Aside from this, we have a right to assume that the legislature intended to use the term "delivery" in its legal, technical sense. Chancellor Kent, in his Commentaries, vol. 2, p. 439, says, in treating of the subject of delivery: "If the thing given be a chose in action, the law requires an assignment, or some equivalent instrument, and the transfer must be actually executed;" and in Bouvier's Law Dictionary it is said: "To constitute a legal delivery it is necessary that all present and future dominion over the thing delivered pass from the person making the delivery." In my opinion it is entirely consistent with the provisions of the act under consideration to apply this meaning to the term "delivery," and to hold that, in order to constitute a stampable transaction, the delivery of certificates of stock must be accompanied by some assignment, transfer, or agreement in writing such as is described in the statute.

Section 9 of the act of December 29, 1897 (30 Stat., 227), and the Treasury regulations made in pursuance thereof, which prohibit the importation into the United States of fur-seal skins taken in the waters mentioned in that act, impose upon the importer the burden of showing the right to entry of any fur-seal skin.

That burden rests and remains upon the claimant, and neither an acquittal on the charge of smuggling, nor any other proceeding under the customs revenue laws, has the effect of shifting the burden of proof in the entirely distinct proceeding to forfeit seal skins brought into the United States in violation of that act.

An acquittal upon the charge of smuggling, under section 2865, Revised Statutes, and of illegal importation under section 3082, is not a bar to a proceeding in rem to forfeit the goods, the subject of the charge of smuggling and illegal importation, under sections 2802 and 3061, Revised Statutes.

To support an indictment under sections 2865 and 3082, Revised Statutes, there must be sufficient evidence of a criminal in'ent, while a proceeding in rem to forfeit, under sections 2802 and 3061, Revised Statutes, presents a civil liability rather than an offense, and does not require proof of such intent.

DEPARTMENT OF JUSTICE,

March 28, 1900.

SIR: Your letters of February 21 and March 14, with their inclosures, relative to the application of Charles E. Pearson for the release of a woman's seal-skin coat seized from him at the port of New York for violation of section 2802, Revised Statutes, and section 9 of the act approved December 29,1897, were duly received, and by them I am informed that Pearson, a passenger upon a steamer arriving at New York from Liverpool, failed to declare the garment, which was found as he was leaving the dock, sewed to or fastened within the overcoat which he wore or carried. He was arrested and indicted under sections 2865 and 3082, Revised Statutes, but acquitted upon trial on the ground, apparently, that he was on his way to his home in Canada with the garment and had no intention of introducing the article into this country. He now requests the release of his property for the purpose of exportation in bond to Canada, and claims that his acquittal is a bar to an action for forfeiture, citing Coffey v. United States (116 U. S., 436), and United States v. Zucker (161 U. S., 475).

You ask for my opinion on the question whether in such a case an acquittal on a criminal charge is a bar to proceedings in rem.

Connected with this inquiry it appears that there is another question, viz, whether under section 9 of the act of December 29, 1897, and the regulations made in pursuance thereof, forbidding the importation into the United States by any person whatever of any fur-seal skins taken in the waters mentioned in the act, and providing that all such articles imported after the act shall take effect shall be seized and destroyed by the authority of the United States, this garment should not be so dealt with unless a consular certificate shall be produced showing that the skins of which it is made were not taken from seals killed within the aforesaid waters. With reference to this question it appears to have been

suggested that the importation is not in violation of the customs-revenue laws, that there is no enactment for the forfeiture of this garment to the United States, and that if proceedings for forfeiture and destruction are undertaken, the burden of proof will rest upon the Government to show that the skins from which it was made came from seals killed in the prohibited waters since the passage of the act of 1897; while you suggest that the importation is presumably in violation of the fur-seal act of 1897 and the regulations thereunder, so that the importer must take the burden of proof and produce satisfactory evidence that the article is not subject to the prohibition and penalty of said act; and, further, that the importation is also in violation of the customs-revenue laws (Rev. Stat., sec. 2802), and the acquittal of the importer in person of the criminal charge under sections 2865 and 3082 would not be a bar to civil proceedings to forfeit the garment under section 2802.

In reply, I have the honor to say, before addressing myself to the legal questions, that, as you will observe, I have stated the questions, particularly the last one, not in the exact language of your communication, but in accordance with what I understand to be the purport and intention of your inquiries.

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It appears that Pearson was searched and the garment seized and secured for trial under the authority of section 3061, and that he was indicted under sections 2865 and 3082, which impose punishment "if any person * smuggle or clandestinely introduce 2865), and "if any person shall contrary to law

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dutiable goods (sec. import

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Section 3082, containing the

latter provision, concludes as follows: "Whenever, on trial for a violation of this section, the defendant is shown to have or to have had possession of such goods, such possession shall be deemed evidence sufficient to authorize conviction, unless the defendant shall explain the possession to the satisfaction of the jury."

Section 3082 also provides that the merchandise shall be forfeited, but section 2865 contains no provision for proceedings in rem.

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Under these circumstances it appears to me that the following proposition from the decision in the case of Coffey v. United States, supra, is applicable so far as forfeiture under

section 3082 is concerned:

"Yet, where an issue raised as to the existence of the act or fact denounced has been tried in a criminal proceeding, instituted by the United States, and a judgment of acquittal has been rendered in favor of a particular person, that judg ment is conclusive in favor of such person, on the subsequent trial of a suit in rem by the United States, where, as against him, the existence of the same act or fact is the matter in issue, as a cause for the forfeiture of the property prosecuted in such suit in rem”

The decision in this case was cited and approved, with a limited application, however, in the cases of Boyd v. United States (116 U. S., 616, 634), and United States v. Zucker, supra, and all three opinions cite other authorities for the same proposition. As a result, I am of the opinion that proceedings in rem, founded on the same state of facts involved in the criminal action and upon the same section of the Revised Statutes as the indictment, must fail.

But a new element enters into the subject when section 2802 is brought forward. That section was not directly involved in the criminal proceedings. The search and seizure were made under section 3061, which authorizes the search of vehicles, persons, etc., on which or whom it is suspected there is merchandise subject to duty or such as has been imported or introduced in any manner contrary to law, and the seizure of the merchandise for trial is directed. This section does not in itself expressly warrant forfeiture of such merchandise, but that is perhaps its sufficient intent and force, especially in connection with section 3062, which specifically makes the vehicles, the coverings of such merchandise, and other appurtenances subject to forfeiture. The point appears to be pertinent, because section 2802, which you particularly suggest, refers only to articles concealed in baggage and not mentioned in the passenger's entry, which articles shall be forfeited. I am not required under your request to determine whether the article in the present case is covered by the phrase "found in the bag

gage" of the person arriving within the United States. Generally, it can not be doubted that, apart from the question of acquittal on the criminal charge, there is sufficient warrant in the statutes just reviewed to institute proceedings in rem. Whether the proceedings would succeed and a verdict be obtained need not at present be considered.

The question may now be stated thus: If the acts or facts fall short of smuggling or importation contrary to law, as shown by a verdict of acquittal on such a charge, and if it is admitted that the verdict bars the forfeiture provided by one of the sections upon which the criminal charge was founded, is the Government therefore deprived of all remedy through civil proceedings in rem, even upon other aspects of the facts and under other sections of the statutes? In other words, although Pearson is found not to have smuggled this garment, is he therefore, ipso facto, relieved from all the relative prohibitions and penalties of the customs-revenue laws?

An early leading case on the subject is The Palmyra (12 Wheat., 1). The exact question there was whether in a libel in rem for piratical aggressions it is necessary to allege or prove the acquittal or conviction of the person for the criminal offense; and it was held that this doctrine of the common law was never applied to seizures and forfeitures created by statute in rem cognizable on the revenue side of the exchequer. But the following language of the decision embraces in principle such a case as the present:

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The thing is here primarily considered as the offender, or rather the offense is attached primarily to the thing. Many cases exist, where the forfeiture for acts done attaches solely in rem, and there is no accompanying penalty in personam. Many cases exist, where there is both a forfeiture in rem and a personal penalty. But in neither class of cases has it ever been decided that the prosecutions were dependent upon each other. But the practice has been, and so this court understand the law to be, that the proceeding in rem stands independent of, and wholly unaffected by any criminal proceeding in personam."

The references in the decision to the common law rule suggest that the doctrine of twice in jeopardy has no appli