In a libel of information under the sixty-seventh section of the
Collection Act of 1796, c. 128, against goods on account of their
differing in description from the contents of the entry, it is not
necessary that it should allege an intention to defraud the
revenue.
A question of fact as to the rate of duties payable upon certain
teas, imported as bohea. That term is used in the duty act in its
known commercial sense, and the bohea tea of commerce is not
usually a distinct and simple substance, but is a compound, made up
in China of various kinds of the lowest priced black teas. But by
the duty acts it is liable to the same specific duty, without
regard to the difference of quality and price.
This was a libel of information filed in the Circuit Court of
Massachusetts against two hundred chests of tea alleging that on 8
September, 1819, the collector of the customs for the port of
Boston seized at that port the said chests of
Page 22 U. S. 431
tea as forfeited for having been unlawfully imported at the port
of New York in the ship
Ontario on 29 June, 1819, from
Canton, in 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
Page 22 U. S. 432
were imported and entered by him at the port of New York as
bohea teas and that they are of the 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.
Page 22 U. S. 435
MR. JUSTICE STORY delivered the opinion of the Court.
The two hundred chests of tea in controversy in this suit were
imported into the City of New York 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 collector of the district, they were seized as
forfeited under the Collection Act of 2 March, 1799, ch. 128, s.
67, on account of their differing in description
Page 22 U. S. 436
from the contents of the entry. The libel states the facts
specially, but contains no allegation of an intention to defraud
the revenue. Upon this state of the case, the libel is assailed for
a supposed defect arising from the absence of such an allegation.
But we think this objection cannot be sustained. The libel follows
the language of the enacting clause of the act, which inflicts the
forfeiture, and the exemption from forfeiture when the collector or
the court shall be satisfied that the difference between the entry
and the packages "proceeded from accident or mistake, and not from
an intention to defraud the revenue," being found in a separate
proviso, is properly matter of defense, to be asserted and proved
by the claimant, and is not, according to the course of
adjudications in this Court, essential to the structure of the
libel itself. This objection, then, may be dismissed without
further observation.
Another question of more serious importance is whether the
examination and seizure authorized by the 67th section of the act
are not limited to the collector of the district where the goods
were originally entered and the duties secured, upon importation,
and so the case made by the libel is not within the purview of the
act, whatever might be the authority of the collector to seize for
forfeitures generally, and to assert the claim in a libel properly
framed for such a purpose. The decision of this question would
require a very minute and critical examination of the whole revenue
and coasting acts, and as the Court can satisfactorily
Page 22 U. S. 437
dispose of the cause upon the merits, in point of fact it is
deemed unnecessary to institute so laborious an inquiry.
The claim admits that the teas were imported and entered as
bohea teas, and asserts that they are of the kind and denomination
called bohea teas, and not of a different kind or quality of teas,
and this forms the main point in controversy between the parties.
One of the earliest acts of Congress, the act of 20 July, 1789, ch.
2, imposes duties on teas in the following words:
"On bohea tea, per pound, six cents; on all souchong or other
black teas, per pound, ten cents; on all hyson teas, per pound,
twenty cents; on all other green teas, per pound, twelve
cents."
The Act of 10 August, 1790, ch. 39, varied the duties, but
retained the same descriptions. The Act of 29 January, 1795, ch.
82, declared that "teas commonly called imperial, gunpowder, or
gomee," should "pay the same duties as hyson teas." The Act of 3
March, 1797, ch. 64, laid an additional duty of two cents "upon all
bohea tea." And the Act of 27 April, 1816, ch. 107, under which
this cargo was imported, levies duties on "bohea, twelve cents per
pound; souchong and other black, twenty-five cents per pound;
imperial, gunpowder, and gomee, fifty cents per pound; hyson, and
young hyson, forty cents per pound; hyson skin, and other green,
twenty-eight cents per pound." The legislation of Congress here
detailed exhibits a progressive discrimination in the kinds of
green teas, but leaves
Page 22 U. S. 438
the black teas with no other specific discrimination than that
of bohea and souchong.
The argument on behalf of the United States is that the two
hundred chests of tea, now in controversy are in reality simple
congo tea, and not bohea; that the latter is a pure unmixed tea,
entirely distinct from congo, and known in China by an appropriate
name; that it is to this pure and unmixed bohea tea, that the
successive acts of Congress refer, and not to any other mixed tea,
though known by the common denomination of bohea. If we were to
advert to scientific classifications, for our guide on the present
occasion, it is most manifest, from the works cited at the bar,
that bohea is a generic term, including under it all the black
teas, and not merely a term indicating a specific kind. But it
appears to us unnecessary to enter upon this inquiry, because, in
our opinion, Congress must be understood to use the word in its
known commercial sense. The object of the duty laws is to raise
revenue, and for this purpose to class substances according to the
general usage and known denominations of trade. Whether a
particular article were designated by one name or another, in the
country of its origin, or whether it were a simple or mixed
substance, was of no importance in the view of the legislature. It
did not suppose our merchants to be naturalists, or geologists, or
botanists. It applied its attention to the description of articles
as they derived their appellations in our own markets, in our
domestic as well as our foreign traffic. And it would have been as
dangerous as useless to attempt any other
Page 22 U. S. 439
classification, than that derived from the actual business of
human life. Bohea tea, then, in the sense of all our revenue laws,
means that article which, in the known usage of trade, has acquired
that distinctive appellation. And even if the article has undergone
some variations in quality or mixture, during the intermediate
period from 1789 to 1816, when the last act passed, but still
retains its old name, it must be presumed that Congress, in this
last act, referred itself to the existing standard, and not to any
scientific or antiquated standard.
The true inquiry, therefore, is whether, in a commercial sense,
the tea in question is known and bought and sold and used under the
denomination of bohea tea. We think the evidence on this point is
altogether irresistible. It establishes that the bohea tea of
commerce is not usually a distinct and simple substance, but is a
compound made up in China of various kinds of the lowest priced
black teas, and the mixture is of higher or lower quality,
according to the existing state of the market. Indeed, from the
uniformity of its price in the midst of great fluctuations in the
prices of all other teas, it seems rather to indicate the lowest
quality of black teas, than any uniform compound. It is accordingly
in proof, that old congo teas are often sold as bohea, and have
sometimes been imported into our market under that denomination. In
short, whenever black teas are deteriorated by age or are of the
lowest price, they are mixed up to form bohea for the market, and
are suited to the demand and wishes of the
Page 22 U. S. 440
purchasers. It is not meant to affirm that there is no such
simple and distinct tea known as bohea. All that the evidence
justifies us in saying is that this is not the common bohea of
commerce. The latter may or may not be a simple substance,
according to circumstances. The generic name "bohea," comprehending
under it all the varieties of black teas whenever they are at the
cheapest price in the market or are of a very inferior quality or
are mixed up for sale, they lose their specific names and sink into
the common denomination.
Such is the conclusion which, in the opinion of the Court, the
evidence in this record justifies and requires. It is true that the
Boston witnesses very strongly stated that the present teas are
pure unmixed congo, and their testimony is entitled to very great
consideration, from their personal respectability as well as their
long experience. But the New York witnesses speak with equal
positiveness and point, that the present teas are the common bohea
of the market, and have been bought and sold as such without
hesitation. These witnesses also are entitled to entire credit for
the same reasons; they have had great experience, and are of
unquestioned credibility. In this apparent conflict of competent
and credible witnesses, the only way of reconciling the testimony
is to suppose that they do not speak
ad idem; that the
Boston witnesses speak to the specific nature of the particular
teas in controversy, and the New York witnesses to their known
commercial denomination in their actual state. In
Page 22 U. S. 441
this way of considering the testimony, the conflict exhibits
more a matter of apparent than real diversity of opinion. But if it
be not thus reconcilable, it appears to us that the weight of the
evidence is so strong, the teas of this description have been long
imported into our market as bohea, that no court of justice would
feel itself authorized to inflict the forfeiture under the statute,
upon a presumed intentional violation of its provisions. There is
indeed something that applies still more forcibly to the claimant
under these circumstances than applies in common cases. He came
into the tea trade since the peace of 1815, and has been most
extensively engaged in it. At the time of his first commercial
enterprise, teas of this description were publicly and commonly
imported into New York as bohea, and had acquired a known
commercial character. He acted upon this settled usage, and if the
present seizure can be sustained, he is to suffer for a forfeiture,
which he had no adequate means to avoid, and could not have
foreseen.
Then as to the intention of fraud. It is said that these teas
were imported in congo chests, covered with a thin paper for the
purposes of disguise, and that upon inspection it is clear that the
original congo still remained in the chests. The circumstance that
these are congo chests, whose structure is perfectly known would
not justify the conclusion that there was an intention to defraud
the revenue, since that structure might attract observation and
thus lead to immediate
Page 22 U. S. 442
detection. It would have been more natural to have disguised
congo teas in bohea boxes. But the difficulty that lies in the
argument derived from this source is that, upon opening the chests,
the contents are proved to be exactly what the New York witnesses
call "bohea" and the Boston witnesses "congo." So that the question
of fraudulent disguise depends upon the fact, whether the tea be or
be not bohea, and if it be settled to be the latter, then the
suspicion from this circumstance vanishes. The same answer may be
given to all the other circumstances relied on as badges of fraud.
They become utterly unimportant if there was not a real
misrepresentation of the quality of the tea.
There is one cogent fact which presses with peculiar weight in
the consideration of this part of the case. It is that after the
present seizure was made and the whole train of suspicions
disclosed, the remaining teas, of the same denomination and
importation, which were yet in the public stores at New York,
underwent a strict examination there under the authority of the
officers of the customs. The result of that examination was an
unequivocal opinion that they were the common bohea of commerce,
and this result being communicated to the government, no further
proceedings were thought necessary to vindicate its rights.
But another fact, which is decisive against the supposition of a
fraudulent intention, is that the teas were purchased in China as
bohea, at the usual bohea price, and upon their importation
into
Page 22 U. S. 443
New York, were there sold at the usual bohea price. They were
sold at prices from thirty-one to thirty-six and a half cents per
pound, when, at the same time, and in the same place, congo sold at
forty-eight cents per pound. This is not a matter of doubtful or
equivocal evidence; it is admitted and proved in the most positive
manner. What then could have been the inducement to fraud? Men do
not perpetrate frauds upon the revenue from the mere love of
mischief, or the wanton disregard of duty. There must be some
leading interest, some enticing object in view, to lead them to
such a violation of social law and moral sentiment. In the present
case, no such motive could exist, for the whole conduct of the
party is at war with the supposition. Nay, more, the perpetration
of the fraud would have been against his interest. We do not here
allude to his private reputation as an opulent merchant, engaged in
an extensive commerce in teas, nor to the powerful influence that,
under such circumstances, public opinion must have upon him, in its
stern and severe, though silent rebukes. But his immediate interest
in the same trade and in the same voyage, would be sacrificed by
such unworthy proceedings. He would hazard large interests upon a
paltry saving in duties, from which he could in the end derive not
the slightest benefit.
It has been said that unless the present libel can be
maintained, a wide door will be opened for the admission of frauds
in the importation of teas. If this be true, it forms no reason for
a different judicial construction of the acts of Congress,
Page 22 U. S. 444
much less for the enforcing a forfeiture where the facts will
not warrant it. Congress can provide an easy remedy, by changing
the specific duty to a duty
ad valorem, a policy which has
already obtained the sanction of other nations.
It is unnecessary to go further into the discussion of the
merits of this case. The judgment of the Court is that the decree
of the Circuit Court of Massachusetts, given
pro forma,
ought to be reversed, the libel of the United States be dismissed,
and the 200 chests of tea be restored to the claimant. But the
court are also of opinion that there was probable cause of seizure,
and direct it to be certified upon the record.
Decree reversed.