A. Forfeiture in the United States Before the Civil War

One of the earliest sparks of the American revolution was the outrage of the colonists at the British Crown’s forfeiture of John Hancock’s ship, Liberty, for his failure to pay an unpopular customs duty. Nonetheless, early Congresses resorted to forfeiture in certain limited instances.

Most of these procedures occurred in admiralty law, which historically has had a distinct existence and procedure in the judicial system. Forfeitures of ships that failed to pay customs duties were thought to be necessary to protect the primary source of revenue in the early republic. Thus, in rem civil proceedings, with burdens of proof on owners, were instituted in a manner similar to those used by the British Crown. Early laws, at least in the courts, were narrowly applied, included proportionality requirements, and recognized that forfeiture as a punishment, despite its more liberal procedural setting.

Thus, in an early precedent-setting case, United States v. La Vengeance, the 1796 Supreme Court held that the proceeding involving the seizure of a French ship carrying illegally exported arms and cargo was one of admiralty law in which the cause was civil. Stating that the process was in rem and "does not, in any degree, touch the person of the offender," the Court held that the ship was not entitled to a jury trial. This precedent was followed in subsequent admiralty cases, despite significant criticism of such a profoundly un-American procedure. The legal fiction that a suit could be against the property for its role in an action by the owner was established and followed. Later cases affirmed that a conviction was not required and that innocence would be no bar to forfeiture if the relevant statute makes no exceptions for such owners.