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Navigation proper, (under Custom-house regulations) in time of peace.” Sec. 6. “ of the System of Com. merce and Navigation proper, (under Custom-house regulations, as modified) in time of war or contingent war.” Words cannot estimate the full interest of these subjects; and, with whatever ability and correctness they have been treated by the official Instructions, promiscuously presenting themselves through a period of
"Nothing is more injurious to all classes, but especially to our manufacturers, than the expansions, contractions, and fluctuations of the bank-paper system, vibrating with every considerable change of the public moneys held by them as depositories. This perilous and seductive bank-paper system opens temporarily, and beyond the wants of the country, a market here for foreign imports, not in exchange for exports, but for credit, the redemption of which drains the country of its specie, contracts the paper currency, forces, at a sacrifice, the sale of domestic fabrics, and depresses the industry of the whole country. Domestic manufactures require for iheir permanent and successful operation the basis of specie, checking vibrations and inflations of the paper system, confining our imports to the wants of the country, and preventing the temporary purchase of foreign goods for credit, and not for exports, which always results in disturbance of the money market and in injury to the country. If our manufacturers desire great advantages from the home market, it must be abundantly and permanently supplied with a large specie circulation, which alone can sustain that market for a number of years, and prevent those calamities which must follow an intlated paper currency. A home market for our manufactures, when based upon specie and low duties, is solid, permanent, and augmenting; but when founded upon paper credits, it is inflated one year only to be depressed the next, or some succeeding year--thus depriving the manufacturer of any well-assured and permanent domestic market. The bank deposite year, (1836,) when we were importing grain, contrasted with 1847—the year of divorce of the Government from banks-exhibits the delusive inflation of the one, with its succeeding disasters, and the solid prosperity of the other; resisting thus far, to a great extent, the revulsion in England, and proving the good effects of the union of low duties and the specie-receiving and specie-circulating Constitutional Treasury,” &c., &c.
(b) System of Low Duties, ad valorem, Secretary's Report, December, 1847. “The new tariff has now been in operation more than twelve months, and has greatly augmented the revenue and prosperity of the country. The nett revenue from duties, (see table NN,) during the twelve months ending 1st December, 1847, under the new tariff, is $31,300,000, being $8,528,596 more than was received during the twelve months preceding, under the tariff of 1842. The nett revenue of the first quarter of the first fiscal year, under the new tariff, was $11,106,257 41, whilst in the same quarter of the preceding year, under the tariff of 1842, the nett revenue was only $6,153,826 58. If the revenue for the three remaining quarters should equal in the average the first, then the nett revenue from duties during the first fiscal year of the new tariff' would be $44,425,029 64. If, however, the comparison is founded on all the quarterly returns for forty-eight years, (as far back as given quarterly in the Treasury records,) and the same proportion for the several quarters applied to the first quarter of this year, it would make its nett revenue $40,388,045, (per table C.) Although the ne:t revenue from duties already received, being $15,506,257 41 during the five months of this fiscal year, would seem to indicate its probable amount as not less than $35,000,000, yet it is estimated at $31,000,000 for the fiscal year ending 30th June, 1848, and $32,000,000 for the succeeding year, in view of the possible effects of the revulsion in Great Britain. Although our prosperity is ascribed by some to the famine there, as though Providence had made the advance of one country depend upon the calamities of another, yet it is certain that our trade with Great Britain must be greater in a series of years, when prosperity would enable her to buy more from us, (and especially cotton,) and at better prices, and sell us more in exchange, accompanied by an augmentation of revenue.
“In my last annual report, and that which preceded, it was proved that the home market was wholly inadequate for our vast agricultural products. We have long had for grain and provisions the undivided markets of our own people. But these are not sufficient; and in a single year we have, with abundance of food retained at home, supplied the world with an addition at once during the last year, as shown by table A A, of $41,332,282 in value of breadstuffs and provisions, bringing the value exported that year up to $65,906,273. Our manufacturers could not have consumed this surplus, or their non-consuming machines, which are substituted in their workshops for the labor of
If the energy of our own people can add $41,332,282 to the export and supply of our breadstuffs and provisions in a single year, what could they not add to such products, if they enjoyed free of duty the markets of the world? By table BB, it appears that the aug. mentation of our domestic exports, exclusive of specie, last year, compared with the preceding year, was $48,856,802, or upwards of 48 per cent.; and, at the same rate per cent. per annum of augmentation, wi uld amount in 1849, per table C C, to $329,959,993, or much greater than the domestic export from State to State. (See tables from 7 to 12, inclusive.) The future per centage of increase may not be so great; but our capacity for such increased production is proved to exist, and that we could furnish these exports far above the domestic demand, if they could be exchanged free of duty in the ports of all nations.
· The energetic American freeman can and does perform far more effective labor in a day than what is called by restrictionists the pauper labor of Europe; and therefore the employer here can pay more for a day's toil to our workingmen. Measured by the day, the wages here may be higher than in Europe, but measured by the work done on that day, there is but little difference; and, when all our capitalists (as some already have) shall find it to be their true interest, in addition to the wages paid to the American workman, to allow him, voluntarily, because it augments the profits of capital, a fair interest in those profits, and elevate him to the rank of a partner in the concern, we may then defy all competition. This is the same principle illustrated by uniform experience, proving that he who rents his farm, builds his house, sails his ships, or conducts any other business upon shares, realizes the largest return ; and that he who works by the job produces more in the same time than the laborer whose wages are paid by the day. The skill, energy, and industry, the interest and pride in success, the vigilance and perseverance that will be manifested by our intelligent workingmen, under such a system, will far more than refund to capital such reasonable participation in its profits, and enable such American establishments to supply all the nations of the world. The introduction of this system will be voluntary, because it is most just and beneficial to all parties. It is the participation of all our people in the Government that is one great cause of our prosperity, and the participation of our workingmen in the profits of our industrial establishments would exhibit similar results. Our whale and other fisheries present strong evidence of the success attending American industry, when our intelligent freemen-the workingmen of the concern-stimulated by a just participation in the profits, have driven from the most distant seas the whale-ships of most other nations, and nearly monopolized this pursuit. The intelligent workingmen of our country are far better prepared for the adoption of this truly republican system than those of any other nation; and this elevation of the toiling millions of America to a just participation in the profits of that capital which is made fruitful only by their industry, will yet enjoy as great a triumph as that unfeltered trade and unlaxed and unrestricted labor with which it ought to be, and certainly will yet be, proudly associated. Under this system, the laboring men, whilst they received the full wages heretofore allowed them, would also participate, to a reasonable extent, in the profis, as an addition to their wages, and a most powerful and certain stimulus to render their labor more productive, and thus increase, for the benefit of all concerned, the capitalists and workingmen, the profits of the establishment.
“ Indeed, the tables of the Treasury clearly prove that-whether we look at imports or exports, the revenue, the gain of specie, the tonnage coastwise or foreign, the coinage at the mint, or the export of breadstuffs and provisions—the balance is largely in favor of the lowdury periods.
“The Department has thus reviewed the books of the Treasury, and presented the results, constituting the record of a nation's history from the foundation of the Government down to the present period, in condemnation of the protective policy. These records show, as to imports and exports, revenue, the gain of specie, the tonnage foreign and coastwise, the rate of increase in each and all of these cases is greater under low than high duties. These records are not arguments merely, but ascertained results, amounting to mathematical proof that the nation's advance in wealth is most rapid under low duties ; thus sustaining the views of those great philosophic writers, unconnected with party, who, both in Europe and America, have uniformly maintained the same position.'
more than half a century, yet, by analyzing and redeeming them from that condition, their interest is greatly enhanced; and every one having a laudable curiosity, as well as those impelled by official duty, would desire to know what has transpired under these respective heads, in that period of time: also, those who have the leisure, and desire to do so, may by these means compare the Instructions with the Laws. I shall cite one
(c) The Mexican Tarijo - Secretary's Report, December, 1847. " The President of the United States has directed contributions to be levied in Mexico in every form that may be sanctioned by the the law of nations. These contributions consist, first, in diminishing the estimated expenditures, by obtaining, as far as practicable, supplies for the army in Mexico; second, by duties upon imports, as a military contribution i third, by enforcing the Mexican duty upon exports ; fourth, by directing the seizure and appropriation to the support of the war and the army, of all the internal revenues of Mexico, except transit duties, whether assessed by the General Government of Mexico, or liy any department, city, or town thereof. By the acts of September 2, 1769, and the 10th of May, 1800, it is the duty of this Department to report to Congress estimates of the probable amount that will be derived from all sources combined, in order that no larger loan may be asked or effected than would be requisite after deducting the amount thus estimated. The sum to be realized from these military contributions will depend upon future contingencies. If our armies are withdrawn from the capital and ports of Mexico, nothing would be received from such contributions. If they were withdrawn from the capital, retaining the ports, no safe transit being open for imports into the interior and to the rich and populous portion of the country, including the mining region, a very small revenue would be derived from this source, as shown by past experience-probably not exceeding a million per annum. If, however, the ports at present occupied by our forces be retained, and all the rest seized or blockaded, so as to prevent the carrying of imports into the interior through any other ports than those held by our forces; if the roads were then opened into the interior, through the city of Mexico and the mining region, and ihe route of commerce across the isthmus rendered secure, it is my conviction that the revenue from all these sources above specified ought not to be less, so far as the duties on exports and imports are concerned, than has heretofore been collected by the Government of Mexico.
“I have not been able to obtain any reliable statement of the amount of duties realized in Mexico upon exports ; if, however, it were fully collected upon all the exports of specie from Mexico, it would probably not amount to less than $1,000,000 per annum.
It is not known, however, that so large a sum as realized from this duty was ever recorded in the Custom-house returns of Mexico. Under these circumstances, it is extremely difficult to estimate the amount of duties which could be derived from this source, but they ought not to fall below $500,000 per annum. The receipts from duty on imports collected by Mexico have varied from six to twelve millions of dollars per annum ; and I think it ought not to be less with the ports and interior and the roads in our possession, and rendered secure for exports and imports. There are many reasons why it ought to be greater.
- The present duties are framed so as to yield the largest revenue; whereas the Mexican tariff was in the highest degree protective and prohibitory, the duties, even when the goods were admitted, being generally adverse to revenue. There were also sixty articles, the importation of which was prohibited altogether, among which were sugar, rice, cotton, boots and half-boots, coffee, nails of all kinds, leather of most kinds, flour, cotton-yarn and thread, soap of all kinds. common earthenware, lard, molasses, timber of all kinds, saddles of all kinds, cotton goods or textures, chiefly such as are made in the United States ; pork, fresh or salted, smoked or cured ; woollen or cotton blankets or counterpanes, shoes and slippers, wheat and grain of all kinds. The admission of the prohibited goods at reasonable rates, the change of the protective into revenue duties, and the abolition of the heavy transit charges, must of course increase imports and revenue, and greatly enlarge our trade with Mexico, bringing back specie in return for our goods imported there. No nation, in proportion to its wealth, can afford to import more than Mexico, because her great staple export, being specie, is sought by all nations in exchange for their goods imported there. Under our brave officers, the money will not be lost, as it was to a great extent by peculation under the Mexican Government, and the lower duties will, to a great extent, prevent smuggling. The duties, also, being collected on the goods imported from one Mexican port into another, will be an addition to the amount exacted by the Mexican Government.
“On the whole, 1 cannot believe that, under the circumstances and condition of things above suggested as the most favorable to augment these contributions, that the duties on imports, with all the ports, the roads, and interior in our military possession, would be less than it was under the Government of Mexico-especially under the guaranty already given, that in any treaty of peace it will, as announced, be provided that the goods imported should neither be contiscated nor subjected to any new duty by Mexico.
“ The internal revenue collected by the Mexican Government, as well as Departments, was about $13,000,000 per annum.
“I do not believe, however, that any very large portion of this revenue could be collected under our military system ; and I have no sufficient data upon which to base any reliable estimate as to these sources of revenue.
Under these circumstances, it is impossible to name any precise sum as that which probably would be derived from military contributions in Mexico. The more complete, however, the possession of the country by our troops, the larger would be the revenue.' Thus much I have thought it incumbent on me to say; and, without being able to fix any precise sum, it is my conviction that the revenues that may be derived from these various sources in Mexico would be very considerable, and augmenting from time to time.”
(d) The Warehousing System—Secretary's Report, December, 1847. “By the Warehousing act this Department is required to make such regulations, from time to time, as may be necessary to give full effect io the law, and to report to each succeeding session of Congress such regulations. Those heretofore made under the large and continuous discretionary powers granted by this act to the Department, were reported to Congress at the last session. After examining the practical working of the system under these regulations, it seemed to me susceptible of improvement; and, as it was entirely new here, I proceeded to collect information in regard to it in those countries where it had been for so many years in full and successful operation. Accordingly, Messrs. C. E. Walden and D. P. Barhydt, of the New York Custom-house, were sent by me to Europe last August, under specific and detailed instructions, (a copy of which is annexed,) to investigate the operation of the system in Great Britain and elsewhere in Europe, and report to me the results. The Warehousing system, as it exists in Great Britain, as also in France and Belgium, was investigated by them, the fullest information being kindly afforded to them by the gentlemen connected with those establishments abroad, and especially in Great Britain. All the details were obtained by them, and communicated in an able and voluminous report to me, with an appendix covering several volumes of general as well as specific and detailed information, together with all the forms for the transaction of business, and the most full and minute information as to the mode of conducting the same. The system was found to be the most perfect in Great Britain, where it had long been in successful operation, and cherished by all parties, whether for or against protection. It is one of the principal means by which Great Britain has built up her commerce and navigation, extended the market for her fabrics, and placed under her control for so many years the exchanges and trade of the world. She has thus made London the great depôt, where not only all her own fabrics could be purchased, but also assorted cargoes of the products and fabrics of all other nations. According to the report of these gentlemen, the value of the goods of all kinds in warehouse in Great Britain is $387,200,000. The buildings, docks, and structures erected under free competition, almost exclusively by private enterprise, for the convenient storage of these goods in London, is estimated to have cost $40,000,000. Great as was the importance attached by this Department to the introduction here of the Warehousing system, and earnest as was the recommendation for it in my first annual report, the results, as ascertained in England, surpass my highest expectations. There it is regarded by their intelligent manufacturers as among the most important means of bringing customers to their own doors to purchase assorted cargoes, including their own manufactures.
It is thus Great Britain seeks for the products of all her industry the markets of the world; and this is what we must do, if we would compete with her successfully for those markets for the products of all our industry, including manufactures. The report of Messrs. Walden and Barhydt has been very recently made to me, and is herewith communicated to Congress, retaining for reference the volumi
example from Section 1, in relation to Marine Papers, from which it may be seen how an apparently trivial circumstance, of substituting a single word or two in an instruction, (probably by a clerical error,) can pro. duce a mischief of the greatest consequence, through a lapse of more than fifty years, without detection, but which in all likelihood would have been early arrested, as likewise all cases of actual misconstruction, had the official instructions been, from the beginning, required to be reported to Congress yearly. The Comptroller's Circular of the 28th December, 1793, transmitting to officers of the Customs “Explanations and Forms of Official Documents in relation to the acts concerning the Registering, Recording, Enrolling, and Licensing Ships and Vessels,” clearly distinguishes the descriptions of vessels that are entitled to receive certificates of registry, certificates of record, and certificates of enrolment, according to their ownership, vocation, &c., &c., explicitly stating that certificates of registry are to be issued to American vessels engaged in the foreign trade, and certificates of enrolment to be issued to American vessels engaged in the coasting trade, or in the fisheries; under which latter class of certificates alone (except for vessels under 20 tons burden) annual licenses are to be issued, designating the vocation, whether the coasting trade, or the particular fishery to be pursued—explaining, at the same time, in said Circular, and in great detail, the regulations for the coasting trade. These Marine Papers being intended (among other objects) to facilitate the estimates of tonnage engaged in one or another trade, the Instructions, in pursuance of law, declare that they cannot be substituted for one another, without an avowed purpose of changing their vocation accordingly, and enter at large into the proper details to govern Collectors, Naval Officers, and Surveyors, in the premises. Nevertheless, in the short period of eight or nine months thereafter, the Comptroller, in the second and third paragraphs of his Circular of the 29th August, 1794, says to these officers, that “a vessel employed in the coasting trade or fisheries," "finding herself without a license in force,” and “in a District not her own, it shall be lawful aud necessary that her enrolment and expired license be surrendered to the Collector of the District where she may happen to be, and that she take out a temporary certificate of registry, with which to proceed on her voyage.” Thus were certificates of registry (probably by a clerical error) confounded with enrolments and licenses at that early day, but with which they are entirely incompatible, as may be seen in the 3d section of the act of the 18th February, 1793, the very section quoted by this Circular to justify the error it had fallen into. The consequence of this was, that the statistics of tonnage engaged in the coasting trade, and in the whale and cod fisheries, as well as in the foreign trade, must have been falsified thereafter, to the extent of the expiration of the licenses of enrolled vessels happening to exist on their arrival in some port other than their own, where they are required by this Circular to take out temporary registers, instead of temporary licences, as the Law and the Circular of 1793 inculcated. Nor was this error ever redeeined; but it was reiterated several times thereaster, by quoting the Circular of 1794, instead of recurring to that of 1793, until at length a judicial decision of the District Court of the United States, sitting at Newport, June term, 1838, in the case of the UNITED States vs. William ROGERS AND OTHEKS, annulled the nationality of a whaling vessel and the citizenship of the whole crew, discharging them of a prosecution for the crime of MUTINY, as being irresponsible to the laws of the United States, because of the error or informality in having a register instead of an enrolment and license, for the vocation of whaling in which she was engaged. And this further resulted in a law, passed at the next session of Congress, (acı 4th April, 1840,) which legalized the registers already so issued to whaling vessels, and actually substituted registers for enrolments and licenses thereafter to that class of fishing vessels, instead of merely exonerating and granting relief to the parties, from all barm or legal disabilities and forfeit. ures incurred under this wide-epread and protracted error, and requiring the same to be forth with corrected, and the rightful operation of the Registry and the Enrolment act to be reinstated. How far this error has been
nous appendices in the Depariment, subject, however, at all times, to the call of Congress. At the earliest practicable period, I will make such further regulations as are authorized by the powers delegated to me by the 5th section of the Warehousing act, and will report the same to Congress The American manufacturer, the farmer, and planter, in enlarged markets at home and abroad, and in the sale of their products and fabrics to complete assortments, will derive the greatest advantage from the system ; whilst the merchant and those concerned in navigation will find an increased business and augmenting profits, property in our warehousing cities will be rendered more valuable, and every branch of industry stimulated and improved. A commercial nation without warehousing accommodations is like a merchant without a storehouse; and no nation can enter upon the field of fair and open competition with other countries without such a system.
“Annexed is a table (marked L L) containing the value and description of foreign goods in warehouse, at the close of the last quarter, in the several ports of the Union.”
the insidious and unobserved means of falsifying the statistics of tonnage actually employed in the different vocations of our foreign trade, coasting trade, and fisheries of different denominations—whaling, cod, and mackerel--may be a matter of vague conjecture, except by resorting to a specific calculation from the returns of Marine Papers (issued and cancelled) in the Register's office—to which end the files would be incompetent, except for a few years back. And how far the said consequences, in regard to substituting temporary registers for enrolments and expired licenses of coasting, cod-fishing, and mackerel-fishing vessels, under similar cir. cumstances, continue to operate, in falsifying the statistics of tonnage actually so employed, is equally involved in obscurity, there being no legal provision as yet authorizing the registry of such vessels. *
It would appear that, except for the above or some such scrutinizing analysis and comparison of the laws, the instructions, and the decisions on this subject, the real cause of this extended mischief would probably never have been pointed out. As some evidence of this, on examining the important Executive document No. 35, 1st session of the 26th Congress, vol. 2, being a message from the President, dated December 17th, 1839, transmitting a report from the Secretary of the Treasury upon the subject of “ protection of American vessels engaged in the whale fisheries," it appears that neither the President, the Secretary of the Treasury, the Comptroller, nor the judges, the counsel pro or con, or the defendants in the case above mentioned, had any knowledge or suspicion of the originai cause of this misapplication of registers to whaling vessels. In the Treasury Circular to Collectors of the Customs, dated June 6ih, 1839, embraced in that document, the Comptroller says: “From the results of several trials in the courts of the United States, it appears that American vessels sailing under registers, and without being enrolled or licensed, have, in violation of law, been for many years engaged in the whale fisheries." The Circular proceeds: “On full examination of the records of this Department, it is evident that this course has been adopted without its sanction." On the contrary, it was not only sanctioned, but ordered, in certain cases, by the instructions of the Comptroller, dated the 29th August, 1794, and reiterated from time to time, as shown in the text. But it would further appear, from the petitions and memorials presented in the premises, that the substitution of registers, in the place of enrolments and expired licenses of whaling vessels, was not the only source of this perverted administration of the statutes of 1792 and 1793. To this purport, the memorial addressed to the President by persons engaged in the whale fisheries, dated at New Bedford, the 21st June, 1839, and included in the said documert, remarked that the practice of furnishing ships employed in the whale fishery registers, and the usual papers accompanying the same, was commenced before any of your memorialists were engaged in the business, and we believe has continued for more than forty years; we are, therefore, unable to state the causes which led to its adoption, but we cannot doubt they were such as at the time were considered by the Government or its officers sufficient to warrant the same, &c. And they further state, that “the number of such vessels (on whaling voyages) now absent with registers, were not less than 300, and the number of their crews 7,500 men :" thus comprising nearly the whole whaling marine of the United States existing at that time; whereby it would seem to be very probable that the statute of 1732, for registering and recording vessels, and that of 1793, for enrolling and licensing vessels, had never entirely, or even in any considerable degree, in regard to whaling vessels, taken the place of the act of the 1st September, 1789, for registering and clearing vessels, which they repealed ; but that the said act of the first session of the first Congress, which authorized the registry of whaling vessels, was continued to be executed by Collectors in issuing registers to whaling vessels, notwithstanding the statutes of 1792 and 1793.
In regard to the fines, penalties, and forfeitures incurred by this immense fleet of whaling vessels sailing under registers, the Comptroller, in his Circular of the 22d June, 1839, says: “Whatever may have been the opinions of this Department, from time to time expressed, on special cases not involving the questions now at issue, or the inferences drawn from those opinions, or however it may be presumed to have acquiesced, during former years, in an erroneous practice, introduced and extended so silently and gradually as at no time to excite its special notice, it cannot now, when its attention is called to the subject by a judicial decision, hesitate to sustain the officers of the Customs in carrying out the clear and explicit construction of the law, as given by Mr. Justice Story, until Congress thinks proper to amend it." To which the following, from the aforesaid memorial, may be regarded as an unanswerable rebutter, showing that the memorialists should not be punished for the possession of marine papers placed in their hands, not of their choice or desire, but by the error of officers of the Government. They say: " It has ever been the wish of your memorialists to comply with the laws; if they have not, we conceive the error to have been as justly attributable to the Government officers as to the ship owners, at the time it (the practice of issuing registers to whaling vessels) originated.
We have never insisted on having registers for our vessels, but have taken such papers as the Coilectors have given us, when requested to clear our vessels on whaling voyages, and have always received a clearance from the Custom-house, in which it was expressed that the vessels were bound on such voyages, clearly evincing that the Government officers conceived that said vessels were legally authorized to engage in their hazardous undertaking,”' &c. Some faint conception may be formed of the inconvenience and distress that was now likely to be visited upon the owners, the officers, and the crews of whaling vessels, by enforcing the penalties and forfeitures innocently incurred by them for no fault of their own, but in consequence of errors committed by officers of Customs, and acquiesced in, if not originated by, the Treasury Department as early as 1794, if we contemplate the vast amount of shipping then absent on whaling voyages, with registers erroneously issued instead of enro'ments and licenses, and daily returning in our ports.
Bui, of those evil consequences, which have resulted from this particular instance of remissness in the execution of the revenue laws, that just described is far from being the most disastrous and vital in its bearings. The tendency, nay, the inevitable consequence of the judicial decision given in the aforesaid document, in every case of mutiny, or of collision, of our whaling vessels sailing under registers, that might have occurred with the vessels of foreign nations, or among themselves, would inevitably have been without redress of any sort. In that document the case is, in substance, thus stated: “At the trial of the seamen belonging to the brig Troy, of Bristol, Rhode Island, (June lerm, 1838, at Newport,) for an endeavor to commit a revolt, Judge Story said: "I am unable to persuade myself that the present indictment is maintainable, under the circumstances. The act of 1835, chapter 40, provides that, if any one or more of the crew of an American ship or vessel on the high seas, &c., shall endeavor to make a revolt,' he and they shall, on conviction, be punished as provided for in the act. To bring the case within the statute, the voyage for which the seamen are shipped must be a lawful one [by no means ;) and they must at the time be of the crew of an Anerican ship or vessel, (and so they were ;) and, of course there must exist a lawful relation between them and the master, (so there did, as citizens of the United States, answerable for crime, though not as enjoying the privileges of a whaling vessel, which a register could not grant.). The statute of 1793, chapter 52, section 1, enacts that such ships as are enrolled and licensed, according to the provisions of that act, and none others, shall be deemed ships or vessels of the United States, entitled to the privileges of ships engaged in the coasting trade or fisheries, (not that they shall not be deemed ships or vessels of the United States, but, as vessels of the United States, they shall not be entitled to the privileges of ships engaged in the coasting trade or fisheries ;) and the whale fisheries, are expressly within ihe purview of the act, as is evidently seen in ihe form of the license prescribed by the 4th
section,' &c. My opinion, therefore, is, thal this ship cannot be deemed an American ship, within the sense of the 3d section of the statute of 1835, chapter 40, (on the contrary, an American ship within the meaning of that section for the punishment of mutiny,) on which this indictment is founded, and the crew are not the crew of such an American ship or vessel as is contemplated by the act. On this ground, the indictment would fail upon the facts,” &c. “ The District Judge concurred in opinion, that the facts did not support the indictment, and thereupon the District Attorney entered a nolle prosequi.”
The common sense remark upon the whole of the proceeding in the above case is, that it “ denationalizes” all the vessels, three hundred in number, thus engaged in the whale fisheries under illegal registers—that is, declares that they are not American vessels-which opinion arises from a grammatical misconstruction of that provision of the statute of 1793, section 1, respecting the enrolling and licensing ships and
Chapter III, gives (in ten Sections, and a few smaller divisions,) "The System OF REVENUE PROFER, arising from Duties on Imports, (specific or ad valorem, with superadded discriminating rates, partial abatements thereof, and refunding, on various accounts,) tonnage duties, light inoney, storage receipts, proceeds of unclaimed merchandise sold, passport and clearance fees, hospital tax,”' &c., &c.; with certain PRELIMINARIES to the estimate, the levying, and the collection of said duties--consisting of Instructions and regulations for the observance of Collectors, in ascertaining the exchange value of foreign currency, incident to estimating the value of invoices and the rates of duty thereon; Instructions to Consuls and Commercial agents, also respecting the exchange value of foreign currency, their authentication of invoices, and giving other information in inatters connected with American commerce within their respective consulates; Instructions to Collectors, respecting the deposite of goods in public stores, on various accounts, for duties, for re-exportation for drawbacks, for the reduction of duties, to defer payment of duties, or for want of invoices, or as unclaimed merchandise, &c., &c., together with the forms of books and accounts required to be kept by Collectors, Naval Officers, Surveyors, and Inspectors of the Customs.
Passing over the complicated and abiding interests, in general, of the pregnant subjects of this Chapter, replete as it is with instructions oft reiterated, sometimes variant or contradictory, and irregularly executed by officers of the Customs, I shall barely advert to the insufficiency of the two issues of forms prescribed for keeping the books and rendering the accounts of the Customs, to keep pace with the instability of the laws requiring a more frequent modification of them; and then give a statement of the neglects to keep those books at all.
From these archives it appears, that there have been but two editions of the forms for keeping the books, and rendering the accounts of the Customs to the Treasury, issued from 1789 to the present time, notwithstanding the fluctuations incident to the Revenue Laws would seem to require a more frequent modification of them. The first edition of those forms was prepared by the Comptroller, and transmitted, with Instructions 10 Collectors, by Circular of the 1st December, 1789, in pursuance of the act of 20 September, 1789, establishing the Treasury Department. Though there is not a copy of that kody of forms now in the Department, the evidence of their inaptitude to keep pace with the instability of the Laws from that time to 1821 is afforded by the Comptroller's Circular of the 22d August of that year, when a second edition, with suitable modifications, was issued, making that inaptitude to present use an argument for preparing the new set of forms-say. ing, that “those forms had been observed from that period, (December, 1789,) so far as the alterations made by the several Revenue laws subsequently passed would permit them to apply.” Here, then, is not only an authentic declaration of the instability of the forms presented for keeping the books and making returns of Custom-house accounts, varying more or less under each Revenue law, but an implied avowal that those forms must at length have been involved in considerable confusion by repeated alterations, amendments, and partial substitutes, through that long period, calling, no doubt, for a corrected and uniform edition, adapted to the existing wants of the Customs at short intervals, long before they actually were so revised and reissued. Accordingly, about this time an entirely new set of Custom-house forms was prepared, with modifications and additions, printed for the use and observance of Collectors and others, (dated 31st July, 1821,) "conformably to the Laws then in force,” as we are informed by the aforesaid Circular of the 22d August thereafter, transmitting a copy of said forms, &c., to eight Collectors only. The statements of the third paragraph of the said Circular of August, 1821, are too instructive on this subject not to quote them here. “Practical experience, however, having proved that those forms, (of 1789,) thus prescribed for the Collectors,
vessels of the United States ; saying, “none others shall be deemed ships or vessels of the United States, entitled to the privileges of ships engaged in the coasting trade or fisheries.". Now, in my conception, the grammatical and true construction of this passage requires that the first or second clauses or members be taken in conneciion, the latter qualitying the former as to the negation of privileges only to such American vessels, to give forcible application of which negation of privileges, ihe former was introduced (though redundant or tortologous in sense, American vessels being the only ones subject to this restriction) merely to inhibit the privileges of fishing and trading under erroneous marine papers. This true grammatical construction need not be further enforced by looking to the possible consequences of such a general denationalization of that imniense fleet, by supposing foreign powers were to lay violent hands on those vessels, and imprrss or maltreat their crews. Would the United States submit to such outrage, because they were not ships of the United States. Surely not: they would be regarded as entitled to the protection of their country, notwithstanding the forfeiture of the privileges of fishing and trading under erroneous papers. Their right to protection would be based on bigher grounds than nalionality, according to the very registries them selves, and a thousand other evidences, living, oral, and of record, that ihey were American vessels.