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ed this question for the consideration of all the judges U. STATES
in the highest tribunal, that in forming my opinion I
might have had the light reflected from their minds, and 1960 BAGS
the benefit of their acknowledged learning. The parties.
have however seen fit to pursue 'another course, and I COFFEE.
shall meet the question as my duty requires without ask-
ing for shelter under any authority; though not without
extreme diffidence.

Before I proceed to the principle question, it will be necessary to clear the way by adverting to some considerations which have grown out of the argument on each side. It should be remembered that this is not a case where the vendor was out of possession, and of course where the law might infer a want of due diligence in the purchaser. To such a case the maxim caveat emptor would certainly apply. Nor is the present a case where the sale was made at the first moment when the property came within the jurisdiction or grasp of the United States-for I should have little doubt that such a hurried sale could hardly be the foundation of a solid title. It is not a case of voluntary gift or collusive transfer which would probably share the fate of all bounties in fraud or exclusion of public rights. Jones v. Ashurst. Skin. 357.

It is admitted that the sale is bona fide, for a valuable consideration, and without any express or implied notice. Further, the statute, on which the information is founded, has declared that the property shall be wholly forfeited, if the offence be committed; but it has not declared at what time it shall take effect, to what time it shall relate, nor whether it shall be incapable of being purged by subsequent events. The forfeitures under the statute are to be distributed in the same manner as forfeitures under the collection act of 2d March, 1799, § 91, by which informers and officers of the customs, as well as the government, may acquire vested interests; and it follows therefore that these interests, as to informers and officers of the customs, cannot vest until their rights are ascertained by seizure or condemnation.

It has been argued on the part of the United States, that the forfeiture is, by the statute, made absolute on the commission of the offence, and as it was competent for the legislature to enact such a law, the title cannot be dives

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U. STATES ted by any subsequent event. That the cases of forfeiv. ture at the common law are not applicable because they 1960 BAGS depend upon the qualification annexed to them by the common law, which makes them conditional only, and COFFEE. not absolute forfeitures, whereas the present statute has annexed no qualification: And in support of this distinction the opinion of the chief justice in the case of the United States v. Grundy & al. 3 Cranch, 337, has been quoted where he says, (p. 350,) "It has been proved that in all forfeitures accruing at common law, nothing "vests in the government until some legal step shall be "taken for the assertion of its right; after which. for "many purposes, the doctrine of relation carries back "the title to the commission of the offence, but the dis❝tinction, taken by the counsel for the United States, "between forfeitures at common law and those accruing "under a statute, is certainly a sound one. Where a

"forfeiture is given by a statute the rules of the common law may be dispensed with, and the thing forfeited "may either vest immediately or on the performance of "some particular act, as shall be the will of the legislature. This must depend upon the construction of the "statute."

I entirely subscribe to the doctrine here stated by the chief justice. There can be no doubt that the legislature may provide that its forfeitures shall take effect differently from the course prescribed by the common law; but the question will always be: Have the legislature so done? If they have not, shall the rules of the common law govern in the absence of any positive declaration? It should be remembered also, that the chief justice is here speaking in a case where the main question before him rested in a considerable degree upon the point whether the legislature had not given an election of remedy, and suspended the vesting of any interest until the determination of that election. But I apprehend that the words of the chief justice by no means imply that when a forfeiture in rem is attached to a statute offence, the rules of the common law are of course excluded. They do not in my judgment import more than the opinion which I have already expressed. Now in the case at bar, I cannot perceive in the language of the legislature any systematic exclusion of the common law as to forfeitures. They have declared no more than that the

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commission of an act shall induce a forfeiture: and so U. STATES has the common law; but the question as to the nature v. and extent of the operation of this forfeiture is no where, 1960 BAGS that I can perceive touched. This view of the subject leads me to deny another position assumed by the counsel for the United States, viz. that the doctrine of relation has nothing to do with the present controversy In the progress of this examination, I think, if not already shewn, it will sufficiently appear that the doctrine of relation has a very powerful influence in every essential view of the subject.

I will now consider the main question, which perhaps may be divided into two branches.

1. What is the interest or right which attaches to the government in forfeitures of property before any act done to vindicate its claims ?

2. What is the operation of such act done to vindicate its claims; as to the offenders, and as to strangers?

1. As to the first point. In all cases at common law where lands are forfeited for the personal offence of the party, I take the rule to be universally true, that until the offence is ascertained, by conviction and attainder, no title vests in the sovereign.

Before that time the party is entitled to the possession and profits of his lands, and the government have no vested right in them, either to enter or dispose of the estate, 2 Inst. 48. Staund. P. C. 192. Nay, even after attainder until office found the sovereign is considered as having but a possession in law, and an office is necessary to complete a title. Staund. P. C. 198. The offender, therefore, has until conviction full power and authority to alien his lands and to convey to the purchaser a complete and legal, though defeasable scizin ; and unless such conviction follow the offence the alienation is good against all the world. For, as Bracton says, (Lib. 2, ch. 13, p. 30.) "ea vero, quæ post feloniam facta sunt, 66 semper valent and tenent nisi fuerit condemnatio sub"secuta, et si fuerit subsecuta, non valent.

If this be true, and there scems no reason to doubt it, VOL. VIII.

52

U. STATES it follows that the estate of the offender is rightful, that v. he has both jus ad rem, and jus in re: and consequently 1960 BAGS that the crown hath but a mere possibility which in no wise restrains the exercise of ownership over the properCOFFEE. ty. See 4 Bl. Com. 382.

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The same doctrine is also, in general, true as to like forfeitures of goods and chattels. Bract: Lib. 2, ch. 13. -Co. Lit. 391, a.-Staund. P. C. 193.-Id. 52.—2 Inst. 48.-2 Hawk. P. C. ch. 49.-Nor do the cases of deodand, and suicide, form any exceptions, for the authorities all concur that the forfeiture does not vest a property until the fact is found of record. Foxley's case, 5, Co. 109.Hales v. Petit, Plowd. 260, 262. It has been supposed that goods waived vested ipso facto in the crown upon waiver; but on a careful examination of the authorities it will be found that the owner retains his full property until an absolute seizure by the crown. Staund. prerog. lib. 3, ch. 25, p. 186.—Fitz. Ab. Estray. 2. 21 Edw. 4, For all purposes of alienation and sale therefore the property in goods and chattels remains in the owner notwithstanding the commission of an offence subjecting it to forfeiture; and consequently he may convey a good title against every person but the crown, and against the crown also unless in cases where the anterior relation applies. Jones v. Ashurst, Skinn. 357. I think therefore it may be assumed as a settled principle, that in for feitures for personal offences, before seizure or prosecution, the sovereign has no vested title.

16.

Can the case be distinguished where the forfeiture is made to attach to the instrument itself by means whereof the offence is committed?

It seems to me that the most favourable cases for the United States, viz. deodands and waifs, conclusively shew that no such distinction anciently prevailed, for whatever may be the effect of relation, it is certain that no property vested in the crown until seizure or inquisition. I infer therefore that no absolute property vested in the United States in the case at bar, until actual seizure was made, and the decision in the king's bench in Lockyer v. Offley, 1 T. R. 252, seems to me fully to sup port the inference. It has indeed been supposed by the Counsel for the United States, that Roberts v. Witherell, 1

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Salk. 223.-12 Mod. 92, and Wilkins v. Despard, 5 T. R. U. STATES 112, support a contrary doctrine. But on examination they appear to me to confirm it. In the first, the action, 1960 BAGS was detinue for property forfeited under the navigation act of Charles 2d, and the Court held that the action COFFEE, will lay, because the bringing action amounted to a seizure. In the latter case there had been actual seizure made for the forfeiture, and the sole question was if condemnation were not necessary to divest the property of the owner.

If I am right in the view which I have already taken of the subject, there can be little doubt that the title of the United States so far as affects third persons rests mainly on the doctrine of relation; and that the counsel for the United States must call in the aid of the common law to enforce the present claim. For if no title vests until seizure, there must at the time of seizure be a title in the offending party capable of being divested and of vesting in the United States. But at the time of the present seizure that title had been transferred to the present Claimant and nothing was left in the vendor capa ble of transfer.

2. This leads me to the examination of the second point, viz. What is the operation of the acts done by the sovereign to vindicate his title by forfeiture ?

At common law, in case of attainder for treason or felony the forfeiture of lands relates back to the time of the offence committed so as to avoid all intermediate changes and conveyances. 4 Bl. Com. 481, 487.-Co. Lit. 390, b. Staund. P. C. 192, but in general, in like cases the forfeiture of goods and chattels relates back only to the time of conviction so that all previous changes and alienations, and even bona fide gifts, are protected, 4 Bl. Com. 387.-Co. Lit. 391. Staund. P. C. 192. Perk. § 29.Skinn. 357. There are some cases in which the relation is carried back to the time of the inquisition made; but, unless that of suicide form an exception, there is no case where the relation is pressed beyond the time of the prosecution. According to the decision in Plowden 260, a felo de se forfeits all his goods and chattels, from the time of committing the act which occasions the death: and the doctrine seems to be supported by Rex v. Ward, 1 Lev. 8. The general ground assigned for it, is, that