Page:Harvard Law Review Volume 12.djvu/581

561 NOTES. 561 against promisor and promisee an adequate remedy would be provided. There would then be an end of the illogicality and circuity now attending the actions of the beneficiary at law. Again, the rule of Lawrence v. Fox, supra, allowing a creditor to sue upon a promise made to the debtor to pay the debt, is likewise indefensible in theory, just in effect, and referable to equity. For, by creditor's bill the creditor might well enough proceed against debtor and obligor to secure the benefit of the obligation as a valuable asset of the debtor. It is, then, to be regretted that the prin- cipal case only adds to the confusion as to the rights of the beneficiary at law and suggests no solution of the general problem. Smuggling Defined. — When a penal statute describes a crime by a single word, the definition of that crime will be for the courts. So under United States Revised Statutes, § 2865, as to the crime of smuggling, — an authoritative definition of that crime remained for the United States Supreme Court at the present sitting. Keck v. United States, 19 Sup. Ct. Rep. 254. A package of diamonds intended to be smuggled was seized by a revenue officer in the stateroom of a steamer after she was moored at her dock. Upon appeal, the court, by a vote of four to three, held these facts insufficient to justify a conviction upon an indictment for smuggling, as the goods were not actually unladen and brought past the barrier of the customs without payment of duties. The minority insisted that the act of smuggling was complete when the goods were brought within the waters of the port with intent to land them without payment of duties. This difference of opinion is natural, for no provision of the statute delimits the crime. Smuggling, indeed, has a well accepted im- port in English law. The English revenue statutes from an early date have distinguished between smuggling — the act of landing goods unlaw- fully — and the various acts which might precede or follow it. But in the United States the revenue statutes, until 1842, forbade all such acts in- discriminately, and made no mention of smuggling by name. The main argument of the majority has then much force : that the present statute of 1842, by providing, in a separate clause paraphrasing the English stat- ute, for the punishment of smuggling as the " clandestine introduction of goods," thereby adopted the English definition. United States v. Dry Goods, 17 How. 85. But further, the construction of the minority fails to stand the test of the most familiar canon governing statutory interpre- tation, that all the provisions of the law must be read as a whole, 'i'he view of the minority is then seen to involve a fatal dilemma : although they contend that the offence was complete the moment the concealed goods arrived within the waters of the port ; yet they are obliged to concede that, under the statute, if the duties were subsequently paid before passing the customs, no offence would have been committed. This contention and this admission are wholly irreconcilable. If a subsequent act becomes necessary to determine whether an offence has been committed, it cannot be said in reason that the offence is at first complete. For it is funda- mental in criminal law that all the elements of a crime must co-exist, and that when a crime is thus complete nothing subsequent can purge it. '^I'he decision reached by the majority in the principal case is, then, most sound statutory construction. Nor is there any practical argumen*- the other way. The acts done in the principal case were punishable under the revenue laws had the indictment been rightly drawn. But as the law stood they did not constitute smuggling.