Cook v. United States

Syllabus.

etc. The Exhibits were correctly treated as parts of the amended answer. But a requirement that the parties recast the pleadings would have been proper and helpf il.

The petition here for certiorari does not mention the conflicting view in respect of the Exhibits or deal with them as parts of the record. It failed adequately to advise us concerning the real situation. But to avoid possible misunderstanding, it has seemed best to retain jurisdiction rather than to dismiss the writ because improvidently granted.

The judgment of the Supreme Court affirmed by the Court of Appeals authorized a writ of mandamus direct- ing that the Secretary of the Interior should treat the disputed items in the respondent's claim as permissible as matter of law and to proceed with their final adjust- ment upon consideration of all the facts. We approve this action, and affirm the judgment.

Affirmed.

No. 82. Argued December 7, 1932.-Decided January 23, 1933.

1. The Treaty of May 22, 1924, with Great Britain, as both its

language and its history show, was intended to deal completely with the search and seizure beyond our territorial limits of British vessels suspected of smuggling intoxicating liquors into this country.

2. Article II of the treaty declares that His Britannic Majesty " will

raise no objection " to the boarding of private vessels under the British flag outside of the three mile limit of territorial waters in order that inquiries may be made of those on board and an exami- nation be made of the ship's papers, for the purpose of ascertaining whether the vessel or those on board are endeavoring to import, or have imported, alcoholic beverages into the United States, in violation of the laws there in force. When this shows reasonable

COOK v. UNITED STATES. 102

Syllabus.

ground for suspicion, a search is permitted; and if there is reason- able cause for belief that the vessel, has committed, or is com- mitting or attempting to commit, an offense against the laws of the United States prohibiting importation of alcoholic beverages, she may be seized and taken into a port for adjudication. But it ex- pressly provides that the rights conferred by this Article shall not be exercised at a greater distance from the coast of the United States than can be traversed in one hour by the vessel sus- pected, etc.

Held that the treaty not only permits boarding, etc., beyond the three mile limit, if the vessel is within one-hour's sailing distance, but also forbids it beyond the three mile limit as to vessels not within such sailing distance. Pp. 111, 118.

3. The treaty is self-executing, in that no legislation was necessary

to authorize executive action in pursuance of its provisions; and it had the effect, (and was so interpreted in practice,) of super- seding, so far as inconsistent with it, the authority conferred by § 581 of the Tariff Act of 1922 upon officers of the Coast Guard to board, search and seize within four leagues of the coast. P. 118.

4. The treaty was not abrogated by reiinacting § 581 in the Tariff

Act of 1930 in the identical terms of the Act of 1922. P. 119.

5. A treaty will not be deemed to have been abrogated or modified

by a later statute unless such purpose on the part of Congress has been clearly expressed; and here the contrary appears, in that the committee reports and the debates upon the Act of 1930, like the reenacted section itself, make no reference to the treaty.

6. Any doubt as to the construction of § 581 in this regard is resolved

by the consistent departmental practice existing before the reenact- ment. P. 120.

in force, except as modified by treaties.

8. A British ship with unmanifested intoxicating liquors for illegal

importation was seized beyond the three-mile limit, and not within one hour's sailing distance of the coast, and was brought into port, where ship and cargo were libeled. Held:

(1) That the libels should be dismissed because, by reason of the

treaty, this Government lacked the power to seize the ship 'and the power to subject her to our laws. P. 121.

(2) The doctrine that permits the United States to enforce for-

feitures for violation of its laws against property of which it has gained possession through the wrongful act of an individual, applies where the act was such as it might have authorized beforehand,

Argument for the United States.

but not where the United States itself would have had no jurisdic- tion to make the seizure. Jd.

9. The Ship Richmond, 9 Cranch 102, and The Merino, 9 Wheat.

391, also are distinguished. P. 122.

56 F. (2d) 921, reversed.

CERTIORARI' to review the reversal of a decree,51 F. (2d) 292, dismissing two libels, against a vessel and its cargo.

Messrs. Joseph E. Fitzpatrick and Edmund M. Toland, with whom Mr. Mortimer W. Newton was on the brief, for petitioner.

Solicitor General Thacher, with whom Assistant At- torney General Youngquist and Messrs. Whitney North Seymour, A. W. Henderson, and W. Marvin Smith were on the brief, for the United States.

A libel for forfeiture must allege a seizure which has not been abandoned but the seizure need not be valid to sus- tain the jurisdiction. See The Richmond, 9 Cranch 102; The Ann, 9 Cranch 289, 291; Gelston v. Hoyt, 3 Wheat.

246, 310; The Merino, 9 Wheat. 391, 402-403; Wood v.

United States, 16 Pet. 342, 359; Taylor v. United States, 3 How. 197, 205, 206; Dodge v. United States, 272 U. S.

530. See also Strong v. United States, 46 F. (2d) 257,

260-261, dismissed pursuant to stipulation, 284 U. S. 691; The Conejo, 16 F. (2d) 264, 265; The Underwriter, 13 F.

(2d) 433, 434, affirmed on other grounds sub nom. Maul

v. United States, 274 U. S. 501; The Rosalie M., 12 F.

(2d) 970, 971; United States v. Story, 294 Fed. 517, 519.

The question concerns the venue; and the United States by filing its libel for forfeiture may ratify what would otherwise have been an illegal seizure. The treaty did not change any law of the United States prescribing pen- It related merely to the arrest of alties and forfeitures.

COOK v. UNITED STATES.

Argument for the United States.

persons and the seizure of property suspected of offending against the laws designed to prevent the smuggling into this country of intoxicating liquor. Ford v. United States, 273 U. S. 593. The seizure, if contrary to the treaty, could not relieve the District Court of the duty to determine whether the res had offended against a law of the United States and to condemn the res as forfeited.

Instead of questioning the power of the court to con- sider the causes alleged in the libels the claimant filed answers which made defense upon the merits of the case.

By so doing, it would seem that he waived the right, if any was afforded to him under the treaty, to object that the court was without jurisdiction.

If the question of the legality of the seizure is material and was properly raised, it becomes necessary to consider the effect of the treaty upon the provisions of the tariff acts. The court below held that the treaty did not re- peal the clause fixing a four-league zone in the federal customs and revenue laws, and, therefore, that the valid- ity of the seizure beyond the treaty limits but within four leagues of the coast was not affected. The opinion does not discuss the decision of this Court in Ford v. United States, 273 U. S. 593, 618-619.

The Department of Justice, since 1926, has entertained a contrary view of the treaty in its relation to the tariff acts.

The Commandant of the U. S. Coast Guard was ad- vised in 1927 that all seizures of British vessels captured in the rum-smuggling trade should be within the terms- of the treaty and that seizing officers should be instructed to produce evidence, not that the vessel was found within the four-league limit, but that she was apprehended within one hour's sailing distance from the coast. This construction of the treaty finds support in the following cases: The Frances Louise, 1 F. (2d) 1004, appeal dis-

Argument for the United States.

missed on motion of the Solicitor General, 270 U. S. 666; The Marjorie E. Bachman, 4 F. (2d) 405, appeal dis- missed on motion of the Solicitor General, 270 U. S. 666; The Sagatind, 4 F. (2d) 928, aff'd 11 F. (2d) 673; The Over the Top, 5 F. (2d) 838; Ford v. United States, 10

F. (2d) 339, aff'd 273 U. S. 593; Hennings v. United

States, 13 F. (2d) 74; United States v. Ferris, 19 F. (2d) 925; United States v. Schouweiler, 19 F. (2d) 387; United States v. Cargo ex British Schooner Patara, 40 F.

(2d) 74. After the passage of the Tariff Act- of 1930 the

Department continued to follow this construction. The view of the treaty taken by the Department of Justice is in accord with that of the District Court in this case.

If that view is correct and if the question of the legality of the seizure is material and was properly raised in the District Court. the judgment of the court below should be reversed.

Lawyers for the Government other than those em- ployed in the Department of Justice take a different view of the treaty in its relation to the tariff acts.

In their view the result reached by the court below was correct.

The contention is that the treaty was not a limitation upon the right to search and seize British vessels within the twelve-mile limit, but was an extension of the right always conceded to search and seize within the three-mile limit so as to permit seizures beyond territorial waters, provided the vessel was within one hour's sailing distance; that there was no intention on the part of the United States or Great Britain to surrender claims of sovereign right, except that Great Britain waived its right to pro- test seizures beyond the three-mile limit in a very limited number of cases defined in the treaty, in return for which her ships were permitted to transport intoxicating liquors within the territorial waters of the United States as part of their stores.

COOK v. UNITED STATES. 102

Opinion of the Court.

MR. JUSTICE BRANDEIS delivered the opinion of the Court.

The main question for decision is whether § 581 of the Tariff Act of 1930, c. 497, 46 Stat. 590, 747, is modified, as applied to British vessels suspected of being engaged in smuggling liquors into the United States, by the Treaty between this country and Great Britain proclaimed May (43 Stat. 1761.) That section-which is a re- 22, 1924. enactment in identical language of § 581 of the Tariff Act of 1922, c. 356, 42 Stat. 858, 979--declares that officers of the Coast Guard are authorized to stop and board any vessel at any place within four leagues (12 miles) of the coast of the United States " to examine the manifest and to inspect, search and examine " the vessel and any mer- chandise therein; and if it shall appear that any viola- tion of any law of the United States has been committed by reason of which the vessel or merchandise is liable to forfeiture, it shall be the duty of such officers to seize the same.

On the evening of November 1, 1930, the British motor screw Mazel Tov-a vessel of speed not exceeding 10 miles an hour-was discovered by officers of the Coast Guard within four leagues of the coast of Massachusetts and was boarded by them at a point 111/ miles from the nearest land. The manifest Was demanded and exhibited.

Search followed, which disclosed that the only cargo on board, other than ship stores, was unmanifested intoxi- cating liquor which had been cleared from St. Pierre, a French possession. The vessel ostensibly bound for Nas- sau, a British possession, had, when boarded, been cruising off our coast with the intent that ultimately the liquor should be taken to the United States by other boats. But the evidence indicated that she did not intend to approach nearer than four leagues to our coast; and, so far as ap-

108

Opinion of the Court.

peared, she had not been in communication with our shores and had not unladen any part of her cargo. The boarding officers seized the Mazel Tov at a point more than 10 miles from our coast; took her to the Port of Providence; and there delivered the vessel and cargo to the customs officials.

The Collector of Customs, acting pursuant to § 584 of the Tariff Act of 1930, assessed against Frank Cook, as master of the Mazel Tov, a penalty of $14,286.18 for failure to include the liquor in the manifest. By § 584, if merchandise not described in the manifest is found on board a vessel "bound to the United States," the master is subject to a penalty equal to its value, and the merchan- dise belonging or consigned to him is subject to forfeiture.

By § 594, whenever a master becomes subject to a penalty, the vessel may be seized and proceeded against summarily by libel to recover the penalty. The Government pro- ceeded, in the federal court for Rhode Island, to collect the assessed penalty by means of libels against both the cargo and the vessel. The cases were consolidated.

Cook, claiming as master and bailee of the vessel and as consignee and claimant of the cargo, alleged that the Mazel Toy was of British registry and owned by a Nova to the merits; and Scotia corporation. He answered to the jurisdiction on the ground that the excepted "vessel was not seized within the territorial limits of any jurisdiction of the United States, but, on the contrary, was captured and boarded at a point more than four (4) leagues from the coast," and that-" it was not the inten- tion at any time to enter any of the territorial limits of the United States."

The District Court, having found the facts above stated, dismissed the libels. 51 F. (2d) 292. The Government appealed to the Circuit Court of Appeals, which held that the Treaty did not "effect a change in the customs- revenue laws of the United States wherein Congress had

COOK v. UNITED STATES. 102

Opinion of the Court.

fixed a four league protective zone"; reversed the judg- ments; and remanded the cases to the District Court for further proceedings. 56 F. 921. This Court granted certiorari.'

(2d)

Cook contends, among other things, that by reason of the Treaty between the United States and Great Britain proclaimed May 22, 1924 (43 Stat. 1761), the seizure was unlawful under the laws of the United States; that the authority conferred by § 581 of the Tariff Act of 1922 to board, search and seize within the four league limit, was, as respects British vessels, 2 modified by the Treaty so as

1 The view that the Treaty modified the limits within which British

vessels might be seized for violation of the laws 'prohibiting alcoholic liquors is supported by the following cases: The Frances Louise, 1 F.

(2d) 1004; The Marjorie E. Bachman, 4 F. (2d) 405; The Sagatind,

11 F. (2d) 673, 675; The Over the Top, 5 F. (2d) 838, 844; Ford v.

United States, 10 F. (2d) 339, 347, affirmed, 273 U. S. 593; Hennings

v. United States, 13 F. (2d) 74, 75; United States v. Ferris, 19 F. (2d)

925, 926; United States v. Schouweiler, 19 F. (2d) 387; compare United States v. Cargo ex British Schooner Patara, 40 F. (2d) 74.

In other cases the view has been expressed that the treaties did not re- strict, at all events, the right of seizure. The Vinces, 20 F. (2d) 164, 174, affirmed sub nom. Gillam v. United States, 27 F. (2d) 296 (com- pare id., p. 301); The Panama, 6 F. (2d) 326, 327; The Resolution, 30 F. (2d) 534, 537-538; The Pescawha, 45 F. (2d) 221, 222. Com- pare, also, the following cases in which seizure was made within twelve miles but in which it does not appear whether it was made within an hour's sailing distance or whether the question of the effect of the treaties was raised. The Mistinguette, 27 F. (2d) 738; United States

v. 63 Kegs of Malt, 27 F. (2d) 741; The Newton Bay, 30 F. (2d) 444,

affirmed, 36 F. (2d) 729; The Amaranth, 35 F. (2d) 872; The Marion Phillis, 36 F. (2d) 688; The Deauville, 49 F. (2d) 372; The Thron- dyke, 53 F. (2d) 239; The Miss C. B., 59 F. (2d) 744.

'Similar treaties have been entered into with fifteen other countries.

Norway, July 2, 1924 (43 Stat. 1772); Denmark, July 25, 1924 (43 Stat. 1809); Germany, August 11, 1924 (43 Stat. 1815); Sweden, August 18, 1924 (43 Stat. 1830); Italy, October 22, 1924 (43 Stat.

1844); Panama, January 19, 1925 (43 Stat. 1875); Netherlands, April 8, 1925 (44 Stat, 2013); Cuba, June 19, 1926 (44 Stat. 2395); Spain,

110

Opinion of the Court.

to substitute for four leagues from our coast, the distance which "can be traversed in one hour by the vessel sus- pected of endeavoring to commit the offense "; that Con- gress by re-enacting § 581 in the Tariff Act of 1930 in- tended to continue in force the modification effected by the Treaty; and, hence, that the Mazel Tov, being a Brit- ish vessel of a speed not exceeding 10 miles an hour, could not be lawfully boarded, searched and seized at a distance of 111/2 miles from the coast because suspected of " en- deavoring to import or have imported alcoholic beverages into the United States in violation of the laws there in force."

The Government insists that the Treaty did not have the effect of so modifying § 581 of the Act of 1922; and that, if it did, the re-enactment of § 581 without change, It by the Act of 1930, removed the alleged modification. contends further that the validity of the seizure was not material; and if ever material had been waived.

"Article I. The High Contracting Parties declare that it is their firm intention to uphold the principle that 3 marine miles extending from the coast line outwards and measured from low-water mark constitute the proper lim- its of territorial waters.

"Article II. (1) His Britannic Majesty agrees that he will raise no objection to the boarding of private vessels flag outside the limits of territorial under the 'British

November 17, 1926 (44 Stat. 2465); France, March 12, 1927 (45 Stat.

2403); Belgium, January 11, 1928 (45 Stat. 2456); Greece, February 18, 1929 (45 Stat. 2736); Japan, January 16, 1930 (46 Stat. 2446); Poland, August 8, 1930 (46 Stat. 2773); Chile, November 26, 1930 (46 Stat. 2852). The only substantial difference in these treaties is in Article One, dealing with the general principle of a three-mile limit; in the treaties with Great Britain, the Netherlands, Germany, Cuba, Panama and Japan, the principle is declared to be accepted, while in the others rights and claims in that regard are declared to be reserved.

COOK v. UNITED STATES. 102

Opinion of the Court.

waters by the authorities of the United States, its terri- tories or possessions in order that enquiries may be ad- dressed to those on board and an examination be made of the ship's papers for the purpose of ascertaining whether the vessel or those on board are endeavoring to import or have imported alcoholic beverages into the United States, its territories or possessions in violation of the laws there in force. When such enquiries and examination show a reasonable ground for suspicion, a search of the vessel may be instituted.

"(2) If there is reasonable cause for belief that the ves- sel has committed or is committing or attempting to com- mit an offense against the laws of the United States, its territories or possessions prohibiting the importation of alcoholic beverages, the vessel may be seized and taken into a port of the United States, its territories or posses- sions for adjudication in accordance with such laws.

"(3) The rights conferred by this article shall not be exercised at a greater distance from the coast of the United States, its territories or possessions than can be traversed in one hour by the vessel suspected of endeavor- ing to commit the offense.

In cases, however, in which the liquor is intended to be conveyed to the United States, its territories or possessions by a vessel other than the one boarded and searched, it shall be the speed of such other vessel and not the speed of the vessel boarded, which shall determine the distance from the coast at which the right under this article can be exercised."

We are of opinion that the decrees entered by the Dis- trict Court should have been affirmed.

First. It is suggested on behalf of the Government that the power to search and seize within the twelve-mile zone conferred upon officers of the Coast Guard by § 581 of the Tariff Act of 1922, was unaffected by the Treaty, save that the British Government agreed not to protest where the seizure was within an hour's sailing distance of the

112

Opinion of the Court.

coast. The argument is that the Treaty settled the va- lidity of the seizure only for those cases where it was made within the limits described in the Treaty; and that since this seizure was made beyond one hour's sailing distance In construing from the coast the Treaty did not apply.' the Treaty its history should be consulted. Compare United States v. Texas, 162 U. S. 1; Oklahoma v. Texas, 260 U. S. 606; Nielsen v. Johnson, 279 U. S. 47, 52. Both its language and its history show that the high contracting parties did not intend so to limit its operation. The preamble states that they entered into the Treaty "being desirous of avoiding any difficulties which might arise between them in connection with the laws in force in the United States on the subject of alcoholic beverages." The history reveals that serious differences had arisen between the two Governments in that connection; and that, for the purpose of resolving them, the parties determined to deal completely with the subject of search and seizure, be- yond our territoria' limits, of British vessels suspected of smuggling liquors.

Prior to the Eighteenth Amendment the United States had never attempted, in connection with the enforcement of our customs laws, to board foreign vessels beyond the three-mile limit except where consent was implied from the fact that the vessel, being hailed, answered that she was bound for the United States, or where a vessel had been discovered violating our laws within the three-mile limit and, while endeavoring to escape, was hotly pursued.

Although Hovering Acts conferring authority to board and search vessels, foreign and domestic, "within four leagues of the coast," had existed since the foundation of our Government, see Act of August 4, 1790, c. 35, § 31,

The argument was advanced by the Solicitor General as repre- senting the view not of the Department of Justice but of other lawyers for the Government.

COOK v. UNITED STATES. 102

Opinion of the Court.

the authority therein conferred had, 1 Stat. 145, 164,' prior to the Tariff Act of 1922, been in terms limited to inbound vessels; and no statute had purported to confer authority to seize foreign vessels beyond our territorial waters for violation of any of our laws, except in those few instances in which Congress acted pursuant to specific treaties.' But soon after the Eighteenth Amendment took effect (January 16, 1920), vessels of British registry intoxicating were found to be engaged in smuggling liquors into the United States in violation of our laws.'

In the effort to prevent such violations British vessels were being boarded, searched and seized beyond the three- mile limit;" and by § 581 of the Tariff Act of 1922 Con-

'Re-enacted by Act of March 2, 1799, c. 22, § 71, 1 Stat. 627, 668; and see Rev. Stat. § 3067.

The model for the American statutes was the British Hovering Act of 1736, 9 Geo. II, c. 35, § 23, which provided for the forfeiture of vessels under 100 tons into which foreign goods were taken within four leagues of the coast. Compare the earlier British Hovering Acts of 1709 and 1718: 8 Anne, c. 7, § 17; 5 Geo. I, c. 11.

In 1876 all existing hovering acts were repealed by the Customs Consolidation Act, 39 & 40 Vict., c. 36, which provides in § 159 for the forfeiture of vessels belonging in whole or in part to British subjects or having half the persons on board British subjects, where the vessel is found, or discovered to have been, within three leagues of the coast; and for the forfeiture of other vessels found, or discovered to have been, within one league of the coast. For the development of the British law, see William E. Masterson, Jurisdiction in Marginal Seas, pp. 1-173.

those acts, see Maul v. United States, 274 U. S. 501, 517, 'For note , 18.

'The note of the Secretary of State of June 26, 1922, to the British Ambassador, recites " that many of the, ships engaged in the illegal smuggling of liquor into the United States are registered under the British flag and that large quantities of liquor are carried by such vessels" from British possessions. Dept. of State Press Release, Feb- ruary 16, 1927.

The Henry L. Marshall (286 Fed. 260, 262) was seized August 12, 1921; the Grace and Ruby (283 Fed. 475) on February 23, 1922; the Marion L. Mosher on July 27, 1923 (United States v. United States

Opinion of the Court.

gress undertook to sanction such action through enlarging the authority to board, search and seize beyond the three- mile limit so as to include foreign vessels although not inbound.8

Both before and after the passage of the Tariff Act of 1922 it was the consistent policy of our Government to release, upon protest, all British vessels seized beyond the three-mile limit and not bound to the United States, un- less it appeared that the hovering vessel had, by means of her own small boats and crew, assisted in landing there contraband goods.' Our Government deemed that ex-

Fidelity & Surety Co., unreported, decided August 13, 1923, in the District Court for the Eastern District of New York); the Louise F.

(293 Fed. 933), on November 5, 1923; the Island Home (13 F. (2d) 382), on November 24, 1023; the Muriel E. Winters (6 F. (2d) 466), on January 6, 1924. For notices of other seizures of this kind, not resulting in adjudication, see Philip C. Jessup, The Law of Territorial Waters and Maritime Jurisdiction, pp. 254-256.

In reply to a question in the House. of Commons on June 6, 1923, concerning the number of British vessels seized, the Undersecretary of State for Foreign Affairs replied: "Broadly speaking, some 20 or 25 cases are known to His Majesty's Government where vessels, mostly of Canadian registry, have been seized. The seizures have occurred at varying distances from the shore, some within and some without the three-mile limit. The crews have nearly always been detained for varying periods. His Majesty's Embassy at Washington have acted repeatedly, and in the strongest possible manner, to secure the release of vessels seized outside the three-mile limit, or inside it when a gen- uine case of distress seemed to be made out." 164 Parliamentary De- bates (Commons), 5th series, col. 2212.

'See Congressional Record, Vol. 62, Part 11, 67th Cong., 2d Sess.,

p. 11,593. An amendment to § 581, as reported, was proposed and

withdrawn; the amendment would have made the section applicable specifically th searches and seizures for violation of the laws prohibit- ing alcoholic liquors. As enacted, however, the section did not fall short of the powers which the amendment would have granted in more particular terms. See Philip C. Jessup, The Law of TerritoriaT- Waters and Maritime Jurisdiction, p. 214.

' See Report of the Attorney General, 1923, pp. 89-90. The prac- tice was adopted of requiring a bond, on release, conditioned on thQ

COOK v. UNITED STATES. 102

Opinion of the Court.

ception an essential to the enforcement of our laws and consistent with the principles of international law."

But the British Government declined to acquiesce in the propriety of the exception; declared that our practice of seizing vessels under those circumstances was not in har- mony with the-law of nations;1 1 protested against the seizure of any British vessel outside of the three-mile limit;1" and stated that insistence upon the practice would be regarded as creating " a very serious situation." 18

With a view to removing the British objections, the Secretary of State proposed, on June 26, 1922, that a treaty be entered into " under which the authorities of each nation would be authorized to exercise beyond the

delivery of the cargo to the ports named in the clearance papers.

Ibid. The class of vessels not released was extended, in the case of the Henry L. Marshall, to include a vessel beyond the three-mile limit, where, although the small boats were not the vessel's own, there was unity of control over the vessel and boats. 286 Fed. 260, affirmed, 292 Fed. 486.

1°A statement of the American position is contained in a communi- cation from the Secretary of State to the American Charg6 d'Affaires ad interim in London, dated August 25, 1923. MS. Records, Dept. of State. And see the communication of the Secretary of State to the British Ambassador, January 18, 1923, in which the American position is declared to be supported by the view of the British Government concerning the seizure by the Russian authorities in 1888 of the British schooner Araunah (82 British and Foreign State Papers, p.

1058). Dept. of State Press Release, February 16, 1927. See, also, the address of the Secretary of State before the Council of Foreign Relations, on January 23, 1924, printed in 18 American Journal of International Law, p. 229.

"The British Government stated that by the Customs Consolida- tion Act of 1876 "British municipal legislation is made to conform with international law." Note of July 14, 1923, MS. Records, Dept. of State. For the Act, see note 4, supra.

" The British Ambassador to the Secretary of State, December 30, 1922, Dept. of State Press Release, February 16, 1927.

"The British Charg6 d'Affaires ad interim to .the Secretary of State, July 10, 1923, Dept. of State Press Release, February 16, 1927.

116

Opinion of the Court.

three-mile limit of territorial waters a measure of control over vessels belonging to the other " and which would in- clude specifically "reciprocal provisions authorizing the authorities of each Government to exercise a right of search of vessels of the other beyond the three-mile limit of territorial waters to the extent of twelve miles from the shore." 14 The British Government declined definitely to entertain any such proposal.'

The decision rendered by this Court on April 30, 1923, in Cunard Steamship Co. V'. Mellon, 262 U. S. 100, led to the resumption of negotiations. It was there decided that the National Prohibition Act applied to all merchant ves- sels, foreign or domestic, within the territorial waters of the United States, and that the carrying of intoxicating liquors, either as cargo or as sea stores, through the terri- torial waters or into the ports and harbors of the United States is forbidden by that Act and the Eighteenth Amendment. The embarrassment to British vessels A.nd trade threatened by this decision was serious."0 Recog- nizing the urgent need of some arrangement between the

" Letter to the British Ambassador, June 26, 1922, Dept. of State Press Release, February 16, 1927.

The British Ambassador to the Secretary of State, October 13, 1922, Dept. of State Press Release, February 16, 1927.

" On May 25, 1923, the British Ambassador addressed a note to the Secretary of State protesting against the application of the principle announced in this decision. A reply to this note was sent to the British Ambassador on June 6, 1923. MS. Records, Dept. of State.

The British position was stated at length by Lord Curzon in the House of Lords on June 28, 1923. 54 Parl. Deb. (Lords), 5th series, cols.

721-729.

Protests were likewise sent by the Italian Government, on May 29, 1923; by the Belgian Government, on May 28, 1923; by the Nether- lands Government, on June 1, 1923; by the Norwegian Government, on June 7, 1923; by the Portuguese Government, on July 25, 1923; by the Swedish Government, on May 31, 1923; and by the Danish Government, on June 1, 1923. Dept. of State Press Release, February 16, 1927.

COOK v. UNITED STATES. 102

Opinion of the Court.

two Governments which would permit the conduct by the British of legitimate trade and remove this obstacle to the operation of their vessels in the accustomed man- ner, the Secretary of State submitted to Great Britain, on June 11, 1923, the draft of a treaty designed to remove the friction between the two Governments. The draft did not refer specifically to intoxicating liquors. Article I provided, in general terms, that the authorities of each country should " within the distance of twelve geographi- cal miles from its coasts" be permitted to board and search private vessels of the other to ascertain whether such vessels were engaged in an attempt to violate its laws "prohibiting or regulating the unloading near, or importation into its territories of any article; " and "if there is reasonable cause for belief" that the vessel is so engaged to seize it. Article II, likewise, in general terms, provided that articles on private vessels of either nation listed as sea stores, or as cargo destined to a foreign port, the importation of which is prohibited, might be brought within the territorial waters of the other on condition that they be sealed "upon arrival of the vessel so destined within twelve geographical miles of the coasts" and be kept sealed continuously thereafter while within the territorial waters.

This proposal of the Secretary of State also failed to meet with the approval of the British Government be- cause it was regarded as involving an extension of the limits of the territorial waters.' The negotiations were, however, continued; and ultimately the British Govern- ment submitted a counter-proposal, which sought to achieve the same results by different means. The Brit- ish draft provided that the high contracting parties should

"'The British Charg6 d'Affaires ad interim to the Acting Secretary of State, September 17, 1923, Dept. of State Press Release, February 16, 1927.

118

Opinion of the Court.

declare "their firm intention to uphold the principle that low water mark three marine miles measured from constitute the proper limits of territorial waters "; and avoiding all language which could possibly indicate a con- trary purpose, it made no reference to the twelve-mile limit. Moreover, the arrangement, instead of applying generally to merchandise subject to prohibitory or regu- latory laws, was to be limited specifically to intoxicating liquors; and no reciprocal rights were to be conferred.

Each country was to secure the immunity required to satisfy its peculiar need. The need of the United States was to be met by providing that His Britannic Majesty "will raise no objection to the boarding," etc., outside the territorial waters at no "greater distance from the coast of the United States than can be traversed in one hour by the vessel suspected of" smuggling. The need of Great Britain was to be met by our allowing "British vessels voyaging to or from the ports or passing through the waters of the United States to have on board alcoholic liquors listed as sea stores or as cargo destined for a foreign port, provided that such liquor is kept under seal while within the jurisdiction of the United States." "I

The draft of treaty submitted by the British Govern- ment was accepted with a few purely verbal changes.

Thereby, as stated in Ford v. United States, 273 U. S. 593, 609-610, this country secured "a definite fixing of the zone of legitimate seizure of hovering British vessels seek- ing to defeat the laws against the importation of liquor into this country from the sea."

Second. The Treaty, being later in date than the Act of 1922, superseded, so far as inconsistent with the terms of the Act, the authority which had been conferred by § 581 upon officers of the Coast Guard to board, search

"Draft Treaty, left with the Secretary of State by the British Charg6 d'Affaires, December 3, 1923.

COOK v. UNITED STATES. 102

Opinion of the Court.

and seize beyond our territorial waters. Whitney v.

Robertson, 124 U. S. 190, 194. For in a strict sense the Treaty was self-executing, in that no legislation was necessary to authorize executive action pursuant to its provisions."9 The purpose of the provisions for seizure in § 581, and their practical operation, as an aid in the enforcement of the laws prohibiting alcoholic liquors, leave no doubt that the territorial limitations there established were modified by the Treaty. This conclusion is supported by the course of administrative practice. Shortly after the Treaty took effect, issued amended instructions for the Coast Guard which pointed out, after reciting the provisions of § 581, that " in cases of special treaties, the provisions of those treaties shall be complied with "; and called attention particularly to the recent treaties dealing with the smuggling of intoxicating liquors.'* The Commandant of the Coast Guard, more- over, was informed in 1927, as the Solicitor General states, that all seizures of British vessels captured in the rum- smuggling trade should be within the terms of the Treaty and that seizing officers should be instructed to produce evidence, not that the vessel was found within the four- league limit, but that she was apprehended within one hour's sailing distance from the coast.

the Treasury Department

Third. The Treaty was not abrogated by re-enacting § 581 in the Tariff Act of 1930 in the identical terms of the

"Ford v. United States, 273 U. S. 593. Such was the view of the Secretary of State, expressed in a letter of March 3, 1924, to the Chairman of the House Committee on Foreign Affairs. See Hearings Before the Committee on Foreign Affairs, House of Representatives, on H. Res. 174, 68th Cong., 1st Sess., p. 7. Compare, as to the mean- ing of "self-executing," Edwin D. Dickinson, Are the Liquor Treaties Self-Executing? 20 American Journal of International Law, p. 444.

"Amendments

to Instructions, Customs, Navigation, and Motor- Boat Laws and Duties of Boarding Officers, 1923, No. 3, issued December 11, 1924.

Opinion of the Court.

Act of 1922. A treaty will not be deemed to have been abrogated or modified by a later statute unless such pur- pose on the part of Congress has been clearly expressed.

Chew Heong v. United States, 112 U. S. 536; United States v. Payne, 264 U. S. 446, 448. Here, the contrary appears. The committee reports and the debates upon the Act of 1930, like the re-enacted section itself, make no reference to the Treaty of 1924. Any doubt as to the construction of the section should be deemed resolved by the consistent departmental practice existing before its re- enactment.

Compare United States v. G. Falk & Brother, 204 U. S. 143; Nagle v. Loi Hoa, 275 U. S. 475, 481; Brewster v. Gage, 280 U. S. 327, 337; McCaughn v.

Hershey Chocolate Co., 283 U. S. 488, 492; United States

v. Ryan, 284 U. S. 167, 175. No change, in this respect,

was made either by the Department of the Treasury or the Department of Justice after the Tariff Act of 1930.

Searches and seizures in the enforcement of the laws prohibiting alcoholic liquors are governed, since the 193& Act, as they were before, by the provisions of the Treaty.

Section 581, with its scope narrowed by the Treaty, re- mained in force after its re-enactment in the Act of 1930.

The section continued to apply to the boarding, search and seizure of all vessels of all countries with which we had no relevant treaties.

It continued also, in the en- forcement of our customs laws not related to the prohibi- tion of alcoholic liquors, to govern the boarding of vessels of those countries with which we had entered into treaties like that with Great Britain.

Fourth. As the Mazel Toy was seized without warrant of law, the libels were properly dismissed. The Govern- ment contends that the alleged illegality of the seizure is immaterial.

It argues that the facts proved show a vio- lation of our law for which the penalty of forfeiture is prescribed; that the United States may, by filing a libel

COOK v. UNITED STATES. 102

Opinion of the Court.

for forfeiture, ratify what otherwise would have been an illegal seizure; that the seized vessel having been brought into the Port of Providence, the federal court for Rhode Island acquired jurisdiction; and that, moreover, the claimant by answering to the merits waived any right to object to enforcement of the penalties. The argument rests upon misconceptions.

It is true that where the United States, having posses- sion of property, files a libel to enforce a forfeiture result- ing from a violation of its laws, the fact that the possession was acquired by a wrongful act is immaterial. Dodge v.

United States, 272 U. S. 530, 532. Compare Ker v.

Illinois, 119 U. S. 436, 444. The doctrine rests primarily upon the common-law rules that any person may, at his peril, seize property which has become forfeited to, or forfeitable by, the Government; and that proceedings by the Government to enforce a forfeiture ratify a seizure made by one without authority, since ratification is equiv- alent to antecedent delegation of authority to seize.

Gelston v. Hoyt, 3 Wheat. 246, 310; Taylor v. United States, 3 How. 197, 205-206. The doctrine is not appli- cable here. The objection to the seizure is not that it was wrongful merely because made by one upon whom the Government had not conferred authority to seize at the place where the seizure was made. The objection is that the Government itself lacked power to seize, since by the Treaty it had imposed a territorial limitation upon its own authority. The Treaty fixes the conditions under which a "vessel may be seized and taken into a port of the United States, its territories or possessions for adjudi- cation in accordance with " the applicable laws. There- by, Great Britain agreed that adjudication may follow a rightful seizure. Our Government, lacking power to seize, lacked power, because of the Treaty, to subject the vessel to our laws. To hold that adjudication may follow a wrongful seizure would go far to nullify the purpose

Dissent.

and effect of the Treaty. Compare United States v.

Rauscher, 119 U. S. 407.

The case differs from The Richmond, 9 Cranch 102, and The Merino, 9 Wheat. 391, where forfeitures of vessels wrongfully seized by our Navy were upheld."' There, the vessels seized were of American registry; and the seizures did not violate any treaty, but were merely violations of the law of nations because made within the territory of In those cases it was held that the il- another sovereign. legality of the seizures did not affect the venue of the ac- tion or the process of the court. Here, the objection is It is to the jurisdiction of the United more fundamental.

States. The objection is not met by distinguishing be- tween the custody of the Coast Guard and the subsequent custody of the marshal. Nor is it lost by the entry of an answer to the merits. The ordinary incidents of posses- sion of the vessel and the cargo yield to the international agreement.

The decree of the Circuit Court of Appeals is Reversed.

are of opinion that in respect of British vessels engaged in smuggling intoxicating liquor into the United States the treaty of 1924 was not intended to cut down the rights claimed by the United States under the hovering statutes in force since the organization of our government, but that it was the purpose of both countries to extend and en- large such rights to enable the United States more effec- tively to enforce its liquor laws and that therefore the de- cree of the Circuit Court of Appeals should be affirmed.

MR. JUSTICE VAN DEVANTER took no part in the con- sideration or decision of this case.

'See, also, The Homestead, 7 F. (2d) 413, 415. Compare United States v. Bowman, 260 U. S. 94.