The defendant in this case having, after trial upon an indictment based upon section '3082 of the Revised Statutes, been convicted, motions on his behalf are made in arrest of judgment and for a new trial.

The fourth section of the act of congress of July 18, 1866, entitled “An act further to prevent smuggling, and for other purposes” ( 14 Stat. 179 ), provided:

That provision of the law, with some verbal changes, was embodied in the Revised Statutes as section 3082.

In speaking of the fourth section of the act of 1866, the supreme court said in the case of U. S. v. Claflin, 97 U. S. 553 , that congress “had in view, not only punishment of the offense described, but indemnity to the government for loss sustained in consequence of the criminal conduct of those guilty of the offense.” That is *715 plain, from the language employed. See, also, Cotzhausen v. Nazro, 107 U. S. 219 , 2 Sup. Ct. 503; Friedenstein v. U. S., 125 U. S. 224 , 8 Sup. Ct. 838; and U. S. v. A Lot of Jewelry, 59 Fed. 684 , in which latter case it was adjudged that so much of section 3082 of the Revised Statutes as declares a forfeiture of goods imported contrary to law is a subsisting statute. It is with its criminal aspect that we have to deal in the present instance. The language of the statute is very general. So far as applicable here, it reads:

It is said by counsel for the defendant that section 3082 of the-Revised Statutes has no application to the smuggling into the United States of cigars in less quantities than 3,000; that it was never intended for such petty violations of the revenue laws; that those are governed by other provisions of the statutes, and by the rules and regulations prescribed by the secretary of (he treasury; that this is shown in part by the preceding section (..uHl) of the Revised Statutes, which reads as follows:

Such release, in cases falling within the provisions of section 3081, would undoubtedly dispose of the forfeiture feature of section 3082. But, as has already been said, section 3082 has a double aspect; that is to say, it provides not only for the forfeiture of the-smuggled merchandise, in order to secure indemnity to the government for the wrong done to it, but superadds tine or imprisonment, or both, as a vindication of public justice. U. S. v. Claflin, supra. The criminal feature of section 3082 is unaffected by the provisions of section 3081. Is or, in my opinion, is it affected by the provisions, of sections 2804 or 2652 of the Revised Statutes, which provide,, among other things, that no cigars shall he imported unless the same are packed in boxes of not more than 500 in each box, and. that no entry of any imported cigars shall be allowed of less quantity than 3,000 in a single package, aud authorizing the secretary of the treasury to make all necessary regula (ions for carrying those-provisions of the law into effect, and making it the duty of all officers of the customs to execute and carry into effect all instructions of the secretary of the treasury relative to the execution of the revenue laws, and making his decision in respect to the true construction and meaning of any part of the revenue laws conclusive and binding upon all officers of the customs. These provisions deal *716 with the laws intended to secure revenue to the government, and I discover nothing in them to indicate that they were intended to limit those provisions of the statute making it a crime punishable by fine or imprisonment, or both, to knowingly import merchandise contrary to the revenue laws. The amount of costs that attend such prosecutions is not a valid argument for excluding cases from the operation of the statute which manifestly fall within it.

There is room for argument in favor of the proposition that the criminal feature of section 3083 of the Revised Statutes was repealed by the act of February 27, 1877 ( 39 Stat. 240 ), by which act section 3865 of the Revised Statutes was amended by substituting therefor the following:

.But it cannot, I think, be properly so held when it is considered that the act of February 27, 1877, was an act, as its title declared, “to perfect the revision of the statutes of the United States and of the statutes relating to the District of Columbia,” by which a large number of the sections and provisions of the Revised Statutes were stricken out, amended, and otherwise changed, while section 3082 was left wholly unchanged, and bearing in mind the rule declared by the supreme court in U. S. v. Sixty-Seven Packages of Dry Goods, 17 How. 93 , that;

Respecting the animadversions of counsel upon the testimony of the deputy collector in regard to the practice of the customs officers in the San Diego district permitting persons coming from Mexico into the United States to bring with them any number of cigars less than 50 free of duty, it is but fair to say that they were, doubtless, acting pursuant to article 354, p. 146, of the customs regulations of 1892, which provides, among other things, that:

These regulations, prescribed by the secretary of the treasury, like those already referred to, have, I think, no application to that feature of the statute which makes it a crime, punishable Toy *717 line or imprisonment, or both, to fraudulently or knowingly import or bring into the United States any merchandise contrary to law. Two hundred and seventeen cigars are as much merchandise as are as many thousand, and they are not importable into this country from a foreign country except upon the payment of the prescribed duty, and then only in quantities and in the form prescribed by the law’s of the United States. To otherwise bring them into the country fraudulently or knowingly is declared by section 3082 of the Revised Statutes to be a criminal offense, and punishable accordingly. The indictment is based on that section, and is, in my opinion, sufficient under its provisions.

The motion for new trial is based upon the proposition that iu this case the court did not submit to the jury, “as a distinct and separate proposition, whether the alleged acts were done with an actual intention to defraud the United States”; the contention of counsel for defendant now being, although no such request was preferred at the trial, that such a course was required by the provisions of section 16 of the act of congress of June 22, 1874, entitled “An act to amend the customs revenue laws, and to repeal moieties” (1 Supp. Rev. St. p. 76), which reads as follows:

There are two valid answers to this proposition: The first is that section 16 of the act of Jnne 22, 1874, was expressly repealed by the act of June 10, 1890 (1 Supp. Rev. St. [2d Ed.] pp. 34, 755). But, apart from that consideration, it is quite evident, I think, that:, while section 16 of the act of 1874 was a subsisting law, it had no application to a criminal case, but in terms applied to all actions, suits, and proceedings in any court of the United States then pending or thereafter commenced or prosecuted to enforce or declare the forfeiture of any goods, wares, or merchandise, etc., by reason of any violation of the provisions of the customs revenue laws. The counsel for the defendant, in considering the word “all,” immediately preceding “actions, suits,” etc., fails to give proper effect to the qualifying words “to enforce or declare the forfeiture of any goods, wares, or merchandise,” etc. Manifestly, a prosecution for the violation of a criminal statute is in no sense an action, suit, or proceeding to enforce or declare the forfeiture of property.

Motions denied.