651 Chests of Tea v. United States.

been stolen from the stores in Philadelphia. And the principles laid down by the Court, in the case referred to, apply with peculiar force-"That a forfeiture can only be applied to those cases in which the means prescribed for the prevention of a forfeiture may be employed; and that the law is not understood to forfeit the property of owners, on account of the misconduct of mere strangers, over whom such owners could have no control."

I abstain from any remarks in relation to the conduct of the officers of inspection, who had charge of the storehouse in Philadelphia in which the teas were deposited, except barely to observe, that the teas could not have been removed without fraud or gross negligence in them; and it would be dangerous, and a violation of all sound principles, to admit a construction of the law, which, in its consequences, might reward such misconduct with a portion of the forfeiture. For if these teas are forfeited, they would have been equally liable to forfeiture, if they had been seized by a custom-house officer in Philadelphia whilst on their way from the store to the vessel in which they were transported to this city.

So far as the forfeiture may be claimed on the allegation of concealment, it is sufficient to say, the fact is expressly disproved by the special verdict.

There was not, therefore, made out, on the part of the United States, the presumptive evidence which the 43d section of the act declares shall render the property liable to forfeiture. And the claimants were under no necessity of proving that the teas were imported into the United States according to law, and the duties paid or secured.

2. This would supersede the necessity of examining the second point that has been made in this cause. But as the ques

651 Chests of Tea v. United States.

tion has been fully argued, it may not be amiss for me briefly to state the view I have taken of it. The special verdict puts at rest all questions that could arise respecting the legality of importation: And under this branch of the case, the only inquiry is, whether by the general bond (as it is called) of the importer, and the deposite of the teas as required by law, in such cases, the duties were secured within the meaning and true interpretation of the 62d section of the act.

If we look at this question upon general principles, and judge of it according to the common or legal understanding of such a transaction, independent of any statutory provision, no doubt could arise. To say that a bond, fixing the amount of a debt, and limiting the time of payment, accompanied with a deposite of goods to double the amount in value, to be held as a pledge, with authority to sell the same at the expiration of the time limited for payment, and out of the proceeds to pay the debt, is not a security for such debt, would be considered an extraordinary proposition, and could not be sanctioned. If so, is there any thing either in the letter or in the spirit and policy of the collection law, calling for the application of other and different principles ?

This 62d section of the act declares, that, with respect to teas imported from China or Europe, it shall be at the option of the importer to be determined at the time of making the entry, either to secure the duties thereon, on the same terms and stipulations as on other goods, &c. or to give his own bond in double the amount of the duties, with a condition for the payment of the duties in two years from the date of the bond, which the Collector is directed to accept without surety, (that is to say, personal surety,) upon the terms particularly specified in the act: Which are substantially, that the teas shall be deposited at the expense of the importer in a storehouse, to be agreed upon between the importer and inspector of the revenue, upon which storehouse the inspector is requir

651 Chests of Tea v. United States.

ed to affix two locks, the key of one to be kept by the importer, and the key of the other by the inspector, who shall attend, at all reasonable times, for the purpose of delivering the teas out of the storehouse. But no delivery is to be made without a permit in writing from the Collector and Naval Officer. And to obtain such permit, the duties upon the teas so to be delivered must be first paid to the Collector, or a bond with sureties to the satisfaction of the Collector, given in double the amount of the duties, payable as specified in the act. And if the duties on any parcel of the teas shall not have been paid or secured to be paid in the manner last specified, (that is by bond with sureties,) within the term of two years, the Collector is authorized and required to sell so much. of the teas, as may be necessary to pay the duties and expenses on the teas remaining in store, and to return the overplus, if any, to the owner or owners thereof.

There is nothing in this provision essentially to vary it from the ordinary deposite of goods between individuals, as a pledge to secure the payment of a debt. It is unimportant that the importer was liable for the duties without his bond, or that the government had possession of the teas, and a lien for the duties before the deposite. Of this there can be no doubt. But the government, by the provisions of this act, has agreed to hold this security under a different modification, and with different powers, than it possessed before. And whether this arrangement is exclusively for the accommodation and benefit of the importer, or not, cannot alter the question. The possession of the property and the liability of the importer constituted the security which the government had for the duties; and that continues until discharged, from time to time, upon different parcels of teas delivered out of store, under the permit of the Collector, according to the provisions of the act. And what security could be more ample and satisfactory to the government? It is much more safe than the personal responsibility of individuals, especially upon so

651 Chests of Tea v. United States.

long a credit as two years. This security cannot be lost without the misconduct of the agents of the government.

I do not mean to be understood that the lien is discharged by any such misconduct, if possession is regained so as to enable the government to enforce the lien. But how long such lien continues, after the teas have got into circulation in the market, is a question I leave untouched.

If the teas remain in store for the two years, under the general bond, can it with any propriety be said, that the government has no security for the duties? The law does not authorize the landing until the duties are paid or secured. And if the general bond of the importer, and the possession of the teas, landed and held under the inspection and control of the officers of the customs, (according to the 38th section of the act,) and the election of the importer, to have them deposited in stores, do not constitute the security, by what authority were they landed? The security required to be given, upon granting the permit, to deliver the teas out of store in parcels, cannot be the security required upon landing. That is an after transaction, and totally distinct in its provisions. The one is the general bond of the importer, on a credit of two years, and a deposite of the teas in the store. The other the personal security of individuals for the duties upon the particular parcels delivered out of store, and payable at much shorter periods, according to the amount of duties. The latter is pro tanto a substitution for the former. If at the expiration of two years the duties shall not have been paid, or secured by bond, with sureties, so as to discharge the lien, the teas are dealt with in the same manner as property pledged in ordinary cases as security for a debt. They are to be sold and the debt and expenses paid, and the surplus returned to the owner;-not forfeited.

The acceptance of goods as a deposite for the security of duties in lieu of personal security, is a provision incorporated in all our collection laws, from the first organization of the

651 Chests of Tea v. United States.

government to the present time. The Collector, in lieu of sureties, is authorized to accept of a deposite of so much of the goods as shall in his judgment be sufficient security for the amount of the duties for which the bond shall have been given; which goods are to be kept at the expense and risk of the party on whose account they have been deposited, until the bond becomes due; and if the bond shall not then be paid, so much of the deposited goods as shall be necessary to pay the same, with the costs and charges, are to be sold.

These are essentially the same provisions as those in relation to teas. There is a bond in both cases given by the importer. The goods are substituted in place of sureties, and are called a deposite. If the bond in each case shall not be paid according to its condition, the goods are to be sold, and the duties and expenses paid, and the surplus returned to the owner. There can be no reason why the same meaning should not be attached to the term deposite in both cases. If in the one case it has a technical meaning, and signifies a pledge, I am unable to discover why it should not have the same meaning in the other. The only difference between the cases is, that with respect to teas, there is a deposite of the whole, and the lien continues, until discharged by a substitution of personal security, as they are delivered out of store in parcels as may be required. And with respect to other goods, a part of the importation on which the duties were payable, are received as a substitute for sureties, and the lien on the residue is at once discharged. But this cannot materially change the essence and nature of the transaction. The deposite in both cases is in lieu of personal sureties. For with respect to teas as well as other goods, the importer has an option to give a bond with sureties, instead of making a deposite.

e See acts 1789 and 1790, 2 vol. L. U. S. 23 and 161. Act 1799, 3 vol. Id. 195.