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The Pamphlet Collection of Sir Robert Stout: Volume 56

Responsibility For Seizures

Responsibility For Seizures.

The last clause of the first section covers a large range of inquiry, not only into the existing law but into the existing machinery for its enforcement. The legal effect, in practical administration, of the last clause of the first section of the proposed bill, if it shall become a law, will be, to require the Collector to seize all merchandise embraced in an entry whenever the appraising officer shall report to him an appraised value which shall exceed the entered value by more than fifteen per cent., and to report the seizure to the District Attorney for prosecution. The section does not declare distinctly whether the Collector shall seize upon a report by the local appraiser, or whether he shall await a reappraisal, or whether if the two reappraisers disagree he shall await his own decision between them. If the law commands the Collector to seize merchandise on a report to him by an appraising officer of a specific fact, to wit, a difference of fifteen per centum between the entered and the appraised value of merchandise, then the Collector should not be held responsible in damages for the consequences of the seizure.

The fifth section of the proposed law provides for burden of proof in case probable cause is shown for the prosecution. But if the law peremptorily commands the Collector to seize, it is to be inferred that no Court will say that a probable cause did not exist for a seizure specifically commanded by the law. What will be the effect of the proposed first section, on a trial for forfeiture under a seizure made in obedience to the section? The third section punishes by forfeiture an entry "knowingly made or attempted to be made by a false invoice." Is not page XXXII the jury to pass upon the question of guilty knowledge? But if the law declares that every entry of merchandise "shall be deemed fraudulent" if the appraised value shall exceed the entered value by more than fifteen per cent., what discretion will be left to the jury if the evidence shall be that the appraised value did thus exceed the entered value? I shall return to this branch of the subject again when I come to consider the second section. Is it probable that appraising officers will advance values above fifteen per cent, if they realize that such important consequences as forfeiture of the merchandise will follow? It will be observed that the first section does not require appraising officers to inquire into the intent with which the invoice was made and the entry was presented, but the proposed law infers a fraudulent intent from the finding by appraising officers of value greater by fifteen per cent, than the entered value. If this section shall become a law, may not merchandise be forfeited without anybody, or any tribunal, considering, or deciding, the question of guilty knowledge and criminal intention?

It will not escape the attention of Congress that (he first section of the proposed bill requires the Collector to levy and enforce the payment of the regular duty, and the penal or additional duty prescribed therein. The third section enforces a forfeiture under the conditions herein prescribed, and requires a suit to be begun against the person having made the entry to recover the value of the merchandise if the same cannot be proceeded against "in rem," but does the bill contemplate that the forfeiture shall be in addition to the regular duty and penal duty which may already have been paid? If the merchandise shall have passed out of the possession of the Government, and is seized, or, if the merchandise cannot be found and a suit be brought to forfeit the value, then of course both the regular and penal duty will have been paid thereon. If it be the intention of the law that, in case of forfeiture, the penal duty, and the regular duty, shall be returned to the person making the entry, there should be a provision in the law authorizing the Secretary of the Treasury to draw his warrant for the duties to be returned?