In a count in a libel upon the fiftieth section of the
Collection Law of March 2, 1799, for unlading goods without a
permit, it is not necessary to state the time and place of
importation, nor the vessel in which it was made, but it is
sufficient to allege that they were unknown to the attorney.
"Probable cause" means less than evidence which would justify
condemnation. It imports a seizure made under circumstances which
warrant suspicion.
Error to the sentence of the Circuit Court for the District of
Maryland, which condemned the cargo of the schooner
Wendell belonging to Locke, the claimant, as forfeited to
the United States.
The libel contained 11 counts.
The 1st count charged that the goods between 1 June, 1808, and
the day of filing the libel, at Boston, with intent to transport
them to Baltimore, without a permit from the collector and naval
officer of the port of Boston, were clandestinely laden on board
the schooner
Wendell a vessel enrolled and licensed
according to statute, whose employment was not then confined to the
navigation of bays, sounds, rivers and lakes within the
jurisdiction of the United States, nor exempted from the obligation
of giving bond according to the provisions of the statute (the
embargo law).
The 2d count charged that the goods being of foreign growth and
manufacture and subject to the payment of duties, between 1 May,
1808, and the day of filing the libel were unladed without the
authority of the proper officers of the customs, from on board some
vessel to the attorney unknown, after she had arrived within four
leagues of the coast of the United States, the said vessel being
then bound from some foreign port or place (to the attorney
unknown) to the United States.
The 3d count charged that the goods being of foreign growth and
manufacture and subject to duties, were, without any unavoidable
accident, necessity, or distress of weather, unladen without the
authority of the proper officers of the customs.
The 4th count charged that the goods, being of foreign growth
and manufacture and subject to the payment of duties imposed by the
laws of the United States
Page 11 U. S. 340
between 1 May, 1804, and the day of filing the libel, were
imported from some foreign port or place to the attorney unknown
into some port of the United States to the said attorney unknown in
a certain vessel to the said attorney unknown, and were afterwards
and before filing the libel unladed at the said last mentioned port
from the said vessel without a permit from the proper officers of
the customs of the last mentioned port.
The 5th count charged that the goods were imported into Boston
and were falsely and by a false name and denomination entered at
the custom house of the port of Boston.
The 6th count charged that they were imported into a port of the
United States to the attorney unknown, and were falsely and by a
false name and denomination entered at the custom house of such
port.
The 7th count stated that the goods were of the manufacture of
Great Britain, and were imported into New York, between 1 March,
1808, and the day of filing the libel, from some foreign port or
place to the attorney unknown.
The 8th count stated that they were so imported into Boston.
The 9th count stated them to have been so imported into
Philadelphia.
The 10th count averred them to have been so imported into
Baltimore.
The 11th count stated them to have been so imported into some
port of the United States, to the attorney unknown.
The 1st count was under the embargo law.
The 2d, 3d, 4th, 5th and 6th counts were under the collection
law.
The other counts were under the nonimportation acts
Page 11 U. S. 341
of 18 April, 1806, Vol. 8, p. 80, and 19 Dec. 1806, Vol. 8, p.
219.
Page 11 U. S. 344
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the Court as
follows:
This is a writ of error to a judgment of the Circuit Court for
the District of Maryland affirming a judgment of the district
court, which condemned the cargo of the
Wendell as being
forfeited to the United States.
The first point made by the plaintiff in error is that the
information filed in the cause is totally insufficient to sustain a
judgment of condemnation.
The information consists of several counts, to all of which
exceptions are taken. The Court, however, is of opinion that the
4th count is good, and this renders it unnecessary to decide on the
others.
That count is founded on the 50th section of the collection law,
and alleges every fact material to the offense.
It is, however, objected to this count that the time and place
of importation, and the vessel in which it was made, are not
alleged in the information, but are stated to be unknown to the
attorney.
Page 11 U. S. 345
These circumstances are not essential to the offense, nor can
they, from the nature of the case, be presumed to be known to the
prosecuting officer.
The offense is charged in such a manner as to come fully within
the law, and is alleged to have been committed after the passage of
the act, and before the exhibition of the information. This
allegation in such a case is all that can be required.
The 4th count of the information being sufficient in law, the
Court will proceed to examine the testimony adduced to support
it.
It is proved incontestably that the goods are of foreign
manufacture and consequently have been imported into the United
States.
The circumstances, on which the suspicion is founded that they
have been landed without a permit, are
1st. That the whole cargo in fact belongs to the claimant, and
yet was shipped from Boston in the names of thirteen different
persons, no one of whom had any interest in it, or was consulted
respecting it, and several of whom have no real existence.
2d. That no evidence exists of a legal importation into Boston,
the port from which they were shipped, to Baltimore, where they
were seized.
3d. That the original marks are removed, and others substituted
in their place.
The counsel for the claimant has reviewed these circumstances
separately, and has contended that no one of them furnishes that
solid ground of suspicion which can create a presumption of guilt
and put his client on the proof of his innocence. That they are
either indifferent in themselves -- mere casualties -- or are
reasonably accounted for.
To the employment of fictitious names as shippers, he says that
if the circumstance be not totally immaterial, it is sufficiently
accounted for by the deposition of William
Page 11 U. S. 346
French, who says
"he understood that the claimant in the cause, was in
embarrassed circumstances some time before the shipment of these
goods, and that he has understood and believes from general report
that, for the purpose of preventing his property from being
attached, he was in the habit of shipping his property in the names
of other persons."
The Court is of opinion that the circumstance is far from being
immaterial. It is certainly unusual for a merchant to cover his
transactions with a veil of mystery and to trade under fictitious
names. The manner in which this mysterious conduct is accounted for
is not satisfactory. It does not appear that his creditors were in
Baltimore, or would be more disposed to attach his property in that
place than in Boston, and it does not appear that in Boston the
names of others were borrowed to protect his property from his
creditors. The fact itself, if true, might be proved by other and
better testimony. This habit might have been proved by his
clerks.
An attempt is made to account for the circumstance that the
goods were not regularly entered at the custom house of Boston, by
the testimony of the same William French, who deposes that goods to
a large amount are transported by land to Boston, and if intended
for domestic consumption, are generally unaccompanied by
certificates of having paid the duties. The inference is therefore
considered as a fair one, that these goods may have paid the duties
at some other port where they were purchased by Mr. Locke, and
transported by land to Boston.
The Court is not satisfied with this inference. Goods in
packages, unaccompanied by certificates of having paid the duties,
are always liable to be questioned on that account. Large
purchasers therefore, even where reexportation is not intended,
would choose to be furnished with this protection. It is a
precaution which costs nothing, and which a prudent merchant will
use. The presumption, therefore, is always against the person who
is in possession of goods in the original packages without these
documents. This presumption ought to be removed, and may be
removed, not by proving
Page 11 U. S. 347
that cases have existed where a purchaser of goods, that have
been regularly entered, has omitted to furnish himself with
certificates, but that the particular case may reasonably be
supposed to be of that description. The actual importation or the
actual purchase of the very goods or of goods of the same
description may be proved and ought to be proved by a person who
has been so negligent as not to obtain certificates that would
exempt them from forfeiture.
The alteration of the original marks has been treated as an
immaterial circumstance because no criminal motive can be assigned
for it. This alteration, it is said, was not calculated to impress
the revenue officers with the opinion that the duties had been
paid, and is therefore not to be considered as made with that
motive.
Certainly the alteration was not made without a motive. Men do
not usually employ so much labor for nothing. If they use mystery
without an object, they must expect to excite suspicion.
To do away that suspicion, they ought to show an object.
In the present case, it is not improbable that the motive was to
relieve the goods from the suspicion of being imported in violation
of the then existing prohibitory laws. One witness, who deposes
that the goods were of British manufacture, also deposes that he
never saw goods imported from Great Britain with such marks as
those which were found on the goods of Mr. Locke. In the absence of
other motives, the mind unavoidably suggests this.
If these circumstances were even light, taken separately they
derive considerable weight from being united in the same case. If
these goods have really paid a duty, it is peculiarly unfortunate
that they should have been shipped without certificates of that
fact, under fictitious names, from a port where they were not
entered, and that the marks of the packages should have been
changed. It is peculiarly unfortunate that these circumstances
cannot be explained away by showing that the goods have been
entered elsewhere, or even
Page 11 U. S. 348
that the claimant has purchased such goods from any person
whatever.
These combined circumstances furnish, in the opinion of the
Court, just cause to suspect that the goods, wares, and merchandise
against which the information in this case was filed have incurred
the penalties of the law.
But the counsel for the claimant contends that this is not
enough to justify the court in requiring exculpatory evidence from
his client. Guilt, he says, must be proved before the presumption
of innocence can be removed.
The Court does not so understand the act of Congress. The words
of the 71st section of the collection law, which apply to the case,
are these:
"And in actions, suits, or informations to be brought, where any
seizure shall be made pursuant to this act, if the property be
claimed by any person, in every such case the
onus
probandi shall be upon such claimant. . . . But the
onus
probandi shall be on the claimant, only where probable cause
is shown for such prosecution, to be judged of by the court before
whom the prosecution is had."
It is contended that probable cause means
prima facie
evidence, or in other words such evidence as, in the absence of
exculpatory proof, would justify condemnation.
This argument has been very satisfactorily answered on the part
of the United States by the observation that this would render the
provision totally inoperative. It may be added that the term
"probable cause," according to its usual acceptation, means less
than evidence which would justify condemnation, and in all cases of
seizure has a fixed and well known meaning. It imports a seizure
made under circumstances which warrant suspicion. In this, its
legal sense, the Court must understand the term to have been used
by Congress.
The Court is of opinion that there is no error and that the
judgment be affirmed with costs.
