manner, as in case of the imposition of duties on merchandise.1 The tonnage tax applies not only to domestic but to foreign vessels, and those countries which discriminate against the United States pay a much higher tax on their vessels.

The light money is a tax only on foreign vessels, which is imposed by all nations, and is collected just as the tonnage tax.

The Secretary of the Treasury has the power to refund duties if they have been improperly exacted, whether the protest and appeal has been taken or not. It is now provided, that when any person is charged with having incurred a penalty or fine, or is interested in goods or a vessel of the value of $1,000 and upwards, which has been seized, he may file a petition with the judge of the district where the violation occurred. The judge, in a summary mode, either directly or through his commissioner, is to ascertain the facts which, with the evidence, are to be certified to the secretary. If from this record. the secretary is satisfied that the act was done without willful negligence or intention to defraud, he may remit the penalty or forfeiture and direct the prosecution to cease, upon such terms as he deems reasonable. The collector and district attorney are to be notified of the application to the secretary.

Where duties have been paid under the rulings of one secretary they are not to be refunded by another, unless in accordance with the decision of a circuit or district court of the United States, and not then unless the attorney general shall certify that no appeal will be taken from the decision on behalf of the United States. The same statute provides that no ruling of one secretary is to be reversed or modified by a succeeding secretary, adversely to the United States, except upon the recommendation of the attorney general, or the decision of a circuit or district court of the United States.

§ 162. Penalties and Forfeitures-Master's Failure to Report -Fraudulent Undervaluation.-The customs laws impose heavy penalties on those who violate them, and they are often imposed where there is no guilty intent, but for a mere omission or neglect to comply with their requirements. These penalties fall not only on the owners of the goods who import them contrary to law, but they are visited on the master of the vessel or other vehicle in which the importation takes place, and in many cases the goods themselves are

'R. S. U. S. § 2931.

R. S. U. S. §§ 30121, 3013; Murray v. Chester, 22 Int. Rev. Rec. 237.

3 18 Stat. U. S. pp. 189, 190, §§ 17 to 20.

4 18 Stat. U. S. pp. 469, 470, § 1 to 4.

forfeited to the government, together with the vessel in which the importation is made. These laws demand implicit obedience and an accurate performance of all the conditions attached to the privilege of importing foreign merchandise.

The master of a vessel who departs from a port after arrival within the limits of any collection district, without making report to the collector of the district, is liable to a fine of $400. But if it is shown, either to the collector of the port at which he arrives, or in court, if there be a prosecution, that the departure was occasioned by stress of weather, pursuit or duress of enemies, or other necessity, the penalty will not be incurred. So if the master fails to report to the chief officer of customs, or to make the report in writing required within forty-eight hours after arrival, for such neglect or omission he is liable to a penalty of $1,000.2

If any goods not on the manifest are imported in any vessel, foreign or domestic, the master is liable to a penalty double the value of the merchandise; and if such goods are consigned to master, mate, any of the officers or crew, they are forfeited. The importation is complete and the offense committed as soon as the vessel arrives within the limits of a port of entry with intent to unload them. Where a master took goods to smuggle to A., but after arrival in the port of entry he changed his mind and entered them on the manifest, it was held to be too late, as the offense had already been committed. In such case the master is a consignee in the sense of the statute, and the goods are forfeited. There was a proviso to the original act, which is now found in § 2870 of the Revised Statutes, by which, if it be shown that the manifest has been lost or mislaid without fraud or collusion, or if it has become defaced by accident, or it is incorrect by mistake, and that no part of the cargo without proper manifest was unshipped after it was taken on board, then the penalty is not incurred.

Until the act of 1866, the master alone was liable to this penalty, unless the goods were consigned as stated above. Since that time the vessel may be held for the penalty incurred by the master, and may be summarily libeled. It is not necessary to commence proceedings

1 R. S. U. S. § 2773; The Apollon, 9 Wheat. 362; United States v. Bearse, 4 Mason, 192.

2 R. S. U. S. § 2774. See United States v. Randall, 1 Sprague, 546, as to what is a sufficient report.

3

R. S. U. S. § 2809. The act of 1799, § 24, the original of this, did not apply to foreign vessels. The Governor Cushman, 1 Abb. C. C. 14; United States v. Fairclough, 4 Wash. C. C. 398.

4 United States v. Ten Thousand Cigars, 2 Curt. C. C. 436.

against the master, or to have a seizure of the vessel. The act does not contemplate a revenue seizure in such a sense that the title passes to the United States for a forfeiture; it merely creates a lien on the vessel for the payment of the penalty. The seizure referred to in the statute, is a seizure by the marshal under proceedings in rem, and a suit to enforce the penalty is a case of civil and admiralty jurisdiction.1

On the arrival of a steamer from Havana, eleven lots of cigars were found in different parts of the vessel-in the coal bunker, in the forecastle, and in the lower hold. None of the lots contained as many as 3,000 cigars, which is the smallest number that can be entered. There were no shipping marks on the lots, and no permits had been given for landing them. These facts were considered conclusive that none of these goods were intended to be on the manifest, and all must have been intended to be landed. The steamer was held for the penalty.

A steamer entered the port of New York from England, and articles subject to duty were found on board of her after her arrival, concealed in the purser's room and in the ship's storeroom, which had been brought in her from England, and which were not entered on the ship's manifest. The master testified that he had no knowledge or information at any time, that the goods were in the vessel, that he made up the manifest and took all precautions to prevent smuggling. The vessel was held for the penalty, and the case did not come within $2810.3

When merchandise is imported from adjacent foreign territory, the manifest is the principal document, and a failure to deliver one at the nearest collector's office to the boundary line, subjects the master to a penalty of four times the value of the merchandise, and a forfeiture of the vessel or carriage, and the merchandise." The penalty is

for the omission or neglect, and the intent is not material.5

Fraudulent Undervaluation.-Merchandise entered which is not invoiced at the actual cost at the place of exportation, with design to evade the payment of duty, subjects the goods to forfeiture, or the person making the entry to a penalty equal to the value of the goods."

1 R. S. U. S. § 3088; The Steamer Missouri, 3 Ben. 508.

The Missouri, 4 Ben. 410. This act applies to every case where the master or owner of the vessel, or the vessel itself, becomes liable to a penalty under the revenue laws.

The Helvetia, 6 Ben. 51. See The Missouri, 9 Blatch. C. C. 433. See Treasury Circular No. 2669, 22 Int. Rev. Rec. 96, 97, as to seizure for omission from the manifest. 4 R. S. U. S. § 3099.

5 U. S. v. Smith, 2 Blatch. C. C. 187; Pine Lumber, 4 Blatch. C. C. 182.

R. S. U. S. § 2839.

Where two invoices were sent to a consignee, one at a higher value than the other, and the consignee making the entry delivered both invoices, the penalty was not incurred.1 And if the libel charges that the goods were invoiced "below the cost at Bordeaux, the place of exportation," when the goods were shipped from Liverpool, no evidence could be received that the invoice was below value at Liverpool.2

The origin of this section of the Revised Statutes is § 66 of the act of 1799. Its violation consists in making the invoice below actual cost, with the intent to evade the payment of duties. It is not material when the fraud is discovered, and in that respect it differs from $2901, where the period of discovery is material. The offense of fraudulent undervaluation is not affected by the penalties imposed on smuggling, nor by the act imposing the twenty per cent. penalties; the provisions are distinct. "The revenue laws contain numerous provisions to guard against frauds by importers, and the rule which repeals a statute by implication is not applied with strictness where a subsequent statute has a provision on the same subject, but differing in some respect from the former. Both are upheld unless the repugnancy is clear and positive, so as to leave no doubt of the intent of Congress. And this is especially true where the new law may have been auxiliary to and in aid of the old, and for the purpose of more effectually guarding against fraud."4 This is now the settled rule of construction of the customs laws. Effect is given to all the acts on the subject, and the repugnancy must be clear and palpable to repeal an act by implication.

In determining what is sufficient evidence to make out a case of undervaluation, there is a rule as to the burden of proof in customs which has an important bearing upon all cases arising under the law where there is a seizure of property, and proceedings are taken to have a condemnation of the property seized. This rule is that where the government introduces evidence to establish probable cause for the seizure, then the burden of proof is thrown on the claimant of the property seized to show that the offense which creates the forfeiture has not been committed. It is the province of the court to determine when probable cause is established. What is probable cause must depend very much upon the particular case. It is difficult to give any definition of it, beyond saying that it is such that

1 United States v. Riddle, 5 Cranch, 311.

? United States v. 150 Crates of Earthen Ware, 3 Wheat. 232.

8 United States v. Sixty-seven Packages, 17 How. S5; s. P. Wood v. United States, 16 Peters, 342. 4 Nelson, J., in 17 How. 93.

the evidence makes a prima facie case, which, if not rebutted or explained, will justify a verdict against the claimant. Where the government introduced a number of merchants familiar with the goods, who examined them, and their average estimate was fifty per cent. above the invoice price, the appraisers estimated them above the invoice price, and notice was given to the claimant to produce his books and papers containing an account of the importations and his dealings with foreign houses, together with his and their correspondence concerning the same, which he failed to produce, and the case was then rested, this was held to be a case of probable cause.1 The non-production of the evidence in his possession was considered sufficient to justify the jury in presuming that, if produced, it would be unfavorable to the claimant. It was claimed in this case that the goods having been appraised, and the duties paid, that was a bar to any prosecution for a forfeiture, but the court held that the ascertainment and payment of the duties was so distinct a matter from the passing the goods through the custom house at an undervaluation, that it had no effect upon the question before the jury.

At the time that the original of this act was enacted, there was no distinction in the customs laws between the purchaser and the manufacturer or producer, and the act only applied to a purchaser. Under the present customs laws there is a distinction between the two. The purchaser states in his invoice the actual cost of the merchandise at the place of export, while the manufacturer states that it is at the fair market value. Now § 2839 imposes a forfeiture on the goods which are invoiced below actual cost with the intent to evade payment of duties. The actual cost to a manufacturer, if the statute applies to him at all, is a very different thing from the actual cost to a purchaser. But taking all the revenue acts together as a system, and keeping in mind the broad distinction made between the purchaser and manufacturer or producer, the statute only reaches the case of a purchaser, and does not cover the case of a person who procures his goods in some other manner than by purchase. But if an importer makes an entry as purchaser, he cannot change it to a producer's entry, and thus avoid the forfeiture.3

The government has the right to proceed under this statute either for the value of the goods, or for a forfeiture of the goods. In case of a forfeiture the title of the United States is not complete until a

1 Clifton v. United States, 4 How. 242; Wood v. United States, 16 Peters, 342; see Buckley v. United States, 4 How. 251.

United States v. 26 Cases of Rubber Boots, 1 Cliff, 580.

8 Alfonson v. United States, 2 Story, 421.