cation to the case, whether by plea of former conviction or acquittal, because the common law not only made conviction of the crime conclusive evidence for forfeiture, but originally required conviction as the only valid ground of forfeiture.

It is to be noted that there was another forfeiture case against Coffey (116 U. S., 427) besides the one cited (id., 437), in which it was adjudged that a count in an information based upon a section of the statutes included in a previous indictment or criminal information was good, and that the issue of former conviction thereunder raised by plea must be held to have been found against the claimant by the general verdict. Upon the question as to the sufficiency of the information in the other case this ruling was upheld (id., 442), from which it is to be inferred that a general verdict against the claimant in the case before us would find the issue of former acquittal against him, and if based upon one good count would be sustained. Now, in the Coffey case, cited on Pearson's behalf, it was distinctly held that the fraudulent acts, attempts, and intents alleged in the prior criminal information embraced all the acts, attempts, and intents averred in the forfeiture suit, and it is upon this premise that the judgment proceeds. The very same acts or facts had been put in issue and determined once for all against the United States by the judgment of acquittal in the criminal proceedings, which ascertained that the facts which were the basis of both proceedings did not exist. But the court, in stating that this rule as to the effect of a former acquittal does not apply in an action against the defendant by an individual, because the parties are not the same, adds the additional reason that a certain intent must often be proved to support the indictment which need not be proved to support the civil action. It is along these lines, in my opinion, that the proper distinction between the Coffey case and the present one lies, and I observe that in Coffey's case the court is careful not to answer the questions whether a conviction on an indictment might not be conclusive evidence for condemnation in a subsequent suit in rem, and whether judgment of forfeiture in such a suit might not be conclusive evidence for conviction under a subsequent in

dictment. Further, the leading case of Rex v. The Duchess of Kingston, cited by the court, makes a prior judgment as a plea, a bar, or, as evidence, conclusive between the same parties upon the same matter when it is directly upon the point.

Zucker v. United States, supra, turned upon an entirely different point from that involved here, although the court therein referred to the decision in the Coffey case with approval; but the language (161 U. S., 482) clearly restricts the rule to a case where the offense is identically the same and both the criminal consequence and the civil penalty are provided by the same section of the same act.

The general question and the point adjudged in Coffey v. United States are discussed in numerous decisions in the lower courts, including United States v. Butler (38 Fed. Rep., 498); United States v. Three Copper Stills (47 Id., 495); United States v. Olsen (57 Id., 579); and Stone v. United States (64 Id., 667).

In the case of United States v. Three Copper Stills, Judge Barr carefully distinguishes the case of Coffey v. United States, upon views similar to those herein suggested, and holds that a conviction for illicit distilling is not a bar to proceedings in rem under another section of the statutes framed to declare and perfect the forfeiture; that a conviction for removing or selling spirits contrary to law is not a bar to a conviction for illicit distilling, and that the Fifth Amendment to the Constitution, declaring that no one shall be twice put in jeopardy for the same offense, does not apply to proceedings in rem.

United States v. Olsen reviews the previous cases, also distinguishes Coffey v. United States, and approving the conclusions of Judge Barr, holds that the forfeiture of a vessel under the act of July 5, 1884, for an act of the master in landing Chinese laborers in the United States is not a bar to an indictment against the owner under another section of the same act.

Stone v. United States also distinguishes the Coffey case, and decides that an acquittal of a person indicted for unlawfully and feloniously cutting and removing timber from public lands is not a bar to an action by the United States

to recover the value of such timber; and quotes the following language from Freeman on Judgments:

"The best and most invariable test as to whether a former judgment is a bar is to inquire whether the same evidence will sustain both the present and the former action. If this identity of evidence is found, it will make no difference that the form of the two actions is not the same. On the other hand, if different proofs are required to sustain two actions, a judgment in one of them is no bar to the other."

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See also United States v. Jaedicke et al. (73 Fed. Rep.. 100).

Now, it will be observed that in some of the foregoing cases there was a previous conviction, in others a previous acquittal, and in one the criminal proceedings were subsequent to the forfeiture of the res. But it is evidently a matter of clear inference from the Palmyra case and the Coffey case that conviction might not only not be a bar, but be conclusive evidence in favor of condemnation in a subsequent forfeiture suit. In other words, the nature of the two actions is so far separate and distinct that the ordinary criminal pleas of autrefois convict or autrefois acquit are similarly inapplicable.

Applying, then, the reasoning from the foregoing authorities to the case in hand, we have an acquittal on the charges of smuggling under section 2865 and illegal importation under section 3082, and it is clear that this would be a bar to proceedings in rem founded upon the latter section; but such proceedings founded upon sections 2802 and 3061, read in the light of section 3062, while the same facts and transactions are involved, present a separate and distinct offense; in fact, strictly speaking, they present a civil liability rather than an offense, especially because these sections do not require a certain criminal intent, such as must be proved to support an indictment under sections 2865 and 3082, and therefore evidence sufficient for the condemnation would not sustain the indictment. Hence, as different proofs are required to sustain the two actions, the judgment in one is no bar to the other. Moreover, the acquittal was of the crime of smuggling and of the crime of importing

contrary to law, which, in the absence of authoritative distinction, points out, or at least includes in this case, the charge of smuggling; and in the case of Keck v. United States (172 U. S., 434, 448, et seq.), the court, finding that smuggling as properly defined contemplates the actual landing of goods in violation of law, holds that acts which might lead up to smuggling or which might follow the unlawful landing are prohibited as distinct and separate offenses "entailing in some cases forfeiture of goods and in others. pecuniary penalties and criminal punishments." Consequently, as generally the connected acts or facts antecedent, accompanying, or subsequent, which amount to smuggling. if the goods are landed and criminal intent is proved, are nevertheless viewed as distinct transactions, some being punished as separate crimes or misdemeanors by imprisonment or fine, and some involving the penalty of forfeiture in civil proceedings, and as the proof to support a suit in rem in the present case need not embrace intent (which must, however, be proved to support an indictment under secs. 2865, 3082), I am of the opinion under the authorities cited that the acquittal on the criminal charge is not a bar to proceedings in rem under sections 2802 and 3061. In short, the verdict determined that criminality under sections 2865 and 3082 did not exist in Pearson's acts; but did not ascertain, respecting sections 2802 and 3061 as a basis for forfeiture, that the acts or facts did not exist.

The other question presented under the fur-seal act of 1897 is entirely separate. If that act applies at all to this case, the remedy provided is concurrent with or cumulative to that provided by the customs revenue laws. Importation of fur-seal skins under the act of 1897 is not in violation of the customs revenue laws, and neither the remedy provided by that act nor the remedy under the customs statutes is exclusive. That is, I do not perceive any reason for thinking that the Government is put to its election as between the respective laws, unless the positive, mandatory, and radical provisions of the act of 1897 require the election of the remedy under section 9 of that act wherever it is applicable. But is that act applicable? It may be that the conclusion which I have reached on the other branch of the

case will relieve me in your view from pursuing the inquiry. Nevertheless the reason just suggested renders apt a brief consideration of the subject.

Section 9 of the act of December 29, 1897, provides:

"That the importation into the United States by any person whatsoever of fur-seal skins taken in the waters mentioned in this act, whether raw, dressed, dyed, or manufactured, is hereby prohibited, and all such articles imported after this act shall take effect shall not be permitted to be exported, but shall be seized and destroyed by the proper officers of the United States."

Article 1 of the regulations based upon this act provides: "One. No fur-seal skins, whether raw, dressed, dyed, or otherwise manufactured, shall be admitted to entry in the United States, unless there shall be attached to the invoice a certificate, signed by the United States consul at the place of exportation, that said skins were not taken from seals killed within the waters mentioned in said act, specifying in detail the locality of such taking, whether on land or at sea, and also the person from whom said skins were purchased in their raw and dressed state, the date of such purchase, and the lot number. Consuls shall require satisfactory evidence of the truth of such facts by oath or otherwise before giving any such certificate.

"No fur-seal skins, raw, dressed, dyed, or otherwise manufactured shall be admitted to entry as part of a passenger's personal effects unless accompanied by an invoice certified by the consul as herein provided.

"All fur-seal skins, whether raw, dressed, dyed, or otherwise manufactured, the invoices of which are not accompanied by the certificate above prescribed, shall be seized by the collector of customs and destroyed as provided for in section 9 of the act of December 29, 1897."

The remaining articles require a certain method of proof of the origin of the skins, an investigation of the proofs presented to a consul at the foreign port, and an examination at the public stores of skins, whether imported as merchandise or as part of the passenger's effects, to prevent evasion of the law. There is also a provision for the reentry of seal-skin garments and presentation of a certain certificate