LOCKE
v.
THE UNITED STATES.

Absent ... . TODD, J.

*341 HARPER, for the Appellant.

*343 PINKNEY, contra.

*344 MARSHALL, Ch. J. delivered the opinion of the Court as follows:

This is a writ of error to a judgment of the Circuit Court for the district of Maryland, affirming a judgment of the district Court, which condemned the cargo of the Wendell, as being forfeited to the United States.

The first point made by the Plaintiff in error, is that the information filed in the cause, is totally insufficient to sustain a judgment of condemnation.

The information consists of several counts, to all of which exceptions are taken. The Court however, is of opinion, that the 4th count is good, and this renders it unnecessary to decide on the others.

That count is founded on the 50th section of the collection law, and alleges every fact material to the offence.

It is however objected to this count, that the time and place of importation, and the vessel in which it was made, are not alleged in the information, but are stated to be unknown to the attorney.

*345 These circumstances are not essential to the offence, nor can they, from the nature of the case, be presumed to be known to the prosecuting officer.

The offence is charged in such a manner as to come fully within the law, and is alleged to have been committed after the passage of the act, and before the exhibition of the information. This allegation, in such a case, is all that can be required.

The 4th count of the information being sufficient in law, the Court will proceed to examine the testimony adduced to support it.

It is proved incontestibly that the goods are of foreign manufacture and consequently have been imported into the United States.

The circumstances, on which the suspicion is founded that they have been landed without a permit, are,

1st. That the whole cargo in fact, belongs to the claimant, and yet was shipped from Boston in the names of thirteen different persons, no one of whom had any interest in it, or was consulted respecting it, and several of whom have no real existence.

2d. That no evidence exists of a legal importation into Boston, the port from which they were shipped, to Baltimore, where they were seized.

3d. That the original marks are removed, and others substituted in their place.

The counsel for the claimant has reviewed these circumstances separately, and has contended that no one of them furnishes that solid ground of suspicion which can create a presumption of guilt and put his client on the proof of his innocence. That they are either indifferent in themselves — mere casualties — or are reasonably accounted for.

To the employment of fictitious names as shippers, he says, that if the circumstance be not totally immaterial, it is sufficiently accounted for by the deposition of William *346 French, who says, "he understood that the claimant in the cause, was in embarrassed circumstances some time before the shipment of these goods, and that he has understood and believes from general report that, for the purpose of preventing his property from being attached, he was in the habit of shipping his property in the names of other persons."

The Court is of opinion that the circumstance is far from being immaterial. It is certainly unusual for a merchant to cover his transactions with a veil of mystery, and to trade under fictitious names. The manner in which this mysterious conduct is accounted for, is not satisfactory. It does not appear that his creditors were in Baltimore, or would be more disposed to attach his property in that place than in Boston, and it does not appear that in Boston the names of others were borrowed to protect his property from his creditors. The fact itself, if true, might be proved by other and better testimony. This habit might have been proved by his clerks.

An attempt is made to account for the circumstance that the goods were not regularly entered at the custom house of Boston, by the testimony of the same William French, who deposes that goods to a large amount are transported by land to Boston, and if intended for domestic consumption, are generally unaccompanied by certificates of having paid the duties. The inference is therefore considered as a fair one, that these goods may have paid the duties at some other port where they were purchased by Mr. Locke, and transported by land to Boston.

The Court is not satisfied with this inference. Goods in packages, unaccompanied by certificates of having paid the duties, are always liable to be questioned on that account. Large purchasers therefore, even where re-exportation is not intended, would choose to be furnished with this protection. It is a precaution which costs nothing, and which a prudent merchant will use. The presumption therefore, is always against the person who is in possession of goods in the original packages without these documents. This presumption ought to be removed, and may be removed, not by proving *347 that cases have existed where a purchaser of goods, that have been regularly entered, has omitted to furnish himself with certificates, but that the particular case may reasonably be supposed to be of that description. The actual importation, or the actual purchase of the very goods, or of goods of the same description, may be proved, and ought to be proved by a person who has been so negligent as not to obtain certificates that would exempt them from forfeiture.

The alteration of the original marks has been treated as an immaterial circumstance because no criminal motive can be assigned for it. This alteration, it is said, was not calculated to impress the revenue officers with the opinion that the duties had been paid, and is therefore not to be considered as made with that motive.

Certainly the alteration was not made without a motive. Men do not usually employ so much labor for nothing. If they use mystery without an object, they must expect to excite suspicion.

To do away that suspicion they ought to shew an object.

In the present case, it is not improbable, that the motive was to relieve the goods from the suspicion of being imported in violation of the then existing prohibitory laws. One witness, who deposes that the goods were of British manufacture, also deposes that he never saw goods imported from Great Britain with such marks as those which were found on the goods of Mr. Locke. In the absence of other motives, the mind unavoidably suggests this.

If these circumstances were even light, taken separately, they derive considerable weight from being united in the same case. If these goods have really paid a duty, it is peculiarly unfortunate that they should have been shipped without certificates of that fact, under fictitious names, from a port where they were not entered, and that the marks of the packages should have been changed. It is peculiarly unfortunate, that these circumstances cannot be explained away by showing that the goods have been entered elsewhere, or even *348 that the claimant has purchased such goods from any person whatever.

These combined circumstances furnish, in the opinion of the Court, just cause to suspect that the goods, wares, and merchandize against which the information in this case was filed, have incurred the penalties of the law.

But the counsel for the claimant contends that this is not enough to justify the Court in requiring exculpatory evidence from his client. Guilt he says must be proved before the presumption of innocence can be removed.

The Court does not so understand the act of Congress. The words of the 71st section of the collection law, which apply to the case, are these: "And in actions, "suits, or informations to be brought, where any "seizure shall be made pursuant to this act, if the property "be claimed by any person, in every such case "the onus probandi shall be upon such claimant." "But the "onus probandi shall be on the claimant, only where probable "cause is shown for such prosecution, to be judged "of by the Court before whom the prosecution is had."

It is contended, that probable cause means prima facie evidence, or, in other words, such evidence as, in the absence of exculpatory proof, would justify condemnation.

This argument has been very satisfactorily answered on the part of the United States by the observation, that this would render the provision totally inoperative. It may be added, that the term "probable cause," according to its usual acceptation, means less than evidence which would justify condemnation; and, in all cases of seizure, has a fixed and well known meaning. It imports a seizure made under circumstances which warrant suspicion. In this, its legal sense, the Court must understand the term to have been used by Congress.

The Court is of opinion that there is no error, and that the judgment be affirmed with costs.