CALERO-TOLEDO v. PEARSON YACHT LEASING CO.

MR. JUSTICE BRENNAN delivered the opinion of the Court.

The question presented is whether the Constitution is violated by application to appellee, the lessor of a yacht, of Puerto Rican statutes providing for seizure and forfeiture of vessels used for unlawful purposes when (1) the yacht was seized without prior notice or hearing after allegedly being used by a lessee for an unlawful purpose, and (2) the appellee was neither involved in nor aware of the act of the lessee which resulted in the forfeiture.

In March 1971, appellee, Pearson Yacht Leasing Co., leased a pleasure yacht to two Puerto Rican residents. Puerto Rican authorities discovered marihuana on board the yacht in early May 1972, and charged one of the lessees with violation of the Controlled Substances Act of Puerto Rico, P. R. Laws Ann., Tit. 24, § 2101 et seq. (Supp. 1973). On July 11, 1972, the Superintendent of Police seized the yacht pursuant to P. R. Laws Ann., Tit. 24, §§ 2512 (a) (4), (b) (Supp. 1973),1 and Tit. 34, § 1722 (1971),2 which provide that vessels used to transport, or to facilitate the transportation of, controlled substances, including marihuana, are subject to seizure and forfeiture to the Commonwealth of Puerto Rico. The vessel was seized without prior notice to appellee or either lessee and without a prior adversary hearing. The lessees, who had registered the yacht with the Ports Authority of the Commonwealth, were thereafter given notice within 10 days of the seizure, as required by § 1722 (a).3 But when a challenge to the seizure was not made within 15 days after service of the notice, the yacht was forfeited for official use of the Government of Puerto Rico pursuant to § 1722 (c).4 Appellee shortly thereafter first learned of the seizure and forfeiture when attempting to repossess the yacht from the lessees, because of their apparent failure to pay rent. It is conceded that appellee was "in no way . . . involved in the criminal enterprise carried on by [the] lessee" and "had no knowledge that its property was being used in connection with or in violation of [Puerto Rican Law]."

On November 6, 1972, appellee filed this suit, seeking a declaration that application of P. R. Laws Ann., Tit. 24, §§ 2512 (a) (4), (b), and Tit. 34, § 1722, had (1) unconstitutionally denied it due process of law insofar as the statutes authorized appellants, the Superintendent of Police and the Chief of the Office of Transportation of the Commonwealth, to seize the yacht without notice or a prior adversary hearing, and (2) unconstitutionally deprived appellee of its property without just compensation.5 Injunctive relief was also sought.

A three-judge District Court,6 relying principally upon Fuentes v. Shevin, 407 U.S. 67 (1972), held that the failure of the statutes to provide for preseizure notice and hearing rendered them constitutionally defective. 363 F.Supp. 1337, 1342-1343 (PR 1973). Viewing United States v. United States Coin & Currency, 401 U.S. 715 (1971), as having effectively overruled our prior decisions that the property owner's innocence has no constitutional significance for purposes of forfeiture, the District Court further declared that the Puerto Rican statutes, insofar as applied to forfeit appellee's interest in the yacht, unconstitutionally deprived it of property without just compensation. 363 F. Supp., at 1341-1342. Appellants were accordingly enjoined from enforcing the statutes "insofar as they deny the owner or person in charge of property an opportunity for a hearing due to the lack of notice, before the seizure and forfeiture of its property and insofar as a penalty is imposed upon innocent parties." Id., at 1343-1344. We noted probable jurisdiction. 414 U.S. 816 (1973). We reverse.

I

Although the parties consented to the convening of the three-judge court and hence do not challenge our jurisdiction to decide this direct appeal, we nevertheless may not entertain the appeal under 28 U. S. C. § 12537 unless statutes of Puerto Rico are "State statute[s]" for purposes of the Three-Judge Court Act, 28 U. S. C. § 2281.8 We therefore turn first to that question.

In Stainback v. Mo Hock Ke Lok Po, 336 U.S. 368 (1949), this Court held that enactments of the Territory of Hawaii were not "State statute[s]" for purposes of Judicial Code § 266, the predecessor to 28 U. S. C. § 2281, reasoning:

Similar reasoning—that the purpose of insulating a sovereign State's laws from interference by a single judge would not be furthered by broadly interpreting the word "State"—led the Court of Appeals for the First Circuit some 55 years ago to hold § 266 inapplicable to the laws of the Territory of Puerto Rico. Benedicto v. West India & Panama Tel. Co., 256 F. 417 (1919).

Congress, however, created the Commonwealth of Puerto Rico after Benedicto was decided. Following the Spanish-American War, Puerto Rico was ceded to this country in the Treaty of Paris, 30 Stat. 1754 (1898). A brief interlude of military control was followed by congressional enactment of a series of Organic Acts for the government of the island. Initially these enactments established a local governmental structure with high officials appointed by the President. These Acts also retained veto power in the President and Congress over local legislation. By 1950, however, pressures for greater autonomy led to congressional enactment of Pub. L. 600, 64 Stat. 319, which offered the people of Puerto Rico a compact whereby they might establish a government under their own constitution. Puerto Rico accepted the compact, and on July 3, 1952, Congress approved, with minor amendments, a constitution adopted by the Puerto Rican populace, 66 Stat. 327; see note accompanying 48 U. S. C. § 731d. Pursuant to that constitution the Commonwealth now "elects its Governor and legislature; appoints its judges, all cabinet officials, and lesser officials in the executive branch; sets its own educational policies; determines its own budget; and amends its own civil and criminal code." Leibowitz, The Applicability of Federal Law to the Commonwealth of Puerto Rico, 56 Geo. L. J. 219, 221 (1967); see 28 Dept. of State Bull. 584-589 (1953); Americana of Puerto Rico, Inc. v. Kaplus, 368 F.2d 431 (CA3 1966); Magruder, The Commonwealth Status of Puerto Rico, 15 U. Pitt. L. Rev. 1 (1953).

These significant changes in Puerto Rico's governmental structure formed the backdrop to Judge Magruder's observations in Mora v. Mejias, 206 F.2d 377 (CA1 1953):

Lower federal courts since 1953 have adopted this analysis and concluded that Puerto Rico is to be deemed "sovereign over matters not ruled by the Constitution" and thus a State within the policy of the Three-Judge Court Act. See Mora v. Mejias, 115 F.Supp. 610 (PR 1953);9 Marin v. University of Puerto Rico, 346 F.Supp. 470, 481 (PR 1972); Suarez v. Administrador del Deporte Hipico de Puerto Rico, 354 F.Supp. 320 (PR 1972). And in Wackenhut Corp. v. Aponte, 386 U.S. 268 (1967), we summarily affirmed the decision of a three-judge court for the District of Puerto Rico that had ordered abstention and said:

Although the question of Puerto Rico's status under 28 U. S. C. § 2281 was raised in neither the Jurisdictional Statement nor the Motion to Affirm in Wackenhut, and we do not normally feel ourselves bound by a sub silentio exercise of jurisdiction, see Hagans v. Lavine, 415 U.S. 528, 533-535, n. 5 (1974); United States v. More, 3 Cranch 159, 172 (1805), this Court has noted that in three-judge court cases, "where . . . the responsibility [is] on the courts to see that the three-judge rule [is] followed," unexplained action may take on added significance. Stainback v. Mo Hock Ke Lok Po, 336 U. S., at 379-380. This is particularly so, when as in Wackenhut, the opinion supporting the judgment over which we exercised appellate jurisdiction had expressed the view that abstention was appropriate for reasons of comity, an oft-repeated justification for the abstention doctrine, see, e. g., Railroad Comm'n of Texas v. Pullman Co., 312 U.S. 496, 500 (1941),10 as well as the principal underpinning of the Three-Judge Court Act. See Steffel v. Thompson, 415 U.S. 452, 465-466 (1974).

While still of the view that § 2281 is not "a measure of broad social policy to be construed with great liberality," Phillips v. United States, 312 U.S. 246, 251 (1941), we believe that the established federal judicial practice of treating enactments of the Commonwealth of Puerto Rico as "State statute[s]" for purposes of the Three-Judge Court Act, serves, and does not expand, the purposes of § 2281. We therefore hold that a three-judge court was properly convened under that statute,11 and that direct appeal to this Court was proper under 28 U. S. C. § 1253. Accordingly, we now turn to the merits.

II

Appellants challenge the District Court's holding that the appellee was denied due process of law by the omission from § 2512 (b), as it incorporates § 1722, of provisions for preseizure notice and hearing. They argue that seizure for purposes of forfeiture is one of those " `extraordinary situations' that justify postponing notice and opportunity for a hearing." Fuentes v. Shevin, 407 U. S., at 90; see Sniadach v. Family Finance Corp., 395 U.S. 337, 339 (1969); Boddie v. Connecticut, 401 U.S. 371, 378-379 (1971). We agree.12

In holding that lack of preseizure notice and hearing denied due process, the District Court relied primarily upon our decision in Fuentes v. Shevin, supra. Fuentes involved the validity of Florida and Pennsylvania replevin statutes permitting creditors to seize goods allegedly wrongfully detained. A writ of replevin could be obtained under the Florida statute upon the creditor's bare assertion to a court clerk that he was entitled to the property, and under the Pennsylvania statute, upon filing an affidavit fixing the value of the property, without alleging legal entitlement to the property. Fuentes held that the statutory procedures deprived debtors of their property without due process by failing to provide for hearings " `at a meaningful time.' " 407 U. S., at 80.

Fuentes reaffirmed, however, that, in limited circumstances, immediate seizure of a property interest, without an opportunity for prior hearing, is constitutionally permissible. Such circumstances are those in which

Thus, for example, due process is not denied when postponement of notice and hearing is necessary to protect the public from contaminated food, North American Storage Co. v. Chicago, 211 U.S. 306 (1908); from a bank failure, Coffin Bros. & Co. v. Bennett, 277 U.S. 29 (1928); or from misbranded drugs, Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594 (1950); or to aid the collection of taxes, Phillips v. Commissioner, 283 U.S. 589 (1931); or the war effort, United States v. Pfitsch, 256 U.S. 547 (1921).

The considerations that justified postponement of notice and hearing in those cases are present here. First, seizure under the Puerto Rican statutes serves significant governmental purposes: Seizure permits Puerto Rico to assert in rem jurisdiction over the property in order to conduct forfeiture proceedings,13 thereby fostering the public interest in preventing continued illicit use of the property and in enforcing criminal sanctions. Second, preseizure notice and hearing might frustrate the interests served by the statutes, since the property seized—as here, a yacht—will often be of a sort that could be removed to another jurisdiction, destroyed, or concealed, if advance warning of confiscation were given. And finally, unlike the situation in Fuentes, seizure is not initiated by self-interested private parties; rather, Commonwealth officials determine whether seizure is appropriate under the provisions of the Puerto Rican statutes.14 In these circumstances, we hold that this case presents an "extraordinary" situation in which postponement of notice and hearing until after seizure did not deny due process.15

III

Appellants next argue that the District Court erred in holding that the forfeiture statutes unconstitutionally authorized the taking for government use of innocent parties' property without just compensation. They urge that a long line of prior decisions of this Court establish the principle that statutory forfeiture schemes are not rendered unconstitutional because of their applicability to the property interests of innocents, and further that United States v. United States Coin & Currency, 401 U.S. 715 (1971), did not—contrary to the opinion of the District Court—overrule those prior precedents sub silentio. We agree. The historical background of forfeiture statutes in this country and this Court's prior decisions sustaining their constitutionality lead to that conclusion.

At common law the value of an inanimate object directly or indirectly causing the accidental death of a King's subject was forfeited to the Crown as a deodand.16 The origins of the deodand are traceable to Biblical17 and pre-Judeo-Christian practices, which reflected the view that the instrument of death was accused and that religious expiation was required. See O. Holmes, The Common Law, c. 1 (1881). The value of the instrument was forfeited to the King, in the belief that the King would provide the money for Masses to be said for the good of the dead man's soul, or insure that the deodand was put to charitable uses. 1 W. Blackstone, Commentaries *300.18 When application of the deodand to religious or eleemosynary purposes ceased, and the deodand became a source of Crown revenue, the institution was justified as a penalty for carelessness.19

Forfeiture also resulted at common law from conviction for felonies and treason. The convicted felon forfeited his chattels to the Crown and his lands escheated to his lord; the convicted traitor forfeited all of his property, real and personal, to the Crown. See 3 W. Holdsworth, History of English Law 68-71 (3d ed. 1927); 1 F. Pollock & F. Maitland, History of English Law 351 (2d ed. 1909). The basis for these forfeitures was that a breach of the criminal law was an offense to the King's peace, which was felt to justify denial of the right to own property. See 1 W. Blackstone, Commentaries *299.20

In addition, English Law provided for statutory forfeitures of offending objects used in violation of the customs and revenue laws—likely a product of the confluence and merger of the deodand tradition and the belief that the right to own property could be denied the wrongdoer. Statutory forfeitures were most often enforced under the in rem procedure utilized in the Court of Exchequer to forfeit the property of felons. See 3 W. Blackstone, Commentaries *261-262; C. J. Hendry Co. v. Moore, 318 U.S. 133, 137-138 (1943).

Deodands did not become part of the common-law tradition of this country. See Parker-Harris Co. v. Tate, 135 Tenn. 509, 188 S. W. 54 (1916). Nor has forfeiture of estates as a consequence of federal criminal conviction been permitted, see 18 U. S. C. § 3563; Rev. Stat. § 5326 (1874); 1 Stat. 117 (1790). Forfeiture of estates resulting from a conviction for treason has been constitutionally proscribed by Art. III, § 3, though forfeitures of estates for the lifetime of a traitor have been sanctioned, see Wallach v. Van Riswick, 92 U.S. 202 (1876). But "[l]ong before the adoption of the Constitution the common law courts in the Colonies—and later in the states during the period of Confederation—were exercising jurisdiction in rem in the enforcement of [English and local] forfeiture statutes," C. J. Hendry Co. v. Moore, supra, at 139, which provided for the forfeiture of commodities and vessels used in violations of customs and revenue laws. See id., at 145-148; Boyd v. United States, 116 U.S. 616, 623 (1886). And almost immediately after adoption of the Constitution, ships and cargoes involved in customs offenses were made subject to forfeiture under federal law,21 as were vessels used to deliver slaves to foreign countries,22 and somewhat later those used to deliver slaves to this country.23 The enactment of forfeiture statutes has not abated; contemporary federal and state forfeiture statutes reach virtually any type of property that might be used in the conduct of a criminal enterprise.

Despite this proliferation of forfeiture enactments, the innocence of the owner of property subject to forfeiture has almost uniformly been rejected as a defense. Thus, Mr. Justice Story observed in The Palmyra, 12 Wheat. 1 (1827), that a conviction for piracy was not a prerequisite to a proceeding to forfeit a ship allegedly engaged in piratical aggression in violation of a federal statute:

This rationale was relied upon to sustain the statutory forfeiture of a vessel found to have been engaged in piratical conduct where the innocence of the owner was "fully established." United States v. Brig Malek Adhel, 2 How. 210, 238 (1844). The vessel was "treated as the offender," without regard to the owner's conduct, "as the only adequate means of suppressing the offence or wrong, or insuring an indemnity to the injured party." Id., at 233.24

Dobbins's Distillery v. United States, 96 U.S. 395 (1878), is an illustration of how severely this principle has been applied. That case involved a lessee's violations of the revenue laws which led to the seizure of real and personal property used in connection with a distillery. The lessor's assertions of innocence were rejected as a defense to a federal statutory forfeiture of his entire property, for the offense "attached primarily to the distillery, and the real and personal property used in connection with the same, without any regard whatsoever to the personal misconduct or responsibility of the owner, beyond what necessarily arises from the fact that he leased the property to the distiller, and suffered it to be occupied and used by the lessee as a distillery." Id., at 401; see United States v. Stowell, 133 U.S. 1, 13-14 (1890).

Decisions reaching the same conclusion have continued into this century. In Goldsmith-Grant Co. v. United States, 254 U.S. 505 (1921), it was held that the federal tax-fraud forfeiture statute did not deprive an innocent owner of his property in violation of the Fifth Amendment. There, the claimant was a conditional vendor of a taxicab that had been used in the removal and concealment of distilled spirits upon which the federal tax was unpaid. Although recognizing that arguments against the application of the statute to cover an innocent owner were not without force, the Court rejected them, saying:

See also United States v. One Ford Coupe Automobile, 272 U.S. 321 (1926) (Brandeis, J.); General Motors Acceptance Corp. v. United States, 286 U.S. 49 (1932) (Cardozo, J.). In Van Oster v. Kansas, 272 U.S. 465 (1926), the Court upheld, against a Fourteenth Amendment attack, a forfeiture under state law of an innocent owner's interest in an automobile that he had entrusted to an alleged wrongdoer. Judicial inquiry into the guilt or innocence of the owner could be dispensed with, the Court held, because state lawmakers, in the exercise of the police power, were free to determine that certain uses of property were undesirable and then establish "a secondary defense against a forbidden use . . . ." Id., at 467.

Plainly, the Puerto Rican forfeiture statutes further the punitive and deterrent purposes that have been found sufficient to uphold, against constitutional challenge, the application of other forfeiture statutes to the property of innocents.25 Forfeiture of conveyances that have been used—and may be used again—in violation of the narcotics laws fosters the purposes served by the underlying criminal statutes, both by preventing further illicit use of the conveyance and by imposing an economic penalty, thereby rendering illegal behavior unprofitable. See, e. g., H. R. Rep. No. 1054, 76th Cong., 1st Sess. (1939); S. Rep. No. 926, 76th Cong., 1st Sess. (1939); H. R. Rep. No. 2751, 81st Cong., 2d Sess. (1950); S. Rep. No. 1755, 81st Cong., 2d Sess. (1950).26 To the extent that such forfeiture provisions are applied to lessors, bailors, or secured creditors who are innocent of any wrongdoing, confiscation may have the desirable effect of inducing them to exercise greater care in transferring possession of their property. Cf. United States v. One Ford Coach, 307 U.S. 219, 238-241 (1939) (DOUGLAS, J., dissenting).

Against the legitimate governmental interests served by the Puerto Rican statute and the long line of this Court's decisions which squarely collide with appellee's assertion of a constitutional violation, the District Court opposed our decision in United States v. United States Coin & Currency, 401 U.S. 715 (1971). This reliance was misplaced. In Coin & Currency, the Government claimed that the privilege against self-incrimination could not be asserted in a forfeiture proceeding under 26 U. S. C. § 7302 by one in possession of money seized from him when used in an illegal bookmaking operation. In the Government's view, the proceeding was not "criminal" because the forfeiture was authorized without regard to the guilt or innocence of the owner of the money. The Court's answer was that § 7302, read in conjunction with 19 U. S. C. § 1618, manifested a clear intention "to impose a penalty only upon those who [were] significantly involved in a criminal enterprise," 401 U. S., at 721-722, and in that circumstance the privilege could be asserted in the forfeiture proceeding by the person from whom the money was taken. Thus, Coin & Currency did not overrule prior decisions that sustained application to innocents of forfeiture statutes, like the Puerto Rican statutes, not limited in application to persons "significantly involved in a criminal enterprise."

This is not to say, however, that the "broad sweep" of forfeiture statutes remarked in Coin & Currency could not, in other circumstances, give rise to serious constitutional questions. Mr. Chief Justice Marshall intimated as much over a century and a half ago in observing that "a forfeiture can only be applied to those cases in which the means that are prescribed for the prevention of a forfeiture may be employed." Peisch v. Ware, 4 Cranch 347, 363 (1808). It therefore has been implied that it would be difficult to reject the constitutional claim of an owner whose property subjected to forfeiture had been taken from him without his privity or consent. See, id., at 364; Goldsmith-Grant Co. v. United States, 254 U. S., at 512; United States v. One Ford Coupe Automobile, 272 U. S., at 333; Van Oster v. Kansas, 272 U. S., at 467. Similarly, the same might be said of an owner who proved not only that he was uninvolved in and unaware of the wrongful activity, but also that he had done all that reasonably could be expected to prevent the proscribed use of his property;27 for, in that circumstance, it would be difficult to conclude that forfeiture served legitimate purposes and was not unduly oppressive. Cf. Armstrong v. United States, 364 U.S. 40, 49 (1960).

But in this case appellee voluntarily entrusted the lessees with possession of the yacht, and no allegation has been made or proof offered that the company did all that it reasonably could to avoid having its property put to an unlawful use. Cf. Goldblatt v. Town of Hempstead, 369 U.S. 590, 596 (1962). The judgment of the District Court is

Reversed.

MR. JUSTICE STEWART joins Parts I and II of the Court's opinion, but, for the reasons stated in the dissenting opinion of MR. JUSTICE DOUGLAS, he would hold that the forfeiture of property belonging to an innocent and nonnegligent owner violates the Fifth and Fourteenth Amendments.

MR. JUSTICE WHITE, with whom MR. JUSTICE POWELL joins, concurring.

I join the Court's opinion, and agree that there was no constitutional necessity under Fuentes v. Shevin, 407 U.S. 67 (1972), or any other case in this Court to accord the owner-lessor of the yacht a hearing in the circumstances of this case. I add, however, that the presence of important public interests which permits dispensing with a preseizure hearing in the instant case, is only one of the situations in which no prior hearing is required. See Mitchell v. W. T. Grant Co., ante, p. 600; Arnett v. Kennedy, ante, p. 134 (WHITE, J., concurring).

MR. JUSTICE DOUGLAS, dissenting in part.

While I agree that Puerto Rico is a State for purposes of the three-judge court jurisdiction, I dissent on the merits.

The discovery of marihuana on the yacht took place May 6, 1972. The seizure of the yacht took place on July 11, 1972—over two months later. In view of the long delay in making the seizure where is that "special need for very prompt action" which we emphasized in Fuentes v. Shevin, 407 U.S. 67, 91? The Court cites instances of exigent circumstances—seized poisoned food, dangerous drugs, failure of a bank, and the like. But they are inapt.

Fuentes v. Shevin, involved a contest between debtor and creditor and a resolution of private property rights not implicated in an important governmental purpose. Here important governmental purposes are involved. As to that type of case we said in Fuentes: "First, in each case, the seizure has been directly necessary to secure an important governmental or general public interest. Second, there has been a special need for very prompt action. Third, the State has kept strict control over its monopoly of legitimate force: the person initiating the seizure has been a government official responsible for determining, under the standards of a narrowly drawn statute, that it was necessary and justified in the particular instance. Thus, the Court has allowed summary seizure of property to collect the internal revenue of the United States, to meet the needs of a national war effort, to protect against the economic disaster of a bank failure, and to protect the public from misbranded drugs and contaminated food." Id., at 91-92.

Postponement of notice and hearing until after seizure of the vessel apparently was not needed here, as the District Court held. Yet after that two-month delay, forfeiture of the vessel is ordered without notice to the owner and without just compensation for the taking. On those premises this is the classic case of lack of procedural due process.

The owner on the record before us was wholly innocent of knowing that the lessee was using the vessel illegally. To analogize this case to the old cases of forfeiture of property of felons is peculiarly inappropriate. Nor is this a case where owner and lessee are "in cahoots" in a smuggling venture or negligent in any way. The law does provide for forfeitures of property even of the innocent. But as Mr. Chief Justice Marshall said in Peisch v. Ware, 4 Cranch 347, 365: "[T]he law is not understood to forfeit the property of owners or consignees, on account of the misconduct of mere strangers, over whom such owners or consignees could have no control."

The lessee of the vessel was, of course, no stranger. Here unlike United States v. One Ford Coach, 307 U.S. 219, 238-239 (DOUGLAS, J., dissenting), there is no suggestion that the lessee was a mere strawman for runners of drugs. Even where such ambiguous circumstances were present the Court refused to impose forfeiture of an auto running illegal whiskey and belonging to those who acted "in good faith and without negligence." Id., at 236.

The present case is one of extreme hardship. The District Court found that the owner "did not know that its property was being used for an illegal purpose and was completely innocent of the lessee's criminal act. After the seizure and within the time allowed by law, the Superintendent [of the Police] notified lessee. Plaintiff was never notified and, since lessee did not post bond, the yacht was forfeited to the Commonwealth of Puerto Rico. It was not until plaintiff attempted to recover possession of the yacht after lessee had defaulted in the rental payments that plaintiff learned of its forfeiture." 363 F.Supp. 1337, 1340. Moreover, the owner had included in the lease a prohibition against use of the yacht for an unlawful project.

If the yacht had been notoriously used in smuggling drugs, those who claim forfeiture might have equity on their side. But no such showing was made; and so far as we know only one marihuana cigarette was found on the yacht. We deal here with trivia where harsh judge-made law should be tempered with justice. I realize that the ancient law is founded on the fiction that the inanimate object itself is guilty of wrongdoing. United States v. United States Coin & Currency, 401 U.S. 715, 719-720. But that traditional forfeiture doctrine cannot at times be reconciled with the requirements of the Fifth Amendment. Id., at 721. Such a case is the present one.

Some forfeiture statutes are mandatory, title vesting in the State when the forfeiting act occurs. United States v. Stowell, 133 U.S. 1, 19. Others are conditional, forfeiture occurring only if and when the State follows prescribed procedures. One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 699. Some forfeiture statutes exclude from their scope, property used in violation of the law as to which the owner is not "a consenting party or privy." See 19 U. S. C. § 1594. Some provide for discretionary administrative or judicial relief from forfeiture if the forfeiture was incurred without willful negligence or without any intention on the part of the owner to violate the law, 19 U. S. C. § 1618, or if the owner had at no time any knowledge or reason to believe that the property was used in violation of specified laws, 18 U. S. C. § 3617 (b); United States v. One Ford Coach, 307 U.S. 219.

Puerto Rico, however, has no provision for mitigation in case the owner of the seized property is wholly innocent of any wrongdoing. And, as the Court says, these absolute, mandatory forfeiture procedures have been supported at least by much dicta in the cases.

But in my view, there was a taking of private property "for public use" under the Fifth Amendment, applied to the States by the Fourteenth, and compensation must be paid an innocent owner. Where the owner is in no way implicated in the illegal project, I see no way to avoid paying just compensation for property taken. I, therefore, would remand the case to the three-judge court for findings as to the innocence of the lessor of the yacht—whether the illegal use was of such magnitude or notoriety that the owner cannot be found faultless in remaining ignorant of its occurrence.

The law of deodands* was at one time as severe as the rule applied this day by the Court. See Law of Deodands, 34 Law Mag. 188-191 (1845). Its severity was tempered by juries who were sustained by the King's Bench, id., at 191. The "great moderation" of the jurors in light of "the moral innocence of the party incurring the penalty," id., at 190, is an example we should follow here. While the law of deodands does not obtain here (cf. Goldsmith-Grant Co. v. United States, 254 U.S. 505, 510-511; United States v. One Ford Coupe, 272 U.S. 321, 333), the quality of mercy is no stranger to our equity jurisdiction, Hecht Co. v. Bowles, 321 U.S. 321, 329-330; United States v. Wiltberger, 5 Wheat. 76, 95.