When an accused has been convicted of maintaining a public nuisance, it has been the practice from early times not only to impose a fine but also to order an abatement[535] of the nuisance when it has been alleged[536] and shown to be still continuing. In Rex and Regina v. Wilcox[537] the owner of a glass house was convicted of maintaining a public nuisance. The court imposed a fine and ordered an abatement of the nuisance.
Subsequently, the convicted man was pardoned. It was held that the pardon discharges only the fine and not the order of abatement, because the latter was not punishment for the crime but a removal of that which is a grievance to other people. Since the object in abating the nuisance is not to punish the offender[538] but to enforce the public right, the action, in so far as it is prosecuted to secure an abatement of the nuisance, is civil and not criminal. Thus, the practice sanctions the union of a civil and a criminal action. The inconveniences of this practice must eventually cause it to be abandoned. Pleading in civil and criminal actions is different. The degree of conviction necessary before the jury can decide for the party having the burden of proof is different. Usually the principal object of the proceedings is to secure the abatement of the nuisance. This may fail in a criminal proceedings although the existence of a nuisance is proved, because the accused is not shown to have been responsible for it. In The King v. Watts[539] the owner of a ship which had sunk in the Thames River was indicted. It appeared that the sinking was caused by the negligence of those handling another ship which collided with the accused's ship, and that it was in no way the fault of the accused or those handling his ship. The court held that the indictment could not be sustained.
Thus, the principal object of the proceedings which was to secure the abatement of an obstruction to navigation on the Thames could not be secured. The Queen v.
Chichester[540] is a similar case. The accused did not appear for sentence, and the court held that in his absence it could not order an abatement of the nuisance. In People v. High Ground Dairy Co.[541] the court took the view that the whole action was civil because the purpose of the statute was not to punish but to prevent a recurrence of the nuisance. It concluded that since the action was civil, a criminal intent was not an essential element.
This goes too far.
A separate civil action to secure abatement might be in personam or in rem. The following cases illustrate the difficulties of an action in personam. In Cofer alias
Rosencrans v. Territory[542] the lessee of premises who operated a house of ill fame was convicted of maintaining a nuisance. The sheriff was ordered to abate it. The lessee abandoned the premises, but the owner continued the same use of the premises. It was held that the order did not authorize the sheriff to abate the nuisance as against the owner, and that it was necessary to bring a new action against her. In State v. Paggett [543] an employee in charge of a powder magazine in a settled area was convicted of maintaining a nuisance. He was ordered to abate it. It was held error to make this order, since he was not the owner of the property. It is apparent that a proceeding in rem may be the desirable form of action to secure the abatement of a nuisance. As previously pointed out, such a proceeding in rem would not be a criminal proceeding.
1. ADMIRALTY JURISDICTION
In England the admiralty courts were deprived of the criminal jurisdiction which they formerly exercised by the Statute of 28 Henry VIII, chapter 15.[544] The purpose of the law was to afford the accused a trial in accordance with common-law forms, that is, a jury trial. By section nine of the Act of September 24, 1789,[545] Congress conferred upon the federal district courts "exclusive original jurisdiction of all civil causes of admiralty and maritime jurisdiction including all seizures under the laws of impost, navigation or trade of the United States where the seizures are made on waters which are navigable from the sea by vessels of ten or more tons burthen, within their respective districts, as well as upon the high seas; ..." The drafter of this statute evidently considered that
forfeiture actions were civil and not criminal, and that when the seizures were made upon navigable waters, admiralty courts had jurisdiction over the subject matter. In
proceedings to secure forfeitures under these laws the government's initial pleading has sometimes been called a libel,[546] sometimes an information,[547] and sometimes a "libel of information." [548] Since forfeiture proceedings have been held to be criminal[549] and admiralty courts long ago lost jurisdiction over criminal actions, it would seem that forfeiture proceedings are not properly admiralty proceedings and that regardless of what the government's initial pleading is called, admiralty law with its peculiar doctrines has no application in forfeiture proceedings. The original statute conferred jurisdiction over certain forfeiture proceedings upon the federal courts, but it is not necessary to accept the drafter's view that their trial is an exercise of admiralty jurisdiction. The statute has been changed, and the present act does not involve such an assumption.[550]
2. INNOCENT OWNERS
Some statutes provide that property shall be forfeited when used in a way or for a purpose prohibited, without limiting this to a use by or on the authority of the owner or restricting the forfeiture to the wrongdoer's interest in the property. The language taken literally requires the forfeiture of the interests of innocent persons. Probably this result was not intended because not foreseen. The drafters of these statutes seem not to have thought of the interests of innocent mortgagees and lienholders or of innocent owners of property lost or stolen or used without their knowledge, consent, or authority. If so, then the statute might be construed not to forfeit the interests of innocent persons because the legislature did not intend it to. If the literal meaning was intended, the statute would seem to be unconstitutional, for to punish innocent persons is so unfair and unjust that it would seem to be a violation of due process of law.[551] No end which the state wishes to accomplish would seem to require such a price.
The authorities upon the question are conflicting. United States v. Cargo of the Ship Favourite [552] was the first case decided in this country. Interpreting an act of Congress, the Supreme Court ruled that Congress did not intend that goods salvaged from a shipwreck and brought ashore by strangers to the owner at a place where there were no customs officers should be forfeited. In United States v. The Schooner Little Charles[553]
the question was whether statements made by the master of the ship were admissible in evidence as admissions of the owner. Marshall said that the proceeding was against the
vessel, not the owner, but he also said, "It is true, that inanimate matter cannot commit an offense." Several federal cases[554] subsequently decided relied upon the following
language from Chief Justice Marshall's opinion in United States v. Cargo of the Ship Favourite, "the law is not understood to forfeit the property of owners or consignees on account of the misconduct of mere strangers, over whom such owners or consignees could have no control." Statutes of South Carolina have been interpreted as not forfeiting the interests of innocent persons.[555] The leading case for this view is United States v.
Two Barrels of Whiskey,[556] decided by the Circuit Court of Appeals for the Fourth Circuit in 1899. The interest of an innocent mortgagee in a horse, mule, and wagon used in transporting liquor upon which the tax had not been paid was held not to be forfeited, on the ground that the statute was criminal, its object being to punish wrongdoers, and the mortgagee had committed no crime.
The weight of authority sustains the forfeiture of the interests of innocent persons.[557]
This line of cases began with Mitchell v. Torup,[558] decided in the English Court of Exchequer in 1766, and Story's dictum in The Palmyra,[559] decided by the Supreme Court of the United States in 1827. Three reasons are given for this view. They are: (1) the literal language of the statute requires it; (2) the proceedings being in rem are civil, not criminal; (3) the property is the offender. The third reason comes from two sources:
(a) the fiction that the ship is the offender, which is a part of admiralty law applicable in civil cases, and (b) the early English law of deodand by which property which by misadventure or accident was directly instrumental in the death of a human being was forfeited to the King's almoner for pious uses.[560] The latter is obviously founded upon a superstition. In Mitchell v. Torup the court decreed the forfeiture of a ship because sailors brought two hundred and twenty-one pounds of tea to England in her without the
knowledge of her owner, master, or mate. It was argued that the property was the offender, but the court disapproved of this argument and relied upon the other two. In The Palmyra it was decided that it was unnecessary to obtain a conviction of the offender before proceeding against the property. The decision is right because the guilt of the accused can be determined in the trial in the proceedings in rem, but Story put it upon the ground that the thing was the offender. This was due to his belief that he was exercising admiralty jurisdiction. In United States v. Brig Malak Adhel[561] the Supreme Court upheld the forfeiture of a ship used by pirates, although the owners were innocent. Story, who wrote opinion, said that in admiralty the ship was regarded as the offender. Dobbins Distillery v. United States[562] was an action to secure the forfeiture of a distillery for the lessee's acts in violating the revenue laws. Although the Supreme Court was clearly not exercising admiralty jurisdiction, it upheld the forfeiture of the innocent lessor's interest on the ground that the property was the offender, citing The Palmyra and United States v.
Brig Malak Adhel. In United States v. Stowell[563] the Supreme Court reached the same result on the ground that the statute required it.
Goldsmith-Grant Co. v. United States,[564] decided by the Supreme Court in 1921, is the leading case. The United States brought the action to secure the forfeiture of an
automobile used in transporting liquor in violation of the revenue laws. The claimant was a vendor who had retained title to secure an unpaid portion of the purchase price, and who had no knowledge of the use which the purchaser intended or to which he afterwards
put it. The Supreme Court sustained the forfeiture of the innocent vendor's interest. It was contended that Congress could not have intended what the words literally meant because the result would be so contrary to that justice which should be the foundation of the due process of law required by the Constitution. Justice McKenna answered this argument by saying that Congress could compel the owners of property to exercise care to prevent the prohibited use, and for this purpose could ascribe personality to the property as had been done in the early English law of deodand. The difficulty with this answer is that it is difficult to see how mortgagees and lienholders can by any diligence on their part prevent the person in possession from putting the property to the prohibited use. Justice McKenna added that whether the reason was artificial or real, the rule was now too firmly fixed to be changed. Are we to be bound forever to an unjust rule by the chains of stare decisis?
Counsel put several hypothetical cases to show the absurdity of a literal interpretation, asking whether a Pullman sleeper or an ocean liner would be forfeited by the act of a passenger in transporting a bottle of illicit liquor, and whether property stolen or taken from an owner without his consent would be forfeited. McKenna ignored the inference that Congress could not have intended the literal meaning, saying that the court would consider these cases when they arose.
The Supreme Court continues to sustain the forfeiture of the interests of innocent persons.
Goldsmith-Grant Co. v. United States was followed in Van Oster v. Kansas[565] and Various Items of Personal Property v. United States.[566] The latter was a proceedings to secure the forfeiture of a distillery for a violation of the revenue laws by the corporate owner. It had been tried for the same acts in a separate action and convicted. The Supreme Court held that the forfeiture proceedings did not put the owner in jeopardy a second time. Justice Sutherland said that the property was the offender. He admitted that this was a fiction, but said that the forfeiture was no part of the punishment for the
criminal offense. The decision is contra to the Supreme Court's own decision in Coffey v.
United States,[567] where the opposite result was reached. The reasoning is the opposite of that employed in Boyd v. United States,[568] where the Supreme Court ruled that a
forfeiture proceeding was criminal because the object of the statute was to punish the owner.
A majority of the lower federal courts have followed Goldsmith-Grant Co. v. United States.[569] Yet it is significant that in many cases they have upon one pretext or another reached the opposite result.[570]