The objection made at the bar to the decree of the district court is that when these goods- were seized the time had not arrived for the claimants to enter them; that it did not appear they were in any way connected with the concealment of the goods, or intended to defraud the revenue; and that in point of fact, their agent offered to enter and pay the duties on the goods, as soon as he was aware of their arrival. And it is urged that it was not the purpose of congress, nor required by the true construction of the section in question, to inflict a forfeiture upon an owner who was innocent of any fraud, and had not been guilty even of any laches. The sixty-eighth section of the collection act, on which the libel is founded, provides that “Every collector, &c., shall have full power and authority to enter any ship or vessel in which they shall have *1074reason to suspect any goods, wares, or merchandise, subject to any duly, are concealed; and therein to search for, seize, and secure any such goods, wares, and merchandise; and all such goods, wares, and merchandise, on which the duty shall not have been paid, or secured to be paid, shall be forfeited.”
It has been decided that the concealment here spoken of is. a withdrawal of the goods from public view, on account of their being subject to duties, or from some fraudulent motive. U. S. v. 1,250 Chests of Tea, 12 Wheat. [25 U. S.] 498. The question is, whether such withdrawal must be by the owner or consignee, or by his procurement, or with his concurrence. So to hold would be to require what the language of the act does not require. That makes the forfeiture depend solely on the concealment of goods on which the duties have not been paid or secured, without regard to the person by whom the concealment was practised. Nor are the subject-matter of the law, and the mischief it was designed to prevent, such as to call for a construction which would render the act or concurrence of the owner or consignee necessary. That- subject-matter is a concealment of dutiable goods, with intent to avoid payment of the legal duties thereon, or some other fraudulent intent. Whether this be done by the master alone, or by him in combination with the consignee, the revenue is endangered. Congress might have provided that the forfeiture should not be inflicted unless the time had passed for the consignee to make entry of them. But this would have put it in the power of the consignee to avail of the concealment, and smuggle the goods, if opportunity should offer, after arrival, and before the expiration of the fifteen days allowed for their entry; and to enter them, and escape all punishment, if he should find he could not profit by the concealment. In other words, it would not have punished the mere concealment, which it was the manifest purpose of this section to prevent. So far from providing that there must not only be a concealment, but the time must have arrived for the consignee to act, this section sets up a different standard. It requires, to escape a forfeiture on account of concealment, that the duties should have been actually paid, or secured to be paid. Nothing short of this is sufficient; and this is inconsistent with the construction contended for by the claimants, when they insist that it is enough that the time had not arrived to enter the goods.
The argument derived from the alleged injustice of punishing the owner of the p'roperty for an act which he neither practised nor consented to, has been often addressed to the courts of the United States in similar cases, but has never induced them to insert in a law a substantive requirement which it did not contain.
It was pressed on Chief Justice Marshall in U. S. v. The Little Charles [Case No. 15,612], which was a libel for a forfeiture under the embargo laws. The answer he made was: “This is not a proceeding against the owner; it is a proceeding against the vessel, for an offence committed by the vessel; which is not the less an offence, and does not the less subject her to forfeiture, because it was committed without the authority and against the will of the owner.” So in the case of The Malek Adhel, 2 How. [43 U. S.] 233, which was a libel to enforce a forfeiture on account of piratical aggression, the question was made whether the innocence of the owners could withdraw the ship from the penalty of confiscation under the act of congress; and, upon the ground that the act made no exception whether the aggression be with or without the co-operation of the owner; and that it was not uncommon, in cases under the revenue and other laws, to treat the acts of the master and crew as binding the interest of the owner, it was held that no co-operation by him need be shown. And though in that case the cargo was held exempt, it was because the act did not, by its terms, exact its forfeiture. (See also the other cases therein referred to.) Revenue laws should be so construed as effectually to prevent the mischief which'they were designed to prohibit. Taylor v. U. S., 3 How. [44 U. S.] 197. To require the co-operation of the owner in concealing the property to be shown, would leave a wide opening for fraud. No doubt eases of hardship may possibly occur; but they are provided for by the power to remit the forfeiture, lodged with the secretary of the treasury.
I think I ought to say further that in this particular case, though the consignees may be entirely innocent, yet in the actual state of the proofs before me, the burthen of proof is upon them, and they have failed to support that burthen. Under the seventy-first section of the collection act, where probable cause for the prosecution is shown to the court, the burthen is on the claimant. Here the goods were not only found concealed under such circumstances as tended very’ strongly to show an intention to evade payment of duties, but they were imported without any invoice, bill of lading, or consular certificate, the absence of which directly implicates the owners of the goods, and affords a strong prima facie case of an intent to smuggle them, and this is not met by evidence on their part.
The decree of the district court is affirmed, with costs.