§ 534. Action in Rem Lies to Recover Penalties Under the Revenue Laws. In the revenue and the navigation laws there are several provisions for enforcing liens by proceedings Such liens are ordinarily coeval with the indebtedness, but it seems that there are exceptions.1 in rem. "Whenever a vessel, or the owner or master of a vessel, has become subject to a penalty for a violation of the revenue laws of the United States, such vessel shall be holden for the payment of such penalty, and may be seized and proceeded against summarily by libel to recover such penalty." By this section, penalties become property debts, and the action in rem lies. By compliance with the requirements of Sec. 2981, the owner of a vessel or the consignee who has a lien forfeited merchandise for freight for bringing it from a upon foreign country, is protected and paid without intervening in the proceedings for the condemnation of the merchandise. But, where the action of the government is against the merchandise as an indebted thing, under Sec. 3088, there could not possibly be any adjudication of surplus proceeds for freight, without 1 Lien in favor of the United States held to date from seizure to recover penalty for violation of Sec. 2 Act 1838, (5 Stat. 304,) and Sec. 1, Act 1852, (10 Id. 61); The Ranier, 2 U. S. Rev. Stat. 3088. evidence. It would seem that, in such case, there should be intervention. $535. Examples of Penalties as Liens Against Vessels. Among the penalties thus enforceable in rem, (against the vessel,) the following illustrations may be given: 1. For departing from the port of arrival before having made a report or entry, four hundred dollars, 1 2. For omitting to procure a certificate, etc., five hundred dollars.2 3. For failure to have a correct manifest, the penalty is onehalf the value of the omitted merchandise. 3 4. For omitting to produce manifest and deliver copies, not exceeding five hundred dollars. 4 5. For illegal departure, five hundred dollars.5 6. For not delivering manifest at certain ports specified, etc., one hundred dollars. 7. For unlading without a permit, $1,000.7 8. For unlawful transfer, the penalty is three times the value of the goods transferred.8 9. For unlawful delivery, four hundred dollars. 10. For not furnishing provisions and accommodations to inspectors under given circumstances, one hundred dollars, 10 11. For not having reported goods on board, under given circumstances, five hundred dollars, 11 1 U. S. Rev. Stat. § 2773; The Apollon, 9 Wheat. 362; Le Tigre, 3 Wash. C. C. Rep. 572; United States r. Bearse, 4 Mason, 192; 95 Bales of Paper, 1 Paine, 149. 2 U. S. Rev. Stat. § 2784. 8 Id. § 2809; United States v. 26 Diamond Rings, 1 Sprague, 294; United States v. 10,000 Cigars, 2 Curt. 436; The Str. Missouri, 3 Ben. 508. Rev. Stat. § 2814; The Antiles, 8 Ben. 9. 5 Id. § 2828. • Id. § 2829. 7 Id. § 2867; Schr. Industry, 1 Gal. 114; Sch. Harmony, Id. 123; Schr. Betsey, 1 Mason, 354; The Virgin, U. S. Rev. Stat. § 2873; The Ger T. 12. For relanding goods entered for drawback, besides the criminal proceedings authorized, it is provided that, "in case of seizure, the same proceedings shall be had as in the case of merchandise imported contrary to law."1 13. For obstructing officers in lawfully going on ship board, etc., the penalty is from fifty to five hundred dollars. 14. For breaking locks, fastenings, etc., or landing goods clandestinely, five hundred dollars. 3 15. For concealing goods liable to seizure, etc., the penalty is from fifty to five thousand dollars, and criminal proceedings are authorized. The foregoing fifteen illustrations are not meant to include penalties to which other persons than "the owner or master of a vessel" have become subject, for Sec. 3088 does not create a lien against vessels for the acts and omissions of any but owners and masters. § 536. Penalties in Commerce with Contiguous Countries. In the 11th chapter of the 34th Title of the Statutes, on the topic, "Commerce with Contiguous Countries," the penalties are mostly fines to be recovered upon personal conviction of the offenders. And, when such criminal proceedings are not required, the action to recover the penalty would be a civil and personal one against the offender, and not a proceeding in rem against any vessel or goods to collect a sum of money, unless the person liable should be the owner or master of a vessel, who has become liable by the instrumentality of the vessel, so as to bring his case under the rule of Sec. 3088, or of a similar article of the 11th chapter of the statutes, to which attention is now called. It is enacted in the 3125th section of the Revised Statutes, that if the master of any enrolled or licensed vessel shall neglect or fail to comply with any of the provisions or requirements of the nine preceding sections, such master shall forfeit and pay to the United States the sum of twenty dollars for each failure or neglect, and that the vessel shall be liable and may be sui 1 Rev. Stat. § 3049. * Id. § 3068. Rev. Stat. § 3070. marily proceeded against, by way of libel, in any District. Court of the United States. The action in rem lies, therefore, against the vessel for the master's not presenting duplicate sworn manifests when departing from a port of a collection district to a port in another, (canal boats navigating canals within the United States, excepted,)1 for his failure to enter, upon his original manifest, cargo taken on board or discharged at any intermediate port in the United States, destined for an American port, and failure to deliver such entry, duly sworn, to the collector where the unlading of the cargo is completed, within twenty-four hours after arrival; for not filing his sworn manifest and obtaining a clearance before departing from a port in one collection district to a place in another where there is no custom house, and delivering manifest and clearance to the proper custom-house officer at the port at which the vessel next arrives after leaving the place of destination specified in the clearance;3 for unlading cargo in the night without special license, taken from any United States port on the northern, northeastern or northwestern frontiers, to another United States frontier port;4 (and for this violation of law the penalty is from one to five hundred dollars, though for the other violations, it is twenty dollars cach, as provided in Sec. 3125;) for discharging cargo, or landing passengers or baggage, from any foreign port without having obtained a permit and otherwise complying with law;5 for not delivering a manifest, subscribed and sworn, of his cargo, (if he have any,) when arriving at a custom house from a port where there was none, within twenty-four hours of arrival; but steam-tugs, duly enrolled and licensed for foreign and frontier trade, are excepted from the duty of clearing and reporting at the custom house, unless they are employed in towing rafts or vessels without sail or steam." $537, Liens and Action in Rem Under the Internal Revenue Laws. Congress has made the law that a lien shall rest all a man's property, to the amount of the internal revenue upon U. S. Rev. Stat. § 3116. 2 Id. § 3117. 3 Id. § 3118. ♦ Id. § 3120. Id. § 3121. • Id. § 3122. ' Id. § 3123. tax and the interest, costs and penalties thereunto added, if he, being "liable to pay any tax, neglects or refuses to pay the same, after demand." The lien shall rest upon all his property for his refusal to pay the tax on any part of it. The lien is in favor of the United States. 1 Whether Congress can constitutionally charge one res with the debts of another res, so as to be able to proceed in rem against X.'s one farm for the tax with lien due by X.'s other farm, (the question does not sufficiently afford two sides for interesting debate,) it is certain that an action to enforce the lien must be against an indebted thing, since it is to collect a sum of money. If neglecting or refusing to pay the tax were made an offense imputable to the thing on which the tax rests, the action would be against a guilty thing, and for its forfeiture. Even then, only the thing connected with the offense of neglect or refusal could be proceeded against, since the United States would have no jus in re to vindicate against property not liable for such offense, nor subject to such refusal or neglect on the part of the owner. But the action is not for forfeiture; it is to enforce a lien. Do the United States have any jus ad rem against that part of the delinquent's estate upon which no taxes are due?2 If this article, creating a lien where there is no indebtedness, is to be passed without comment, the following four or five sections, which provide for the procedure in vindication of the lien, should be noticed and commended for their novelty and directness. No doubt Congress evinced wisdom in avoiding the courts; for, had it required proceedings in rem to enforce a lien upon "all property and rights of property belonging to such person," (. e., the person who should refuse to pay the internal revenue tax upon one piece of his property) the courts might have asked, of the libellants, "Where is your jus ad rem?" 1 Rev. Stat. U. S., § 3186. 2 R. S., § 3186. Demand held necessary to create the lien and make it operative: United States v. The Pacific Railroad, 4 Dil. 71: Miller, J. And it attaches only to such property as is owned by the delinquent at the date of demand: United States v. Pacific R. R. et al., 1 McCrary, 1: McCrary, J. |