Asset Forfeiture - The Early Years

To fully understand the present state of federal forfeiture law, a solid understanding of its evolution is important. The underlying premise of forfeiture is that the "thing" (or "rem" in Latin) has the sentience to know that it has done something wrong and thus deserves a punishment just as a person would merit a punishment for breaking the law. Hence, in Exodus 21:29, it is written, "if the ox were wont to push whith his horn in time past, and if hath been testified to his owner, that he hath killed a man or a woman; the ox shall be stoned and the his owner also shall be put to death." Note also that in Exodus 21:28, it is ordained that the flesh of the ox should "not be eaten". Tough times to live in, but the sentiment is clear -- the ox must pay for his wrong even if he knew not what he was doing.

It didn't take too long for a centralized government – read the sovereign – to realize that the failure to eat a perfectly good ox was a waste of good ox meat. Thus the initiating of the legal institution known as the "Deodand" which is Latin for "to be given to God". The deodand required that any object which caused the death of a man was forfeited to the Crown. By the year 1280, the actual object causing the death was replaced by the value of the thing being forfeited to the King. Thus the small step was taken which initiated a thousand years of morally justified revenue enhancement for the sovereign. Forfeiture was on its way.

In August 1861, presumably seeking ways to vent their frustrations over the session of the Southern states, Congress passed the Confiscation Acts (12 Stat. 319; 12 Stat 589) which authorized the seizure of property, both real and personal, of Confederates and those aiding them. The Supreme Court, in determining that the Acts were constitutional stated:

The Constitution confers upon Congress expressly power to declare war, grant letters of marque and reprisal, and make rules respecting captures on land and water. Upon the exercise of these powers no restrictions are imposed. Of course the power to declare war involves the power to prosecute it by all means and in any manner in which war may be legitimately prosecuted. It therefore includes the right to seize and confiscate all property of an enemy and to dispose of it at the will of the captor. This is and always has been an undoubted belligerent right.

Miller v. United States, 78 U.S. (11 Wall) 268, 305 (1871). 

Emboldened by its new powers to raise revenue from a class that couldn't readily complain, Congress went on to pass an "Act Imposing Taxes on distilled Spierists and Tobacco" (15 Stat. 125, 133 (July 20, 1868). Here, moving for the first time beyond customs, admiralty or war powers, Congress sought to fight those who would avoid liquor tax obligations by authorizing forfeiture of both the real and personal property involved in the liquor making operation.

Again, the Supreme Court waded in holding that "Where the owner of a distillery and other property connected therewith leased them for the purpose of distilling, the acts or omissions of the lessee in carrying on the business of distilling while he was in possession, and with intent to defraud the revenue, although they are unknown to the owner, subject the distillery and such other property to forfeiture to the United States." Dobbins's Distillery v. United States, 96 U.S. 395 (1871). Now, the Rubicon had been crossed. No longer was the wrong doing of the owner of the property important as it was in the war-time confiscation acts -- only the fictional knowledge of the property itself at issue. The intellectual justification for such decision was that the proceedings were "civil" and not "criminal" in nature. The latter of course would require the full panoply of constitutional rights before a forfeiture could be enacted. 

Such a fiction would obviously trouble any right thinking jurist and indeed, in Boyd v. Untied States, 116 U.S. 616 (1886), the Supreme Court found that the Fourth and Fifth amendment do apply in a forfeiture case reasoning that "[a] proceeding to forfeit a person's goods for an offense against the laws, though civil in form, and whether in rem or in personam, is a "criminal case" within the meaning of that part of the Fifth Amendment which declares that no person "shall be compelled, in any criminal case, to be a witness against himself." Mr. Boyd could not be compelled to turn over his personal papers in that case.

Nonetheless, confusion reigned in forfeiture law as the Supremes went on to hold that there was no right to confront one's accusers in a civil forfeiture case (United States v. Zucker, 161 U.S. 475 (1896)) and that proof beyond a reasonable doubt was not required (United States v. Regan, 232 U.S. 37 (1914)). 

There things remained until 1965.