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tea, as forfeited, for having been unlawfully im- 1824. ported at the port of New-York, in the ship Onta-ale Chests of rio, on the 29th of June, 1819, from Canton, in Tea. China, as being that kind and denomination of teas commonly called bohea teas, and afterwards transported coastwise to Boston, in the original chests and packages, and there entered as bohea; and that, on such seizure and examination, according to law, the chests and packages were found to differ in their contents from the entries, and the teas contained in them to be of a different kind and quality of black teas, and not bohea teas, as represented in the entries. The claim interposed by T; H. Smith, stated, that the teas in question

a The 67th section of the collection act of 1799, ch. 128. upon which this information was founded, provides, “ that it shall be lawful for the collector, naval officer, or other officer of the customs, after entry made of any goods, wares or merchandise, on suspicion of fraud, to open and examine, in the presence of two or more reputable merchants, any package or packages thereof; and is, upon examination, they shall be found to agree with the enti' , the officer making such seizure and examination, shall cause the same to be repacked, and delivered to the owner or claimant forthwith ; and the expense of such examination shall be paid by the said collector or other officer, and allowed in the settlement of his accounts; but if any packages so examined, shall be found to differ in their contents from the entry, the goods, wares, or merchandise, contained in such package, or packages, shall be forfeited : Provided, that the said forfeiture shall not be incurred, if it shall be made appear, to the satisfaction of the collector and naval officer of the district where the same shall happen, if there be a naval officer; and if there be no naval officer, to the satisfaction of the said collector, or of the Court in which a prosecution for the forfeiture shall be had, that such difference proceeded from accident or mistake, and dot from an intention to defraud the revenue.”

1824. were imported and entered by him, at the port of

New-York, as bohea teas, and that they are of the 200 Chests of Tea. kind and denomination called bohea teas, and not

of a different kind or quality of teas. The District Court pronounced a decree of condemnation, upon the testimony taken in the cause, which was affirmed, pro forma, in the Circuit Court, upon appeal; and the cause was, thereupon, brought to this Court.

March 9th.

The cause was argued by Mr. Webster and Mr. D. B. Ogden, for the appellant, and by Mr. Blake, for the respondents.

On the part of the appellant, it was contended, that the examination and seizure authorized by the 67th section of the duty act of 1799, c. 128. are limited to the collector of the district, where the goods were originally entered, and the duties secured upon importation ; and that, consequently, the case made out by the libel was not within the purview of the act, even supposing the collector might, by his general authority, make a seizure, and assert the forfeiture in a libel properly framed for that purpose. The United States were concluded, by the entry and inspection of the teas, at the port of New-York, where the importation from a foreign port was made, and the duties paid and secured. Besides, the libel contains no allegation of an intention to defraud the revenue. By the terms of the statute, no forfeiture is incurred if the difference between the entry and the packages proceeded from accident and mistake, and not

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1824.

so Tea.

from an intention to defraud the revenue. The want of such an allegation must, therefore, be considered as a substantial defect in the libel. The counsel also minutely examined the evidence, and insisted that the statute meant to describe the different kinds of teas in ordinary commercial language, and not with scientific precision. The tea now in question, is the bohea of commerce, whatever might be its botanical designation, or its Chinese name.

For the respondents it was argued, that the construction of the 67th section of the act, which had been contended for by the claimant, would, if adopted by the Court, be fatal to the whole system of revenue laws. There was nothing in the terms of the section, or in other parts of the statute, which restricted it to the collector of the port and district where the original importation from abroad was made. On the contrary, the terms, “ a collector,” and “the collector," are used promiscuously throughout the act, where an authority is intended to be given to, or a duty imposed on, the collectors of the customs generally; and wherever it is intended to confine the authority or duty to the collector of any particular port, appropriate words are used for that purpose. It was altogether an erroneous supposition, that an entry of goods, brought coastwise from the collection district where they were originally imported to another, was not required by the revenue laws. On the contrary, whenever the value of such goods exceeds 400 dollars, and they are contained . Vol. IX.

55

1824. in the original packages, as imported, an entry is

required, upon their being transported from one 200 Chests oro Теа.

port to another, although that.precise term may not be used in the various revenue and navigation laws. All the formalities required by these acts were complied with on bringing these teas from the port of New-York to the port of Boston, and consequently an entry was made with the collector of the latter port, so as to authorize him to make the examination and seizure under the 67th section of the collection act. Nor was any allegation of an intention to defraud the revenue necèssary, since the libel pursues the language of the enacting clause of the act, by which the forfeiture is inflicted whenever the packages are found to differ in their contents from the entry; and the exemption from forfeiture, where the difference proceeds from accident or mistake, is contained in a separate proviso to the section, which is matter of defence for the claimant. By the act of April 16, 1816, c. 107. and by several preceding statutes, the first of which was enacted in 1789, a specific duty was imposed on “bohea tea." All these acts make a discrimination in terms, between bohea" and " souchong and all other black teas.” The Legislature must necessarily have had in view, in both cases, a certain commodity, known by those names respectively. Had this not been the fact, an ad valorem duty would long since have been imposed, in order to prevent the gross frauds upon the revenue, which must

a Act of Feb. 18, 1793, for enrolling and licensing ships and vessels to be employed in the .coasting trade, &c. c. 153. (viii.) s. 16, 17. 19.

1824. . an

Tea.

be the inevitable consequence of permitting such teas as those now in question to be imported as bohea. The same distinctive term is used in the British revenue laws, and is supported by the authority of various writers on commerce. It is exclusively applied to the common bohea tea, sometimes called moji or moee by the Chinese; and, consequently, the various instances of the mixtures of teas in China, which are spoken of by the witnesses, as being composed ordinarily of not, more than one third part of that species, and the residue of old souchong, congo, and others of the higher order of teas, and thus imported into this country under the name of bohea, must be regarded, in a legal point of view, as being an evasion of the several statutes on that subject.

Mr. Justice STÒRY delivered the opinion of the March 15th Court.

The two. hundred chests of tea in controversy in this suit, were imported into the city of NewYork, in the ship Ontario, from China, and entered there at the custom house, and the duties regularly secured as bohea.teas. They were afterwards transported coastwise to Boston; and upon examination there, under the direction of the col. lector of the district, they were seized as forfeited, under the collection act of the 2d of March, 1799, ch. 128. 8. 67. on account of their differing in de

a Stat. 43 Geo. II. c. 12. 24 Geo. III. c. 28. Milborne's Oriental Commerce, vol. ii. p. 521. Ree's Cyclopedid, art. Tea. Thea. Morrison's Chinese Dict. art. Tea.

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