abstract. Many state and federal statutes provide that when property is used
in certain prohibited ways, ownership of the property passes to the government.
Often, the statutes allow these forfeitures to be declared in civil proceedings
against the property itself, without the normal safeguards of the criminal
process. Indeed, if no one claims the property after proper notice, the
government’s assertion of ownership can become incontestable without any
judicial proceedings at all. Statutes authorizing such civil or administrative
forfeiture might seem like egregious violations of both property rights and
criminal-procedure rights guaranteed by the federal Constitution. But while
forfeiture statutes may be unfair and unwise, this Feature cautions
originalists not to assume that they are unconstitutional. The Feature
concludes that the original meaning of the Constitution (as liquidated by
historical practice) does not foreclose the three key features of forfeiture
statutes considered here: the fact that noncriminal forfeiture typically
proceeds in rem rather than in personam, the fact that people often must file
timely claims in order to trigger judicial proceedings, and the fact that claimants
are not afforded the procedural protections that the Constitution requires for
criminal defendants.
author. Emerson G. Spies Distinguished
Professor of Law and Elizabeth D. and Richard A. Merrill Professor, University
of Virginia School of Law. For helpful comments at various stages, I thank
Barry Cushman, Rachel Harmon, John Harrison, and Ann Woolhandler. They are not
to blame for my errors.
Introduction
Everyone knows that the law denies people property rights in
illegal drugs and other contraband.1 But nonlawyers sometimes are
startled to learn that the law also strips people of property rights in
everyday items that simply have been used in a prohibited way. For instance,
when someone transports illegal drugs in a car, the federal Controlled Substances
Act provides that ownership of the car thereby passes to the federal
government.2
Many other categories of property, including houses and land as well as
personal property, are similarly “subject to forfeiture to the United States”
if they are used in connection with drug trafficking or if they are the
proceeds of such trafficking.3 In the words
of the Controlled Substances Act, “no property right shall exist in [these
things]”4
and “[a]ll right, title, and interest in [them] . . . shall vest
in the United States upon commission of the act giving rise to forfeiture.”5
To enforce these forfeitures, the government can use a
special set of procedures that may startle even lawyers. When the government
alleges that personal property has been forfeited under the Controlled
Substances Act, the government often can perfect its title without going to
court (aside, perhaps, from the ex parte process of getting a warrant to seize
the property in the first place).6 The government
does have to provide public notice of the seizure and its intention to declare
the property’s forfeiture, and the government must also send written notice “to
each party who appears to have an interest in the seized article.”7 Any interested person who wants to
contest the government’s position can trigger judicial proceedings by filing a
claim to the property.8 But that is
not always advisable; the relevant judicial proceedings might take the form of
a criminal prosecution against the claimant,9
and in any event they might cost the claimant more than the property is worth.10 Whether for those reasons or because
the government is usually correct, most forfeitures under the federal drug laws
are uncontested.11 And if no one files a claim within a
fairly short deadline, the process need go no further: an administrative
official can issue a binding declaration of forfeiture, clearing the way for
the government to sell the property at auction or retain it for the
government’s own use.12
Under current federal law, this method of “administrative
forfeiture” is available only for personal property (including cash),13
and only when no one files a claim. But even when the government needs to get
the courts involved, the government does not have to proceed in personam
against the former owner. Instead, the government often can seek judicial
confirmation of its ownership through proceedings in rem against the property
itself.14
While claimants have a right to participate in these “civil-forfeiture”
proceedings,15
they usually have no right to appointed counsel,16
and they also lack some of the other procedural advantages that would attend a
criminal prosecution. For instance, instead of having to prove each element of
a criminal offense beyond a reasonable doubt, the government need only prove
that the property is subject to forfeiture by a preponderance of the evidence.17
Over the past few decades, these practices have gone through
a cycle of expansion and reform. Starting in the 1970s and accelerating in the
1980s, Congress and state legislatures made civil and administrative forfeiture
an increasingly prominent tool of law enforcement, first in the war on drugs
and then in other areas.18 In the 1990s, critics across the
political spectrum19 raised
concerns about the plight of innocent owners who were not themselves responsible
for the misuse of their property,20 the dangers of letting police
departments and other enforcement agencies fund themselves through forfeiture,21 and the need for more procedural
safeguards to guard against erroneous or abusive confiscations of property.22
Congress responded to some of these criticisms by enacting the Civil Asset
Forfeiture Reform Act of 2000,23 which made
targeted changes to federal forfeiture laws.24
More recently, the Department of Justice has been reviewing its asset-forfeiture
program, and the Department has announced new restrictions on how it will use a
few of the powers that federal law gives it.25 Some state legislatures have gone
much farther; nine states require most forfeitures to be predicated on criminal
convictions,26 and one of those states no longer
authorizes civil forfeiture at all.27 Still, at the federal level and in
most states, a great deal of forfeiture continues to occur outside the criminal
process.28
Groups ranging from the American Civil Liberties Union29
and the National Association of Criminal Defense Lawyers30
to the Heritage Foundation31 and the
Institute for Justice32 are pushing
for further legislative reform. Ever since the 1990s, however, some lawyers and
scholars have been asking a more basic question: are civil and administrative
forfeiture even constitutional?33
This Feature examines
evidence bearing on how originalists, in particular, might analyze that
question. More precisely, this Feature evaluates the constitutionality of civil
and administrative forfeiture from the perspective of the version of
originalism that I accept, in which historical research can serve at least two
different functions.34 To the extent that particular constitutional
provisions have a determinate “original meaning,” historical research may help
modern readers identify that meaning.35 But to the extent that the original meaning
of the Constitution is indeterminate, historical research can also help
establish how those indeterminacies were resolved or “liquidated” over time. As
I have discussed elsewhere,36
the concept of “liquidation” was prominent during the Founding era, when the
verb “to liquidate” could mean “to render unambiguous.”37 Just as a “liquidated damages” clause in a
contract might pick a single number from a range of possibilities,38 so too leading members of the Founding
generation anticipated that post-Founding practices or precedents would settle
on one of the permissible interpretations of provisions that lent themselves to
multiple readings.39
In the absence of “extraordinary and peculiar circumstances,”40 moreover, those liquidations were expected
to be permanent; they would fix the Constitution’s meaning on points that could
otherwise have been disputed.41
For anyone who
accepts the concept of liquidation,42 it seems likely to play a prominent role in
debates about civil forfeiture. The constitutional provisions that may be most
directly relevant—the prohibitions on depriving people of property
“without due process of law”43—are widely thought to be at least
somewhat indeterminate.44 As modern courts and commentators well know,
moreover, civil forfeiture has an impressive historical pedigree: the
practice dates back to colonial America, continued unabated after the Founding,
and has not been rejected even today.45
Of course, the facts that myriad early statutes included
forfeiture provisions and that courts willingly enforced those provisions
through civil proceedings in rem do not automatically prove that civil
forfeiture comports with the original meaning of the Constitution. Precisely
because civil forfeiture predated the Founding, early legislators and judges
may simply have followed familiar practices without appreciating the legal
import of the Due Process Clause or other relevant aspects of the Constitution.
But to the extent that practice can liquidate the meaning of the Constitution
on uncertain points, history tends to validate the constitutionality of civil
forfeiture unless the history is more
limited than it seems or the meaning of the Constitution is not uncertain.
Part I of this Feature considers possible limits on the
history. Several modern authors have argued that most early statutes
authorizing in rem forfeiture proceedings did so in contexts where the
statutes’ requirements could not reliably be enforced in personam, and these
authors suggest that history does not validate the use of in rem forfeiture in
other contexts.46 There is something to that
argument—but, in my view, not enough. Both at the federal level and in
the states, various early statutes authorized forfeitures to be enforced in rem
even in the absence of any obvious barrier to proceedings in personam. As far
as I know, moreover, no early judges or lawyers interpreted the Due Process
Clause or related constitutional provisions to draw the distinction that modern
authors have suggested.
Part I goes on to consider a separate possible limitation.
Historically, statutes authorizing in rem forfeiture reached only items that
were themselves involved in illegal conduct, not items that simply were
purchased with the proceeds of such conduct. The use of in remprocess against the latter items is a
modern development. Given other well-accepted legal principles, though, Part I
concludes that this historical distinction does not make a constitutional
difference.
Part II considers a more fundamental objection to civil
forfeiture: under most of the relevant statutes, the forfeiture of property can
be regarded as a punishment for illegal behavior, and perhaps the Constitution
should be understood to prevent the imposition of punishment through civil
process. As Part II notes, the idea that punishment requires criminal process
can be traced back to nineteenth-century debates over punitive damages. But
those debates were resolved in favor of the constitutionality of using civil
process to impose some forms of punishment. Dating back to the beginning of the
Republic, moreover, state and federal statutes routinely backed up their
requirements with the threat of monetary penalties for violations, and such
penalties routinely were collected through civil actions. The forfeiture of
specific items of property does not seem any different—and, historically,
it too has been enforced through civil process.
To be sure, some
forms of punishment can be imposed only through criminal process. Cases in
which the government asks a court to punish someone with death or imprisonment
surely trigger the special procedural protections that the Constitution
requires for criminal prosecutions. But centuries of practice support the idea
that civil process can be used to declare the loss of property, even when that
loss is punitive.
Part III considers one further argument: even if statutes can
validly authorize civil forfeiture,
perhaps Congress cannot validly authorize administrative
forfeiture. Read broadly, a recent dissent by Chief Justice Roberts might seem
to suggest that executive officials can never declare, authoritatively, that
property has been forfeited to the United States; perhaps a binding declaration
of forfeiture requires “judicial” power even if no one claims the property
after proper notice.47 Again,
though, Part III rejects this idea. While federal statutes authorizing
administrative forfeiture date back only to 1844 and not to the Founding,48
other well-accepted practices are analytically indistinguishable. If Congress
can establish other statutory deadlines for challenging executive action, then
Congress can also establish deadlines for contesting the government’s ownership
of property that the executive branch has seized.
These conclusions give me no pleasure. I am skeptical that
current forfeiture laws are good policy. But laws can be unwise and even unfair
without being unconstitutional. In my view, the basic characteristics of civil
and administrative forfeiture considered in this Feature are consistent with
the original meaning of the Constitution as liquidated over time. Reform
efforts should continue to focus on the political branches, not the courts.
I. in
rem versus
in personam
Forfeiture laws
address the ownership of property. Although the details vary, the typical
forfeiture statute provides that when an item is possessed or used in violation
of specified legal restrictions, private ownership of the item ceases and title
vests in the government by operation of law.49 Subject to some procedural restrictions,
moreover, the statute often makes it possible for law-enforcement officials to
take immediate possession of the item, through seizure, before the (former)
owner has had a chance to contest the government’s position in court.50
Of course, statutes
cannot automatically give conclusive effect to an executive officer’s
determination that property previously vested in a private individual or entity
has been used in such a way that the property now belongs to the government.
Under doctrines that became prominent in the mid-nineteenth century but that
have roots in earlier understandings of both the federal Constitution and its
state counterparts, “[t]he legislative power . . . cannot directly reach the
property or vested rights of the citizen, by providing for their forfeiture or
transfer to another, without trial and judgment in the courts.”51
At the very least, the law could not authorize nonjudicial officials to make an
authoritative declaration of forfeiture unless the former owners had an opportunity to contest the government’s
position in court.52
The requisite
judicial proceedings, however, did not necessarily have to be conducted in
personam. As Section I.A briefly
describes, in rem forfeiture proceedings
have an exceedingly long history in Anglo-American law. Section I.B considers
some efforts by modern scholars to cabin the relevant history, but concludes
that those efforts fail. Indeed, Section I.C argues that even the modern
expansion of in rem forfeiture
to the proceeds of illegal conduct
probably does not offend the Due Process Clauses as originally understood. In
any event, given the modern convergence of in rem and in personam
proceedings, Section I.D suggests that the in rem nature of civil forfeiture is not a promising target for
constitutional attack.
A. A
Brief History of In Rem Forfeiture
Long before the
American Revolution, both the English Parliament and legislatures in the
American colonies were using the threat of forfeiture to encourage compliance
with statutes. Forfeitures of this sort, moreover, often were enforced through
civil proceedings in rem. Modern
courts and commentators already know the outlines of the relevant history,53
but this Section provides a brief recap.
From the colonists’
perspective, some of the most prominent forfeiture provisions in English law
appeared in the Navigation Acts, many of which regulated colonial trade in the
service of England’s mercantilist system.54
For instance, the Navigation Act of 1660 required that English ships be used to
carry imports to and exports from the American colonies, “under the penalty of
the Forfeiture and Losse of all the Goods and Commodityes which shall be
Imported into, or Exported out of, any the aforesaid places in any other Ship
or Vessell, as alsoe of the Ship or Vessell with all its Guns Furniture Tackle
Ammunition and Apparell.”55
The same Act added that certain important products (including sugars, tobacco,
cotton, and wool) could not be exported from the American colonies to any place
not dependent on the English Crown, again upon pain of forfeiting both the
goods and the ship that carried them.56 A few years later, Parliament imposed
similar restrictions in the other direction: most goods produced or
manufactured in Europe could enter the colonies only by way of England or
Wales, and goods illegally imported from elsewhere were forfeited along with
the ship in which they were imported.57
Judicial proceedings
to enforce these forfeitures could take various forms. For instance, the
Navigation Act of 1660 explicitly authorized one of its provisions to be
enforced through prize cases in admiralty.58 The term “prize case” refers to a special
type of proceeding in rem.59 The laws of war allowed vessels acting under
the authority of one of the warring nations to try to capture vessels and
cargos belonging to citizens or subjects of the enemy.60
Upon a capture, the captors would take their prize to port and initiate in
rem proceedings in a court of
admiralty.61
Owners who denied that the property was lawful prize could appear in those
proceedings to contest the captors’ position,62 but if the court agreed with the captors,
the court would enter a decree condemning the property, and the proceeds would
be distributed according to the law of the capturing nation.63
In a sense, the
typical wartime prize case was a type of forfeiture proceeding, because the
previous owners were losing their property. But the cause of the forfeiture was
not that the property had been involved in some legal infraction.64
Instead of being a tool of law enforcement, prize cases usually were a tool of
war. Indeed, the law of prize was simply one manifestation of a broader
principle: as far as the laws of war were concerned, a nation could seize and
condemn all property owned or
possessed by the enemy’s adherents, on the theory that all such property adds
to the enemy’s strength.65 The prize cases authorized by the Navigation
Act of 1660 were different, because they covered only property linked to
violations of the Act. Specifically, the section of the Act that prohibited the
use of foreign vessels for carrying goods to or from the colonies included the
following enforcement provision:
[A]ll Admiralls and other Commanders at Sea of any
the Ships of War or other Ship haveing Comission from His Majesty
. . . are hereby authorized and strictly required to seize and bring
in as prize all such Ships or Vessells as shall have offended contrary hereunto
and deliver them to the Court of Admiralty there to be proceeded against . . . .66
Apart from this
provision authorizing certain naval seizures to be treated as prizes, many
sections of the Navigation Act of 1660 indicated that their forfeitures could
be enforced qui tam, through actions
brought “in any Court of Record” by any appropriate process (“Bill Information
Plaint or other Action”).67 Despite this apparent breadth of options,
scholars agree that in England, as opposed to the colonies, the main forum for
enforcement proceedings was the Court of Exchequer—“the historic court of
the King’s revenue.”68 There,
forfeiture proceedings “were commenced by civil information, . . . either in
personam or in rem.”69 (The “information in rem” in the Court of
Exchequer was a traditional means for the king or a qui tam informer to obtain a judicial decree recognizing the
Crown’s ownership of specific items of property.70 Although modern readers may think of
“informations” as being exclusively criminal, that was not the nature of
informations in the Court of Exchequer: even when brought to enforce statutory
forfeitures, an action upon an information in rem was a civil proceeding about the ownership of property.71
Indeed, the Court of Exchequer was said to have no criminal jurisdiction at
all.72)
In addition to the
restrictions on commerce found in the Navigation Act of 1660, England’s acts of
trade and navigation imposed customs duties on various goods.73 Parliament backed up such duties with the
threat of forfeiture, and the forfeiture provisions sometimes covered not only
goods that were smuggled into England without payment but also the ships that
were used to carry them, the boats that were used to unload them, and the
horses and carriages that were used to take them away.74 Again, the Court of Exchequer was the
traditional forum in England for actions to enforce forfeitures under both
customs and excise statutes,75
and again informations in rem
were used for this purpose.76 (In the early eighteenth century, Parliament
authorized many forfeitures under these statutes to be handled instead by local
justices of the peace or commissioners of the excise,77 but these matters too proceeded in
rem.78)
In the American
colonies too, forfeitures for violations of the acts of trade and navigation
were frequently enforced through civil proceedings in rem. Because the colonies lacked specialized
courts of exchequer, many early enforcement proceedings were brought in the
colonies’ existing courts of common law, which are said to have “closely
followed the procedure in Exchequer” (complete with trial by jury even in
proceedings in rem).79
By the end of the seventeenth century, though, “the obstinate resistance of
American juries” had led the Crown to seek another mechanism for enforcing the
Navigation Acts.80 In 1696, Parliament gave concurrent
jurisdiction over enforcement proceedings in the colonies to a set of
vice-admiralty courts (which sat without juries),81 and those courts eventually became the
primary forum for cases in the colonies about alleged violations of the
Navigation Acts.82
Again, forfeiture proceedings in the colonial vice-admiralty courts could
be—and were—brought in rem.83
England’s approach to
colonial trade took a new direction in the 1760s, when Parliament sought to
address war debt by extracting more revenue from the colonies.84 For instance, the Revenue Act of 1764
(portions of which were short-lived) increased customs duties on various goods
imported into or exported from the colonies.85 Like other customs laws, the Act not only
threatened smugglers with personal penalties but also provided for the
forfeiture of property used in connection with smuggling.86 The Act also explicitly allowed prosecutors
and informers to bypass juries by using the vice-admiralty courts to recover
any forfeiture or penalty incurred in the colonies under “any . . . act or acts
of parliament relating to the trade and revenues of the said . . .
colonies”—even when analogous enforcement proceedings in England would
not trigger admiralty jurisdiction.87
Colonists bitterly complained both about taxation without
representation and about the use of the vice-admiralty courts for revenue
matters that, in England, would have been tried to a jury in the Court of
Exchequer.88
But while the vice-admiralty courts were highly unpopular, the colonists did
not reject the general concept that statutes might use forfeiture as a tool of
law enforcement, or that forfeiture proceedings might be brought in rem rather
than in personam. To the contrary, when the United States gained independence,
the new states continued to use the threat of forfeiture to back up their own
customs and antismuggling laws, and many statutes explicitly authorized in rem
proceedings to enforce such forfeitures.89
Once the Constitution created a federal Congress with
authority to levy taxes and to regulate interstate and foreign commerce, the
same was true at the federal level. When Congress convened in 1789, it promptly
imposed customs duties on imported goods90
and tonnage duties on ships,91 and the
Collection Act that Congress passed to enforce those duties is replete with
forfeiture provisions.92 Different
types of infractions triggered forfeitures of different breadth. For instance,
removing dutiable goods from a wharf before they were weighed or gauged made
only the goods themselves forfeit.93
But if goods worth at least $400 were unloaded and delivered from a vessel at
nighttime, or without a permit from the collector of customs, the forfeiture
extended to the vessel as well as the goods.94
With respect to these and other forfeitures, the statute contemplated in rem
proceedings against the forfeited goods and vessels, initiated by “seizure and
libel” and culminating in “condemnation.”95
Although the federal Constitution did not have a Due Process
Clause when Congress enacted these provisions and the similar provisions in the
Collection Act of 1790,96 ratification
of the Bill of Rights did not change Congress’s practices with regard to
forfeiture. Thus, when Congress revised the Collection Act in 1799, the new
statute included equally extensive forfeiture provisions,97
to be enforced through the same in rem proceedings.98
Early Congresses also used the threat of forfeiture (again enforced in rem) to
back up many other statutory restrictions on shipping, including limitations on
the slave trade,99
prohibitions on exporting certain goods,100
and embargoes on trading with certain nations.101
Notwithstanding the old complaints about colonial
vice-admiralty courts, the Supreme Court soon held that when vessels or cargos
were seized on navigable waters under these or other statutes, the ensuing
forfeiture proceedings were properly brought in admiralty.102
By contrast, when property was seized on land, forfeiture cases usually
proceeded at law.103 Whether
brought in admiralty or at law, though, forfeiture proceedings were commonly
conducted in rem. (At law, the normal process was an information in rem of the
sort used in England’s Court of Exchequer.104
In admiralty, the process was sometimes called an information and sometimes
called a libel, but again it was in rem.105)
The norm of enforcing forfeitures in rem was strong enough to
affect the interpretation of statutes that declared forfeitures but were not
specific about enforcement procedures. In 1809, for instance, Congress
supplemented the then-existing Embargo Act with further penal
provisions—some declaring forfeitures of vessels and cargos, others
imposing civil or criminal penalties on individuals.106
The 1809 statute addressed enforcement as follows: “[A]ll penalties and
forfeitures incurred by force of this act . . . may be prosecuted, sued for,
and recovered by action of debt, or by indictment or information . . . .”107
In an opinion prepared on circuit, Justice Story concluded that the word
“information” should be understood to encompass “proceedings in rem, for
forfeitures.”108 He went on to indicate that such
proceedings were the standard way to recover forfeitures—so that even if
the statute had said nothing at all about the mode of enforcement, “I should
have had no doubt that an information [in rem] would have lain upon common law
principles.”109
That was true even when forfeitures were incurred for
violations of a statute that also authorized personal penalties against
violators themselves: proceedings in rem to enforce a forfeiture did not have
to be predicated upon proceedings in personamagainst any violator (unless the relevant statute provided
otherwise). The standard citation for that proposition is The Palmyra,110 a forfeiture
proceeding brought in rem under a federal statute that not only authorized the
prosecution of “any person or persons [who] shall, on the high seas, commit the
crime of piracy, as defined by the law of nations, and . . . shall
afterwards be brought into or found in the United States,” but also authorized
condemnation proceedings against “any vessel or boat, from which any piratical
aggression, search, restraint, depredation or seizure shall have been
. . . attempted or made.”111
According to Justice Story’s opinion for the Supreme Court, the longstanding
practice under statutes that authorized “both a forfeiture in rem and a
personal penalty” was that “the proceeding in
rem stands independent of, and wholly unaffected by any criminal proceeding
in personam.”112
Justice Story confirmed this understanding of the law: “[N]o personal
conviction of the offender is necessary to enforce a forfeiture in rem in cases of this nature.”113
B. Might
History Support In Rem Forfeiture Proceedings Only Where In Personam
Proceedings Would Have Been Difficult?
At least for originalists, the historical pedigree of civil
forfeiture as a tool of law enforcement—dating back to colonial America,
continuing at the state level after independence, and carried forward at the
federal level from the First Congress on—might seem to support the
constitutionality of civil forfeiture as a tool of law enforcement today.
According to some modern commentators, however, the history is more limited
than it initially appears. Early federal forfeiture provisions were
concentrated in customs statutes and other laws about shipping,114 which aimed partly to affect the
behavior of people outside the United States. Under traditional understandings
of personal jurisdiction, American courts could not have exercised in personam
jurisdiction over “at least some . . . and perhaps most” of those
people.115 If Congress had not been able to
authorize in rem forfeiture proceedings against property that entered the
United States in violation of statutory requirements, then foreign shippers and
shipowners might have had little reason to pay customs duties or otherwise to
comply with federal shipping laws. Under these circumstances, in rem
forfeiture proceedings were a practical necessity if American shipping laws
were to be effective.116 Some modern lawyers suggest that
history does not support the use of in rem forfeiture proceedings in other
circumstances.117 If one sees
in rem forfeiture proceedings as compromising constitutional principles,
moreover, one might think that the Constitution prohibits expanding those
proceedings beyond their historical functions. In one of the most powerful
statements of this position, Stefan Herpel concludes that the Due Process
Clauses of the Fifth and Fourteenth Amendments prevent the government from
using civil in rem forfeiture to enforce laws that could readily be enforced
through proceedings in personam.118
The initial premise of this argument has deep historical
roots. Indeed, Rufus Waples—the lawyer who, in 1882, published the first
systematic study of actions in rem in the United States—observed that “in
a great proportion of causes in rem,
there would be no means of making a personal citation upon the owner of the res.”119
Sometimes that was because of territorial limits on jurisdiction in personam,
and sometimes it was simply because of the practical difficulty of identifying
the owner. (To illustrate the latter possibility, Waples noted the realities of
smuggling: when customs inspectors came across a cache of smuggled goods, the
inspectors could readily tell that the goods were being imported in violation
of law, but “it is almost always impossible to know who is the owner.”)120
For one reason or another, though, many of the areas in which American
legislatures traditionally authorized in rem forfeiture proceedings were areas
in which in personam enforcement could have been difficult.
Still, neither Waples nor earlier lawyers and judges
understood the Constitution to limit actions in rem to cases of this sort.121
Nor did early legislatures act upon such a theory. While legislatures did
authorize in rem proceedings in situations where in personam proceedings would
often have been impractical, they also authorized in rem proceedings in other
situations.
Federal tax statutes provide some examples. Admittedly, until
the Civil War, the main (and often the only) federal taxes were customs duties
on imported goods.122 The fact
that federal customs statutes included forfeiture provisions is consistent with
Herpel’s thesis because a sizable fraction of customs violations would have
involved property owned by foreigners.123
But federal customs statutes did not limit the availability of in rem
procedures to this fraction of cases; by the terms of the statutes, forfeiture
proceedings were to be conducted in rem even if the owner of the subject
property could readily have been reached in personam.124
As Herpel acknowledges, moreover, there were periods in both the 1790s and the
1810s when Congress supplemented customs duties with domestic excise taxes
(that is, taxes on the production or sale of certain goods within the United
States).125
These “internal revenue” taxes had no international flavor, yet Congress
enforced them with the same sort of forfeitures that Congress used to enforce
customs duties.126
Take the Act of March 3, 1791, by which the First Congress
imposed an excise tax on “spirits . . . distilled within the United
States.”127
In aid of collecting this tax, the statute not only imposed some monetary
penalties on violators, but also declared a broad variety of forfeitures. For
instance, if spirits were removed from a distillery without having been marked
as the law required, “the [spirits], together with the cask or casks containing
[them], and the horses or cattle, with the carriages, their harness and
tackling, and the vessel or boat with its tackle and apparel employed in
removing them, shall be forfeited, and may be seized by any officer of
inspection.”128
Likewise, spirits were not to be removed from a distillery except during
daylight hours, again “on pain of forfeiture of such spirits” and “the casks,
vessels and cases containing the same.”129
The statute contemplated that these forfeitures could be enforced “by
information,” just like the forfeitures that the same statute established in
aid of the customs duties on imported spirits.130
In the context of excise forfeitures as well as customs forfeitures, moreover,
the word “information” seems to have been understood to encompass informations
in rem.131
This understandi
