« ПретходнаНастави »
Again, silks, when coming from beyond the Cape of Good Hope, are subject to duty; but those from Europe, with some exceptions, are not. Hence the former, by being landed and colored or stamped in Europe before reaching here, are believed to be often introduced free, contrary to my own opinion of the original design of Congress.
“ Several articles, also, are now imported from Europe, which have been adjudged by the courts to be free, because manufactures of silk; though, under their appropriate names, as "hose, gloves, millinery, and other descriptions of goods,' they were for several years regarded as liable to duty, and taxed accordingly.
“Manufactures of woollen and cotton are subject to a large duty; but of late, by mixing wool and cotton in fabrics with silk, they are often imported at a lower rate of duty, or entirely free, under judicial decisions, reversing the former usages (or decisions of the Department) in force.
“ Other material changes have occurred through these decisions, such as that sewing silk,' which still pays a duty, does not embrace some merchandise, though made of silk and used for sewing. Several alterations have likewise been adopted, exempting from the duties on woollen and cotton various new articles mixed with • worsted,' or unexpectedly considered by the courts and juries as 'worsted,' and hence pronounced to be FREE. Other goods have been relieved from the high' duty on ready-made clothing,' and subjected to only a lower rate of impost, under other names, though made up as articles of clothing, and ready to be worn. Uniform rules of construction on these subjects, which have prevailed since the laws passed, have thus in some cases been suddenly altered, and much money already in the Treasury has been refunded; and other duties, paid or secured, are liable to be remitted hereafter.
“ Several articles, also, must hereafter be entered FREE, which, it has been before supposed, were subject to duty; and others must be admitted at a lower rate than the previous usage, (under the decisions of the Department.]. In a few cases, only, can attempts be made to reverse the (judicial] decisions by appeals or writz of error, as the amount in controversy in each case is frequently too small, or the difficulty exists, at times, in the finding of the jury, when the general directions of the judge may have been unexceptionable. From these circumstances, the revenue has already suffered extensively within a few months; and the annual loss to the Customs, by all the decisions before referred to, is computed to equal at least two millions of dollars.
“All the details deemed useful on these points are embodied in the report of the Comptroller replying to my letter, and in other documents, copies of which are annexed. Whichever construction in these cases be, in the view of Congress, correct, whether that adopted by the courts, or that adopted by the Department, it is highly important to have a declaratory law passed, settling the rule clearly for the future in all doubtful cases. It seems also equally important to have such new provisions in respeci to the Tariff introduced, as shall protect more effectually the collection of those duties which Congress designed should be imposed for carrying on successfully the operations of the Government, and preserving inviolate the public faith,” &c., &c.
[I subjoin extracts of only four of the numerous other interesting papers included in the important communication by the President to Congress, of which the foregoing is a part. In that document these papers are marked alphabetically and numerically, as may be seen by the various references made to them in those subjoined. Those references are not disturbeil here, as they may be of service in examining the House document.) Report by the Comptroller to the Secretary of the Treasury.
“COMPTROLLER'S OFFICE, January 31st, 1840. “SIR: Your communication of the 25th instant, in reference to the operation on the Revenue of (JUDICIAL) DECISIONS ALTERING the con struction of the Tariff laws heretofore adopted by the Department, has received the earliest attention of this office.
“In order to present at one view the progress and extent of the changes referred to, I submit a copy of the report (A) from this office, dated the 17th January, 1839, with such additions in the form of notes as may show the further alterations effected by (judicial] decisions since that date, together with reports of the several cases, so far as they could be procured.
Agreeably to your request, I have caused to be prepared, and herewith submit, a specification (B) of the articles in regard to the duty on which the courts have changed the rule of construction heretofore prevailing, with such an estimate of the amount of revenue which has been and will be lost therehy, as the complicated nature of the subject, and the limited time allowed in its preparation, enable me to furnish.
“In compliance with your wish that I should state, in each case, what, in my opinion, should be enacted by Congress in order to avoid any misconstruction hereafter in these or other cases, and to secure the prompt collection of necessary means for carrying on the operations of the Government, I beg leave, referring to my report herewith for the necessary explanations and illustrations, to submit, with great deference, the frame of an act (C) which, in my opinion would best secure the objects in view of the Department, without disturbing the fair construction of existing laws, should it be the intention of Congress to pass a declaratory act only,” &c., &c.
“A.”—[ The Report above mentioned.] “Sir: I beg leave to submit the subjoined remarks in relation to the operation of the existing Revenue laws, and on the expediency of some further act of legislation explanatory of the instructions of Congress in regard to certain descriptions of goods.
“Since the period when the act of 20 March, 1833, entitled 'An act to modify the act of 14th July, 1832,' &c., went into operation, the difficulties presented by the various constructions given to the tariff laws had been greatly augmented. In August, of the past year, this office endeavored, after much inquiry and examination, to establish a uniformity of practice in the custom-houses, by a classification of some of the principal articles of commerce. A copy of the circular (dated the 17th August, 1838,) iysued on that occasion, is herewith submitted, (No. 1,) together with a copy of the opinion of the Attorney General of the United States, (No. 2,) affirmatory of the construction given to the laws in regard to manufactures of silk, or of which silk is the component material, of cheap value, coming from this side the Cape of Good Hope. Agreeably to these views, it was considered that, in addition to the several articles specially mentioned, all articles of millinery, hosiery, and ready-made clothing, (those classifications being distinctly made in the act of 14th July, 1832,) and mits, gloves, and bindings, (they being specially enumerated in the same act,). were liable to the charge of the respective rates of duty assigned them, notwithstanding the provision in the act of 20 March, 1833, excepting manufactures of silk, &c., from the payment of duty.'
"It having been, however, declared by the circuit court at New York, at October term, 1837, that “silk shirts and drawers, although they might be ready-made clothing,' were still exempt from the charge of duty,* [all] articles of a similar description were accordingly exempted from the payment of duty by instructions from this office in its circular of the 17th August last, (1838.)
By the same court, at its last term, suits were brought against the present collector of New York to recover back duties paid on silk hose.' On these trials the judges were divided in opinion, and the cases will be taken up to the Supreme Court.f “At the last term of the circuit court held at Boston the opinion of the court has been given in a suit brought against the collector, that
“ The letter of the district attorney dated the 4th January, 1838, and marked No. 3, as referred to in the above report, says: “During the present term of the circuit court a suit was tried, in which the question presented was, whether silk drawers and silk shirts were FREE FROM DUTY, under the 4th section of the act of 20 March, 1833, under the expression employed in that act, "manufactures of silk, or of which silk shall be the component material of chief value, coming from this side the Cape of Good Hope, except sewing silk, shall be free of duty”? Or whether the articles were subject to THE DUTY OF FIFTY PER CENT. ad valorem, as "ready-made clothing,” under the second clause of the 2d section of the act of 14th July, 1832? The court held, that although the articles in question might, in fact, be ready-male clothing, still, being a manufacture of silk, they were embraced in the provisions of the 4th section of the act of 2d March, 1833,”' &c.
This decision was obviously faully, because that description of manufacture called "ready-made clothing," being specifically provided for, cannot be supposed to have been included in the generic term "manufacturus," a class or category from which “ ready-made clothing” are entirely severed by the specific provision-no matter what materials they are made of.
7“ The question involved in this case, whether "silk hose” was liable to duty as "hosiery,” was decided in the negative at the January term, 1839, of the Supreme Court, and a circular, in consequence thereof, issued by this office on the 4th March following, a copy of which will be found among the papers submitted.” (No. 8.)
silk gloves' are exempt froin duty, together with all manufactures of silk, or of which silk is the component material of chief value, coming from this side the Cape of Good Hope, except sewing silk. This decision, if acquiesced in, would necessarily release from duty not only every article of ready-made clothing thus composed, in whole or in part, of silk, but also the articles specially mentioned in the laws as liable to duty, as umbrellas and parasols, of whatever material composed, lace veils, lace shawls or shaules,' and ' ornaments for head dress, caps for women, and millinery of all kinds, of whatever material composed. **
“In reference to the distinctive classifications of hosiery and ready-made clothing, I would here observe, that, at the last term of the circuit court held at New York, a suit was brought against the Collector to recover back the difference of duty chargeable on hosiery and readymale clothing, and paid on certain cotton woven shirts called Guernsey frocks, usually worn by seamen over their linen shiris, and cotton drawers, with waistband stitched to them with needle and thread,' and the court decided the article to be dutiable only as 'hosiery.'!
“With regard to WOOLLEN and worSTED manufactures, it has been declared, after full inquiry by this office, (Comptroller's circular, 12h August, 1833,) that, in mercantile parlance, none but a particular description of piece goods, such as bombazeites, calamancoes, &c., composed entirely of worsted or combed wool, had acquired the distinctive appellation of worsted stuff goods,' and, as such, were exempled from duty by the act of 20 March, 1833; in which view the Secretary of the Treasury concurred, and decided accordingly that worsteil shawls were not exempted from duty as worsted stuff goods.'
" In the suit, however, of Elliott vs. Swartwout, the Supreme Court have decided that shawls and suspenders composed of worsted and cotton are liable only to the cotton duty, the worsted material being considered exempt from duty; and in the circuit court at Baltimore it has been declared, at the last term, that carpet rugs, &c., of combed wool, or worsted and linen, are not liable to duty, although, as the district attorney writes, all the witnesses but one, and he was a carpet manufacturer, testified that worsted hearth rugs were not worsted stuff goods." (See opinion of the Attorney General, No. 5, and report of case No. 6.)
The conflicting provisions of the law levying a duty on " MANUFACTURES OF Flax,” and exempting from duty" bleached and unbleached linens, and linen cambrics,” have led to endless difficulties. This office had, as the result of much careful inquiry, in its circular of the 12th August, 1833, established the rule that, “ generally, all plain flaxen cloths, not colored, stained, dyed, striped, or checked," were to be classed as linens, “ bleached or unbleached ;” and the views of the Secretary of the Trcasury were communicated in a circular from this office dated 26th November, 1835, in these words:
“The principle which is to govern in the classification of linens having recently been submitted to the consideration of the Department, the Secretary of the Treasury gave the following direction on the subject, viz: 'That all linens dyed, stained, or colored, by any artificial means or process, whether during the manufacture of the articles, or subsequently, with a view of giving a finish, or to render them more merchantable, are liable to duty, as not coming under the denomination of bleached or unbleached linens. But when the stain or color is material, or imparted in rotting the hemp or flax, such linens are not deemed liable to duty. Upon the foregoing facts it will be the duty of the appraisers to decide from their own knowledge and experience, on inspection of the article itself, or from information, evidence, or chemical test, to be derived from any source.'
I can add, with confidence, that in very many instances it is totally impracticable to ascertain how or when a linen has been stained or colored; and that, although the APPRAISERS may be satisfied, it frequently occurs that courts and juries are not. In a suit, Gehan & Co. vs. Swartwout, in the circuit court at New York, October term, 1837, certain linens, the subject of suit, were declared by the court to be exempt from duty as bleached or unbleached linens,' although, as the district attorney informs the Department, the proof tended very much to establish that there had been coloring matter used in preparing the articles.' And, as if nothing formed of fax was to be retained in the list of manufactures of fax,' it had been already decided in the district court at New York, November, 1834, that linen cambric handkerchiefs, cut off anil hem-stitched,' were exempt from duty as linen cambrics. I
“For further remarks in regard to WORSTED and Linens, I beg to refer you to the report I had the honor to submit on the 23d of June last, (1838.).
"It must be obvious, from even this very brief and imperfect view of the subject, that, nntil some further legislation shall take place, explanatory of the intentions of Congress in respect to the descriptions of merchandise above adverted to, a want of uniformity in practice must necessarily exist at the several custom-houses, attended with consequent embarrassment, trouble, and dissatisfaction, and frequently accompanied by vexatious litigation, seldom, if ever, resulting in any advantage to the United States; that, in the mean time, the inexpediency, if not danger, may be necessarily incurred, of withholding considerable sums of money from the Treasury, to await the resulis of suits brought against the Collectors; and that, from the uncertainty attending the ultimate collection of imports on so great quantity of goods $0 unsettled in their revenue character, the Treasury Department cannot be in possession of the data at any time whereby io form accurate or probable estimates of the accruing revenue.
“Questions like the following are most frequently asked :
“Was that portion of the 4th section of the act of 23 March, 1833, exempting from duty manufactures of silk, or of which silk shall be the component material of chief value, coming from this side the Cape of Good Hope, except sewing silk,' meant only to supersede and supply that portion of the fifteenth paragraph of the 2d section of the act of 14th July, 1832, imposing a duty of five per centum upon all other manufactures of silk, or of which silk is a component part, except sewing silk,' and applying to piece goods only, leaving millinery, hosiery, and ready-made clothing, &c., still dutiable, I according to the opinion of the Attorney General? Or was it the intention to exempt from duty every manufacture whatever, of silk, or of which silk should be the component material of chief value, coming from this side of the Cape of Good Hope, except sewing silk, I agreeably to the opinion of Judge Story? And are the acts of 27th April, 1816, and 220 May, 1824, so far as regards silk lace veils and lace shawls or shades, repealed by the act of 21 March, 1833 ?
" Are the first and second paragraphs of the 20 sec. of the act of July 14th, 1832, to be understood to comprehend woollens only, thus confining the duty of fifly per centum, imposed on ready-made clothing, to woollen clothing only; and the duty of twenty-five per centum, imposed on mits, gloves, binding, and hosiery, to mits, gloves, binding and hosiery of woollen only? Or are ihe duties there imposed 10 be levied on ready-made clothing, hosiery, mits, gloves, and bindings, whatever may be the material of which they are composed, including silk? “ Hosiery. What is the meaning of the term? Is it
, in the opinion of Congress, to be confined in its application to stockings and socks? Or; in the language of the European manufacturer, to extend to drawers and shirts, or whatever article may be woven in the loom still called slocking-loom? And, if so, is it to be applied to articles which, after coming from the loom, receive additional work from the needle ?
“Manufactures of jaz.-What are the articles dutiable under this head, contradistinguished from bleached or unbleached linens? Are bleached and unbleached linens confined to piece goods? And, if so, are they confined to shirtings and sheatings, or do they comprehend every variety of manufacture of flax in the piece, whatever may be the texture or intended use of the article, and whether plain, colored, striped, or checked?
“Linen cambrics.-Are they understood to be piece goods, or does the term comprehend articles made from linen cambric, as handkerchiefs hem-stitched ?
" Ready-made clothing:- Is this term to be confined to articles made up by the taylor for men's wear? Or, if not, to what other articles does it apply, as worn by males or females?
"Millinery.- What is understood by this term? Is it confined to what the milliner makes up; or does it extend to what the milliner sells, being intended for women's wear? Does it include any articles worn or used by men? Is it confined to articles worn on any particular part of the body? Does it comprehend scarfs, shawls, handkerchiefs, &c.?
**This decision was affirmed, in principle, by that of the Supreme Court before mentioned.”
7"This decision has been repeated at the January term, 1840, of the circuit court at New York, in the case of Hale vs. Hoyt. There can be, then, no reason to anticipate a different result on any similar question before that tribunal.”
“It has not been within the power of the Treasury Department fully to contest the principles established by these decisions, as they depend essentially upon questions of fact, which are necessarily determined upon testimony taken from persons themselves directly interested, being imPORTERS OF SIMILAR FABRICS."
“ Worsted stuff goods.---By this term are piece goods only meant, composed wholly of combed wool, as worsted; and is combed wool chargeable with the same duty as carded wool, when entering into a manufacture, other than piece goods, of which it is the only material; or, are all worsteds free, except worsted yarn! I am, very respectfully, your obedient servani,
J. N. BARKER, Comptroller." “ Hon. LEVI WoODBURY, Secretary of the Treasury.”
(Atlorney General's Opinion.]
“ATTORNEY GENERAL's Office, September 8th, 1838. "Sir: I have examined the two questions submitted for my opinion in your letter of the 4th inst. The first is: • Has the act of the 20 March, 1833, entitled “an act to modify the act of July 14th, 1832, and all former acts,' by declaring that manufactures of silk, or of which silk shall be the component material of chief value, coming from this side of the Cape of Good Hope, except sewing silk, shall be admitted to entry free of duty,' repealed, in effect, those portions of the act of the 14th July, 1832, and of former acts, in which certain duties are imposed upon millinery, hosiery, and ready-madle clothing, without reference to material, when such articles are composed wholly or in part of silk
“In deciding upon this question it should be remarked, that, prior to the passage of the act of the 14th of July, 1832, Congress had imposed certain duties on articles of millinery, hosiery, and ready-made clothing, at a higher rate than those specified in the fifteenth clause of the 2d sec. of that act. Yet, under the act of 1832, the higher duties were collected upon millinery, hosiery, anu ready-made clothing; nor have I learned that any serious question was ever raised upon the subject.
Since the passage of the act of 1833, the same practice has prevailed, with slight variations, arising from the difficulty of classifying particular articles. The construction thus placed upon these acts immediately after their passage, and the acquiescence of the parties interested, and of Congress, furnish strong evidence that the construction was correct. Upon a review of all the acts upon the subject, and giving to them a reasonable interpretation, so as to carry into effect, and not defeat, the intention of the Legislature, I have come to the conclusion that millinery, hosiery, and ready-made clothing, of whatever material composed, are subject to duties; and that the laws imposing them, prior to the act of the 21 of March, 1833, are not repealed by that act.
* To illustrate my opinion practically I would say, when the mercantile community have given a name, appellation, or description to any article or articles of merchandise, and by that name, appellation, or description, Congress has imposed a certain duty on them, the duty is to be collected. * By pursuing this course, it seems to me, the Comptroller, in performing his duties of Commissioner of the Revenue, will act agreeably to the spirit of the various laws on the subject, and in accordance with the course hitherto pursued under them, and will avoid the dangerous practice of repealing laws by constructive implication.
“Your second question is: 'Can the Comptroller, in giving a construction to the Revenue laws, which, from former erroneous practice, may prove injurious to the commercial community if immediately acted on, legally suspend this operation, as construed by him, with a view of allowing the importers of goods time to countermand their orders for goods from abroad ?"
"My answer to this question is decidedly in the NEGATIVE. The duty of the Comptroller is to execute the Revenue laws. Neither he nor any other officer of the Government has the power to suspend the operation of an act of Congress, unless specially authorized to do so by the act itself, or some other law. I am, very respectfully, your obedient servant,
FELIX GRUNDY.” “Hon. Levi WOODBURY, Secretary of the Treasury.”
[Circular to Collectors, Naval Officers, and Surveyors.]
“ TREASURY DEPARTMENT, Comptroller's Office, March 4th, 1839. “The recent session of Congress having terminated without the passage of an act, proposed by this Department, explanatory of the various conflicting provisions of existing laws in regard to the classification of several descriptions of merchandise imported into the United States, and the Supreme Court of the United States having lately pronounced an opinion in respect to one of the principal species of goods, heretofore the subject of great diversity of opinion, it has been deemed expedient and proper by this office to avail itself of the occasion so to modify existing instructions as to make them conform to the julicial decision, in reference not only to the article of merchandise specially the subject of the recent suit, but to all those articles also which clearly come within the spirit of the law as expounded by the court.
“The Supreme Court has declared that silk hosiery is free from duty, under the act of 23 March, 1833.
“By the application of the principle established by the court it follows, as a necessary consequence, that mits, gloves, bindings, millinery, ready-made clothing, and all other manufactures of silk, or of which silk is the component material of chief value, coming from this side of the Cape of Good Hope, except sewing silk, are also exempt from duty..
" The opinion of the court being maintained, in part, upon the position that the second clause of the second section of the duty act of 1832, except only as it respects ready-made clothing, has exclusive reference to articles of wool, or of which wool is a component part, it follows, in accordance with this opinion, that mits, glores, and bindings, when composed wholly or in part of wool, are chargeable with the duty of 25 per centum, as specified in that section. When of other material, (except silk,) according io the material of which they are composedas leather, 30 per cent.; cotton, 25 per cent. Ready-made clothing, being separated from the general operation of the principle here applied, stands as an independent specification, subject to a duty of 50 per cent., whatever may be the fabric, [except silk;] and exempted from duty only when of silk, by the operation of the act of March, 1833.
" Your practice in future will be regulated by those opinions; all instructions from this Department, not consistent therewith, being necessarily superseded; and, in cases in which you have received duty, paid under protest, on any of the articles now declared exempt from the payment of duty, you will refund said duties to the owners of the goods.
(Signed,) J. N. BARKER, Comptroller." Before proceeding to the concluding remarks I propose to make on these conflictions between the Judicial Power and the Fiscal Department of the Government, I deem it proper to devote a passing notice to an erroneous inference that may be drawn from the last above quoted document. Although the Comptroller was correct in saying that Congress had adjourned without passing the explanatory act proposed by the Department, it appears to my mind very clear that Congress did, nevertheless, make every sufficient provision that could be desired to obviate the evils of litigation then annoying the Revenue from customs, by the 2d section of the act of March 3d, 1839, making appropriations for the civil and diplomatic expenses of the Government, in requirir.g" all money paid for duties, by law, or by the regulation of the Treasury Department, to be placed io the credit of the Treasurer of the United States, to be kept and disposed of as all other money; and shall not be held by collectors, or persons acting as such, to await any ascertainment of duties, or the result of any litigation in relation to the rate or amount of duties legally chargeable and collectable in any case where money is so paid; but, whenever it shall be shown to the satisfaction of the Secretary of the Treasury, that, in any case of unascertained duties, or duties paid under protest, more money has been paid to the collector, or person acting as such, than the law requires should have been paid, it shall be his duty to draw his warrant upon the Treasurer in favor of the person or persons entitled to the over-payment, directing the said Treasurer to refund the same out of any money in the Treasury not otherwise appropriated,” whereby the practice of instituting suits for the recovery of duties alleged to have been overpaid, under the regulations and decisions of the Secretary of the Treasury, was virtually annulled. That such, at least, was the construction which that section would bear, in the estimation of Congress, is clear from the act of the 26th of February, 1845, repealing that section, saying: “That nothing contained in the second section of the act entitled 'an act making appropriations for the civil and diplomatic expenses of thc Government for the year 1839,' shall take away, or be construed to take away, or impair, the right of any person or persons who have paid, or shall hereafter pay, money, as and for duties under protest, to any collector of the customs, or other person acting as such, in order to obtain goods, wares, or merchandise, imported by him or them, or on his or their account, which duties are not authorized or payable in part or in whole by law, to maintain an action et law against such collector, or other person acting as such, to ascertain and try the legality, and validity of such demand or payment for duties, and to have a right to trial by jury, touching the same, according to the due course of law. Nor shall anything contained in the second section of the act aforesaid be construed to authorize the Secretary of the Treasury to refund any duties paid under protest ; nor shall any action be maintained against any collector, to recover the amount of duties so paid under protest, unless the said protest was made in writing, and signed by the claimant at or before the payment of said duties, setting forth distinctly and specifically the grounds of objection to the payment thereof."
It is further obvious that Congress was deeply impressed, about that time, (that is, from 1838 to 1842,) with the importance of confiding the execution of the Tariff laws exclusively to the Fiscal Department, from the very positive and unequivocal terms of the 23 and 24th sections of the Tariff act of the 30th of August, 1842, and particularly the latter, which says: “It shall be the duty of all Collectors, and other officers of the Customs, to execute and carry into effeci all instructions of the Secretary of the Treasury, relative to the execution of the Revenue laws; and in case any difficulty shall arise as to the true construction or meaning of any part of such Revenue laws, the decision of the Secretary of the Treasury shall be conclusive and binding upon all such Collectors and other officers of the Custome." But the present incumbent of the Fiscal Department, the Hon. R. J. Walker, in adverting to this section of the act of 1842, in his circular of the 6th July, 1847, forbears to execute the broad and comprehensive authority thus conferred on the Department. In that circular he says: “ The regulations of the Department are made by Congress final and conclusive, upon all classes of appraisers, whether acting as such under an appointment from the President, from the Secretary of the Treasury, or from the Collector of the port. Were it otherwise, and merchant appraisers should not conform to the regulations of the Department, the rates of duties would vary in every port of the Union; and that clause of the Constitution, requiring that all duties shall be uniform throughout the United States,' would become a dead letter. The law would be construed in one way by merchant appraisers in one port, and differently in others; and if there was no authority to control their constructions of the law, which would be binding on all the ports, it would be impossible to carry into effect this clause of the Constitution. To prevent this difficulty, the provisions of the law just quoted were enacted ; and the decision of the Secretary of the Treasury ‘as to the true construction or meaning of any part of the Revenue laws was made conclusive and binding.? This construction of the Department must be binding upon all who perform any duties under these laws, from whatever source their appointment or authority may be derived; and from Buch decision there can be no appeal, except to the judicial powers provided by the Constitution. The Department, notwithstanding the broad language and comprehensive authority conferred upon it by Congress, feels bound to adopt the construction of the Revenue laws pronounced in solemn adjudications by the Supreme Court of the United States.”
There is certainly great wisdom in this forbearance of the Secretary of the Treasury to execute the broad language and comprehensive authority thus conferred on him, until Congress shall say, in so many specific words, that, in all such cases there shall be no appeal from the decision of the Fiscal Department to the Judicial Power, unless the goods be warehoused and withheld from sale "as duty paying goods,” until the decision of the suils respectively.
But why should there be an appeal, at all, in such cases to the Judiciary, from the decisions of the Executive, made up of the official judgment of the Secretary of the Treasury, whose act is virtually the act of the President, fortified by the opinion of their legal adviser, the Attorney General, all of whom are of co-ordinate standing and character with the Judiciary, and have the most indisputable ground of preference wherever they are the peculiar administrators of any particular description of laws. Moreover, such appeals in these cases are very impolitic, inexpedient, and vexatious, as regards the purposes of justice, being either unnecessary to their accomplishment, or subversive of them. When the judicial decisions affirm the previous decisions of the Fiscal Department, they are unnecessary; when they reverse them, they subvert the authority conferred on the Secretary of the Treasury and his legal adviser the Attorney General, in executing those laws under the direction of the President, and confer a bounty on the importers at the cost of the United States and the consumers of the goods. For, when duties are paid under protest, with the intention to institute suit to have the same refunded, the goods, on which such duties have been paid, are, in the course of trade, put on sale by the importers in the same manner as other duty-paying goods. They change hands, go into the retail market, and are finally consumed by the community at large at the prices of duty-paying goods; whereby the importers indemnify themselves of the duty they have paid on them, for the very simple reason that they would not be justified by prudence, were they to take off the amount of duty in anticipation of having it refunded under a verdict against the United States. Who, then, are benefited' by such verdicts? Who are benefited by ihe duty being collected in the first instance, and ultimately refunded? In every sense it enures to the sole benefit of the importers. For, in all such cases, the consumers pay the same for their purchases that they would do if the Treasury decisions had not been reversed; and the United States are saddled with the expense of the suits; whilst the importers-generally foreign merchants-pocket the proceeds of sales as “duty-paying goods,” and “the refunded duties” also ; the latter being an addition to the duplicate amount of duties which they had already received from the consumers-generally American citizens—who are thus taxed for the benefit of foreign importers and manufacturers. Will the American people object to a reformation of this special mischief in the administration of the Revenue laws, from a mistaken supposition that no branch of the Government can do justice but the judicial.-- whose instructions to jurors are, nevertheless, often countervailed in these cases by the sinister interests of local jurors and witnesses adverse to true justice, and the interests of the Government, and the community at large?
It can be easily conceived that I now leave this subject with a very different impression from that under which I took it up. I am satisfied, from my own inquiries in regard to it, that there are very few who have examined into it, except on merely occasional questions, and those rather superficially, or isolatedly, being commensurate only with the special occasion, without any view io a general survey of the whole ground, for the purpose of systematic and consistent adjustment of its parts. And I am equally convinced that there is scarcely a subject, coming within the constitutional range of legislation, that calls more imperiously for the profound consideration of statesmen, to enable them to make the requisite provisions for the complete vindication of justice and right between man and man in the social state, whether individually or in their corporate capacities, so that their reciprocal responsibilities be rendered perfect, and all exclusive privileges laid aside, before the judicial tribunals of the country ; and finally, the whole judicial power being, in detail, so classified and defined as to render collisions of jurisdiction impracticable between the delegated powers of the Federal Government and the residuary sovereignties of the several States. The omissions that exist in some respects, the want of uniformity in others, and the conflictions that are occasionally arising and continually liable to come up, between the complicated authorities of this Union, bothi State and Federal, local and general, are vastly more numerous, and in some cases, greatly more momentary, than many are aware of. To make a scale of these would be a pleasing task, and not without the promise of useful results; but such an undertaking must be deferred for a more convenient and appropriate occasion. Though all these are not confined within or reduced to the judicial power, those are the most mischievous which are held aloof from it. And yet, when they shall be resolved into the province of the Judiciary, the remedy may not be complete whilst they are without such order and discrimination as shall define the appropriate location and relative bearing of each component part of the great system of jurisprudence, both State and Federal.
POSTSCRIPT. Having, in the concluding paragraph of the Introduction, referred to a postscript at the end of the volume, for a due notice of the illusTRATIVE DESIGNs prefixed to this work, 1 have, upon further reflection, determined that it would be an act of supererogation to enter into a abored account of the several subjects therein embodied ; as the mere titles of the two plates, and the subjects more particularly specified in each, together with the great abundance of public documents and discussions, showing the desultory action of the Government thereon in all time, must afford a better illustration than can be conveyed in a few brief remarks. "To understand, then, that the chief object in these designs was to concentrate the subjects, so as to fix the attention, and give them a location and a name as great national objects, must suffice here.
(That the following may not be considered a very scanty Index for such a volume, it is deemed proper to make a few remarks upon it-
Whilst preparing an alphabetical Index of the various revenue subjects embraced in the foregoing pages, it struck me that it would be
That Division, relating to the details of decisions on doubtful rates of duty, and originally designed as the second part of this Index, being
ACCOUNTS of Revenue, receipts and disbursements, books for keeping...
of Balances, (transcripts of, for suit).
Also, see Duties, discriminating.
Paupers, deportations of.........
Also note at foot of first page of Table of Contents.
the great discretion devolved on them..
And notes marked (41,) (42.)
keeled, license of, and hospital tax of crew.....