Page:Federal Reporter, 1st Series, Volume 8.djvu/599

 UNITED STATES V. THEEE TRUNKS. 585 �When the violation of the law is admitted or judicially eatablished, the burden of proof is very reasonably cast upon the offender to show that it was committed without wilful negligence or intention to defraud. And in pennitting a remission after such proof is fur- nished, the act went as far as justice or reason requires, or as is consistent with the efficient execution of the revenue laws. But by the sixteenth section of the act of 1874, which was passed under very exceptional circumstances, the burden of proof to show an "actttal intention to defraud the United States" is thrown upon the govern- ment, and unless that intention is found by the jury or court "as a distinct and separate proposition," no penalty or forfeiture can be imposed. It is not sufficient under this section that the intention df the party may have been fraudulent. The court or jury must find 'that it was so in fact. This finding they can only reach when the proofs preponderate in its favor. In all cases, therefore, where the government fails to show affirmatively an "actual intention to de- fraud," judgment must be against it. �In the case at bar it is established beyond controversy that for a long series of years the practiee of importing goods by the officers and crews of steamers, without entering them on the manifest, has been tolerated, and apparently recognized as legal, by the custom- house authorities. The duties on such goods, when declared by the importer or found by the officers, have been paid and accepted, nor has the penalty imposed on the master ever been exaoted or the goods seized, except when they were concealed with an evidently fraudulent purpose. �It seems to have been supposed that the laws and regulations with regard to dutiable goods found among the personal baggage of pas- sengers, could be applied to unbroken cases of merchandise imported by the officers and crews. That this practiee opened a wide door to fraud is evident, and the seizure now in question is an attempt by the present collecter to put an end to it. There can be no question that in many instances tl'iese importations, thus sanctioned by the officers of the revenue, have been made without the slightest intention to evade the payment of duties, or suspicion of their illegality. In many others they have been made with the design of smuggling the goods if opportunity ofifered; a design whieh bas, no doubt, in very numerous cases been accomplished. To which of these categories the importa- tation of the goods in question in this case is to be referred, I haye no means of knowing. It has already been said that no concealment of them was made or attempted. The importer, a Chinese boatswain. ��� �