The United States v. Douglass.

the case, and drive the prisoner to exercise his peremptory challenges and those for cause upon the forty who stand naturally in a relation of distrust, if not of hostility, towards him. This, to the extent supposed, is put as an extreme case. But it marks distinctly the principle, and shows that the Government may be enabled to force upon the panel men who, unless constrained by overpowering evidence for the defence, would be ready to refuse the prisoner the benefit of an acquittal under almost any circumstances, and might even be inclined, upon testimony faintly criminating him, to render against him a verdict of conviction.

The whole theory of criminal jurisprudence looks to placing the advantage, if one accompanies the case, on the side of the accused; and I think that, after the efforts almost universally put forth in the United States to strengthen and extend such privilege, particularly to a person on trial for his life, we are taking a long step backwards, in setting up the practices of the English assizes, originating in an age of colder sympathy for human life than pervades our era and the jurisprudence of the United States. Accordingly, I regard it as far more consonant with the spirit of our institutions and the rules of criminal law sanctioned by them, for this Court to adhere to the humane and guarded practice adopted in this State, than to recur to one drawn from an English statute, (by means of a construction wearing more the appearance of maintaining a royal prerogative against the will of the Legislature, than of securing to a prisoner the pittance of favor accorded by it,) which dates back to about the year 1300, to the reign of a monarch who, in advance of the sentiment of his age, made most meritorious efforts to reform the condition of the law in his realm, both civil and criminal.

The legislation of the State of New York shows conclusively how the rule is accepted here, and may, with great force, be claimed as declaratory of the true import of the English statutory law on the subject. At all events, it fixes definitively the law governing the State Courts in this respect. As early as 1786 it was enacted that, in all cases where the

The United States v. Douglass.

Attorney-General of this State, in behalf of this State, or he who shall in any case prosecute for the people of this State, shall challenge any juror as not indifferent, or for any other cause, he who shall make any such challenge shall immediately assign and show the cause of such challenge, and the truth thereof shall be inquired of and tried in the same manner as the challenges of other parties are or ought by law to be inquired of and tried. (1 Jones & Varick's Laws, 311, § 22; 1 Greenleaf's Laws, 269, § 22.) This statute was included in the revision of 1801, (1 Kent & Radc. L., 385,

25,) and in that of 1813, (1 R. L., 334, § 25,) and was preserved in the Revised Statutes, (1 R. S., 734, § 11.) If the English statute of 33 Edw. I. was ever in force in this colony or State, it was specifically repealed by the Acts of 1786 and 1788, (1 Jones & Varick's Laws, 312, § 27; 2 Id. 282, § 37;) and then the common law, as modified by the laws and usages of the State, and not as altered by acts of Parliament, would govern the method of conducting criminal trials and selecting jurors. (1 Kent's Comm., 472, 473, and notes.)

The practice of the Courts of the United States has always been to conform in all respects, in trials by jury, as nearly as practicable, to the laws of the State in which they sit. (Conk. Tr., 1st ed., 298.) On the trial of Col. Burr, Ch. J. Marshall said: "The United States have precisely the same rights as the prisoner has, and make the same challenges for a good cause." (1 Burr's Trial, 425.) The counsel for the Government argued for the right of the Government to challenge jurors for cause. Mr. Martin, for Col. Burr, insisted that the United States had no right to disqualify jurors for the prisoner. Ch. J. Marshall replied: "Certainly, the counsel for the United States may challenge for cause." (Id. 424.) And, under those rulings of the Court, the counsel proceeded immediately to try the cause of challenge. These proceedings manifest most clearly that the challenges were received and disposed of by the Circuit Court pursuant to the laws of the State or the practice of the State Courts, and

Grant v. Maxwell.

that no reference was had to the English practice under the statute of 33 Edw. I.

To the like effect were the proceedings in Jones v. Van Zandt, (2 McLean, 611.) The action was in the name of an individual, but was treated, under a statute of Ohio, as a criminal prosecution, and the question was made as to the right of the Government to challenge jurors, and the right was upheld and exercised in conformity with the State law.

Upon the foregoing considerations, I am of opinion that the Attorney for the United States had no right to a peremptory challenge, and was bound to assign and substantiate his challenge when it was made, and before other jurors could be drawn.

New trial denied.

SAMUEL GRANT vs. HUGH MAXWELL.

The proviso to the 61st section of the Act of March 2d, 1799, (1 U. S. Stat. at Large, 673,) which declares "that it shall be lawful for the President of the United States to cause to be established fit and proper regulations for estimating the duties on goods, wares and merchandise imported into the United States, in respect to which the original cost shall be exhibited in a depreciated currency issued and circulated under authority of any foreign Government," is not repealed by the Act of May 22d, 1846, (9 U. S. Stat. at Large, 14,) which prescribes the rates at which certain foreign coins shall be estimated in computations at the Custom-House.

Notwithstanding the Act of May 22d, 1846, an importer of foreign goods is entitled, under the proviso to the 61st section of the Act of 1799 and the Treasury Instructions issued for carrying the same into effect, to enter his goods on paying duties only upon their cash value in the country of their purchase; and is entitled, in order to fix that value, to have the paper or nominal value at which they were purchased and invoiced, reduced to its specie value in such country at the time of the purchase, and to enter the goods on that valuation.

Where goods were purchased in Austria, in 1850, and imported into New York, and the invoice and entry set forth the purchase-price in paper florins, and they were paid for in paper currency, and it appeared that the paper florin was depreciated in Austria, at the date of the purchase of the goods, below the

Grant v. Maxwell.

value of the silver florin, although it was the legal currency in Austria, and was a legal tender at its nominal value: Held that, although the Act of May 22d, 1846, directed the florin of the Austrian Empire to be estimated at fortyeight and one-half cents, yet, under the proviso to the 61st section of the Act of 1799, and the Treasury Instructions in regard to invoices made out in a foreign depreciated currency, the goods were chargeable with duty only on their value in silver florins, after allowing for the depreciation.

(Before NELSON and BETTS, JJ., Southern District of New York, June 2d, 1851.)

THIS was an action against the Collector of the port of New York, to recover back an excess of duties paid on goods purchased in Austria on two different days in May, 1850, and shipped from Trieste to New York. The invoice and entry set forth the purchase-price of the goods in paper florins, and they were paid for in paper currency. It appeared upon the trial, by oral testimony, and also by the official certificate of the United States Consul at Trieste, that the paper florin was depreciated in Austria, at the two several dates of the purchase of the goods, 181 and 193 per cent. below the value of the silver florin. It was further proved, that the legal currency in Austria at those dates was paper money, estimated in florins, and made by law a legal tender at its nominal value. The plaintiff claimed, that the duty on the goods should be paid upon their value in silver florins. A verdict was taken for the plaintiff, subject to the opinion of the Court on a case to be made.

John S. McCulloh, for the plaintiff.

J. Prescott Hall, (District Attorney,) for the defendant.

BETTS, J. By the Act of Congress of the 22d of May, 1846, (9 U. S. Stat. at Large, 14,) it is enacted that, in all computations at the Custom-House, the foreign coins and money of account therein specified, shall be estimated at certain specified rates, and, among others, "the florin of the Austrian Empire and of the city of Augsburg, at forty-eight and one-half cents." The Act also declares, that all laws inconsistent with

Grant v. Maxwell,

it are thereby repealed. For the defendant it is urged, that he was bound, by the terms of the Act, in charging duties on the goods in question, to rate the florin of the invoice at forty-eight and a half cents, without regard to its specie value or depreciation. The plaintiff, on the other hand, claims that the goods are subject to duty only upon their cash value abroad, and that he is entitled, in order to fix that value, to have the paper or nominal value at which they were purchased and invoiced, reduced to its specie value in Austria, and to enter the goods on that valuation.

The purpose of the Government, in all its laws imposing ad valorem duties on foreign merchandise imported into this country, has been to take the true value of the goods in the country which produced them or in which they were obtained, ascertained by the actual purchase-price or by their market value, as the basis upon which such duties are to be computed. This is manifested in the various revenue laws introducing from time to time new provisions to enable the collectors to fix the foreign value correctly and to render duties uniform. The oaths exacted to invoices and on entries, and the enlarged powers conferred on appraisers, together with the early regulation by law of the value of foreign currencies, with the methods of determining their depreciation, are all designed to accomplish that end. The enactments for this purpose are found in the Acts of July 4th, 1789, August 10th, 1790, March 2d, 1799, March 3d, 1801, March 1st, 1823, May 19th, 1828, July 14th, 1832, August 30th, 1842, and July 30th, 1846. (1 U. S. Stat. at Large, 24, 180, 627; 2 Id. 121; 3 Id. 729; 4 Id. 270, 583; 5 Id. 548; 9 Id. 42.) The invoice value of merchandise. must be expressed in money, and the invoice and entry must particularly specify in what money the goods are bought and valued. (Act of March 2d, 1799, 1 U. S. Stat. at Large, 655, § 36.) And they must be invoiced in the currency of the country whence they are imported, without respect to the intrinsic value of the money or the standard of the United States fixed for its value. (Act of March 3d, 1801,