On Rehearing.
Since our opinion in these cases was filed, upon which we directed a reversal of the judgment, counsel for defendant in error, upon their attention being drawn to certain decisions of the Supreme Court of the United States, to which we shall presently refer, and conceiving that they militate against the right of the United States to remove these cases into this court by writ of error, moves for a rehearing to the end that the question of the jurisdiction of this court may be considered, and, if found not to exist, that the writs of error be dismissed. No doubt, the objection is one which we ought to consider and act upon if presented at any time before we lose control of the cases. The objection is that these are criminal cases, and it is urged that a writ of error will not lie at the instance of the government in a criminal case. The second of these propositions cannot be denied. The law was so settled in United States v. Sanges, 144 U. S. 310, 12 Sup. Ct. 609, 36 L. Ed. 445. But the question remains whether these are criminal cases within the meaning of that rule.
The petition in each case was for the recovery of a penalty, and the actions are in the similitude of the common-law action of debt; the form being simplified by the rules of Code pleading. Section 4 of the,act of Congress [U. S. Comp. St. Supp. 1907, p. 919], upon which the actions are based, provides “That the penalty created by the preceding section shall be recovered by civil action in the name of United States in the Circuit or District Court,” etc. The contention that these are criminal cases, and that therefore the United States cannot have a writ of error, is said to find support in the decisions of the Supreme Court in Boyd v. United States, 116 U. S. 616, 6 Sup. Ct. 524, 29 L. Ed. 746, and Lees v. United States, 150 U. S. 476, 14 Sup. Ct. 163, 37 L. Ed. 1150. In both of these cases the court was considering the immunities secured to defendants by the constitutional provisions of the fourth and fifth amendments in the Boyd Case, and the sixth amendment in the Lees Case. It was said that such actions were “criminal in their nature.” And it was because of that similitude that, having regard to the principle and purpose of the constitutional provisions, the court held they should be applied. In the present case, no such considerations apply. No right secured by the Constitution is *39affected. In cases not so affected the question would be whether the statute intends that the penalty shall be recovered only by conviction upon an indictment, or may be recovered by a civil action. This distinction and the consequences are considered with attention by Mr. Justice Strong in United States v. Claflin, 97 U. S. 546, 24 L. Ed. 1082, 1085. The subject under discussion was directly involved in the case of United States v. Zucker, 161 U. S. 475, 16 Sup. Ct. 641, 40 L. Ed. 777. That was a civil action brought by the United States to recover the value of certain merchandise which it was claimed had been forfeited in consequence of the violation of the customs act. Upon the trial the government offered in evidence a deposition taken in France. The defendant objected that he was entitled to be confronted by the witness because the action involved the commission of a criminal offense. The court below sustained the objection. But the Supreme Court upon a writ of error, sued out by the United States, held that this was error, and reversed the judgment. Mr. Justice Harlan, in delivering the opinion of the court, canvassed the Boyd and the Fees Cases, and pointed out their inapplicability. It would seem that the Zucker Case presented even better ground for the objection made by the defendant in that case than the ground for the objection here. Moreover, it is significant that in the Zucker Case the writ of error was sued out by the United States, and the cause was entertained and decided on its merits. It seems hardly possible to think that if the court had regarded such an action as a criminal proceeding, it would have done otherwise than to have simply dismissed the writ of error on its own motion. So, too, in the Claflin Case, supra, the writ of error was sued out by the United States, and the cause was considered on its merits. The action of debt has long been used, and regarded as the appropriate remedy for the collection of penalties prescribed for the violation of statutes. Atcheson v. Ever ett, Cowper, 383; Stockwell v. United States, 13 Wall. 531, 20 L. Ed. 491; Lebanon v. Olcott, 1 N. H. 339; Garman v. Gamble, 10 Watts (Pa.) 382; Ordway v. Central Nat. Bank, 47 Md. 217, 28 Am. Rep. 455 ; Webster v. People, 14 Ill. 365.
One further observation: The rule that the government may not have a writ of error is a rule of the common law, and not the subject of a constitutional guaranty. It is therefore subject to modification by the legislature. Congress has provided in the present case that the remedy shall be by a civil action, and the fair import of its meaning would seem to be an action having the ordinary incidents of a civil action, among which is the right to have the judgment reviewed. “It is to be proceeded in, so far as the action is concerned, just as in any other action of debt,” said Thompson, J., in Bartolett v. Achey, 38 Pa. 273.
Petition denied.