330
Opinion of the Court
myra, 12 Wheat. 1, 13 (1827) (forfeiture of ship); Dobbins's Distillery v. United States, 96 U. S. 395, 400-401 (1878) (forfeiture of distillery)). In so doing, the Government relies upon a series of cases involving traditional civil in rem forfeitures that are inapposite because such forfeitures were historically considered nonpunitive.
The theory behind such forfeitures was the fiction that the action was directed against "guilty property," rather than against the offender himself.5 See, e. g., Various Items of Personal Property v. United States, 282 U. S. 577, 581 (1931) ("[I]t is the property which is proceeded against, and, by resort to a legal fiction, held guilty and condemned as though it were conscious instead of inanimate and insentient"); see also R. Waples, Proceedings In Rem 13, 205-209 (1882). Historically, the conduct of the property owner was irrelevant; indeed, the owner of forfeited property could be entirely innocent of any crime. See, e. g., Origet v. United States, 125 U. S. 240, 246 (1888) ("[T]he merchandise is to be forfeited irrespective of any criminal prosecution. . . . The person punished for the offence may be an entirely different person from the owner of the merchandise, or any person interested in it. The forfeiture of the goods of the principal can form no part of the personal punishment of his agent"). As Justice Story explained:
"The thing is here primarily considered as the offender, or rather the offence is attached primarily to the thing; and this, whether the offence be malum prohibitum, or
5 The "guilty property" theory behind in rem forfeiture can be traced to the Bible, which describes property being sacrificed to God as a means of atoning for an offense. See Exodus 21:28. In medieval Europe and at common law, this concept evolved into the law of deodand, in which offending property was condemned and confiscated by the church or the Crown in remediation for the harm it had caused. See 1 M. Hale, Pleas of the Crown 420-424 (1st Am. ed. 1847); 1 W. Blackstone, Commentaries on the Laws of England 290-292 (1765); O. Holmes, The Common Law 10-13, 23-27 (M. Howe ed. 1963).
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