But if, on the other hand, strong circumstances of suspicion of fraud attached to other importations, then the circumstance, so contrary to the usual course of mercantile transactions in cases of perishable articles, or articles liable to depreciation or decay, of their remaining long in the custom-house, might fairly be deemed to inflame those suspicions, especially if in the interval the government was on the alert to detect supposed frauds in other importations.

Another objection was to the admission of the evidence of an invoice of merinoes (not part of the goods mentioned in the information), entered in Philadelphia, by Blackburne & Co., and marked [B]F, 35 to 53, offered as strengthening the evidence of the ownership of packages with this mark. In this view we can perceive no possible question as to the competency or propriety of the evidence.

Another objection was to the admissibility in evidence of certain invoices of Blackburne, Tay lor, Okie & Robinson, to show the absence of any such usage as to the allowance of five per cent. for measurement, as had been testified to by the witnesses on the part of the claimants. We see no just ground of exception to the admissibility of such evidence. The usage set up was of a general nature, and all evi- [*210 dence which went to establish the want of such generality, by proof of the non-existence of such a deduction in invoices of a similar naturewhere, if it was general and well known, it ought to be found-was certainly admissible to

rebut the presumptions derived from the adverse proof. The same answer may be given, and indeed applies more forcibly, to the evidence given by Robert Walker, a witness for the claimants, who, upon his cross-examination, verified several invoices of his own importations into the port of New York; and also a letter of one Waite, annexed to one of the invoices. The introduction of this letter was objected to; but it was an accompaniment of the invoice introduced without objection, and it was offered not in chief, but as qualifying and repelling the evidence offered by the claimants as to the five per cent. usage-founded, among that of others, upon the very testimony of Walker. The other invoices verified by Walker were, for the same reason, in our judgment, equally admissible.

and not the jury, was to judge whether there was probable cause or not to throw the onus probandi on the claimants; for the 71st section of the Act of 1799, chap. 128, expressly declares that "the ouns probandi shall lie on the claimant only where probable cause is shown for such prosecution, to be judged of by the court before whom such prosecution is to be had." In our judgment, the circumstances were abundantly sufficient to justify him, nay, to require him to throw the onus probandi on the claimants. The extraordinary circumstances connected with the concealment of the goods, the prevarications and false statements of Blackburne, and the undervaluation of the goods, all required the most plenary proofs on the part of We have thus gone over the various objections perils by which it was surrounded. The original the claimants, to deliver the property from the taken to the competency and admissibility of the cost of the purchases could have been fully provtestimony in this case; some of which, considered by the claimants, if the transactions were ing all the circumstances of the case, can scarcely be treated otherwise than as being inter apices juris; and shall now proceed to examine the exceptions taken to the charge of the court. Of many of these it is unnecessary to take any special notice, since they have been already disposed of in the case of Wood v. The United States (16 Peters, 342), or have incidentally fallen under notice in the preceding parts of this opinion. Upon the point that the revenue laws, on which the information was founded, were not, as the judge in the court below suggested, to be deemed penal laws in the sense in which that phrase is sometimes used, it may be proper to say a very few words. He treated the point as not of great importance in the case, as we think it was not, since it had no tendency to change the interpretation of the provisions of the revenue laws then under his consideration. In one sense, every law imposing a penalty or forfeiture may be deemed a penal law; in another sense, such laws are often deemed and truly deserve to be called remedial. The judge was therefore strictly accurate when he

stated that "It must not be understood that every law which imposes a penalty is therefore, legally speaking, a penal law, that is a law which is to be construed with great strictness in favor of the defendant. Laws enacted for the prevention of fraud, for the suppression of a public wrong, or to effect a public good, are not, in the strict sense, penal acts, although they

bona fide purchases; and they had the most ample means within their power to establish it. Taylor and Blackburne were so completely mixed up in these transactions, as principals and agents, or as joint principals, that the acts of the one might most justly be attributed to the other; and in fact they admit of no reasonable separation as to design or privity of co-opera

tion.

which requires any special notice. It is whether There is but one other exception remaining, the 68th section of the Act of 1799, chap. 128, where, by a false and fraudulent undervaluawas intended to reach, or does reach cases tion, less than the amount of duties required by law has been paid, or whether it applies only to cases where no duties at all have been paid upon the goods. In our opinion, the secIn the sense of that section all goods are fortion was designed to apply equally to both cases. feited on which, by fraud, all the duties shall not have been paid, or secured to be paid which are by law required to be paid or secured there

on.

Upon the whole, the judgment of the Circuit Court is affirmed.

may inflict a penalty for violating them." And JOHN POLLARD et al., Lessee, (*212

Plaintiff in Error,

V.

be added: "It is in this light I view the revenue laws, and I would construe them so as most effectually to accomplish the intention of the Legislature in passing them." The same distinction will be found recognized in the elementary JOHN HAGAN et al., Defendants in Error. writers, as, for example, in Blackstone's Commentaries (1 Black. Com., 88), and Bacon's Abridgement (statute I., 7, 8), and Comyn's 211] Digest (Parliament R., *13, R. 19, R. 20); and it is also abundantly supported by the authorities.

The main exception, however, to the charge is as to the ruling of the judge that there was probable cause of seizure, and that therefore the onus probandi to establish the innocence of the importation, and to repel the supposed forfeiture, was upon the claimants. We entirely concur in the opinion of the judge in his views of the evidence as applicable to this point. He,

When Alabama was admitted into the Union it became entitled to soil under navigable waters therein, same as original States-nothing therein remained to the U. S. but the public lands-these do not include lands below high water-mark in navigable streams.

The stipulation contained in the 6th section of 1819, for the admission of the State of Alabama the Act of Congress, passed on the 2d of March, into the Union, viz.: "that all navigable waters within the said State shall forever remain public highways, free to the citizens of said State, and of the United States, without any tax, duty, impost, or toll therefor, imposed by said State,' conveys

The case was similar in its character to the two cases of The City of Mobile v. Emanuel et al., reported in 1 Howard, 95, and Pollard's Lessee v. Files (2 Howard, 592). In the report In 2 Howard, 599, the point was expressly of the first of these cases the locality of the raised by the counsel on the other side.