Oldfield v. Marriott.

The revenue laws are not to be construed with great strictness, like penal laws, "but so as most effectually to accomplish the intention of the legislature in passing them." Taylor v. United States, 3 Howard, 210.

"Statutes which concern the public good ought to be construed liberally." "A statute made pro bono publico shall be construed in such manner as that it may, as far as possible, attain the end proposed." Bac. Abr. Statute, I. pl. 68, 69, 73, 84, 85, 86, Vol. IV. pp. 650, 652; 19 Viner, Statutes, E. 6, pl. 49, 50, p. 516; 5 Comyn's Digest, Parliament, R. 10, pl. 15, 17, 18, 19, 28, pp. 337, 338, 340; Taylor v. United States,.3 Howard, 210.

"Statutes must be so construed as that no collateral prejudice grow thereby." "In statutes, incidents are always supplied by intendment." 2 Inst., 112 and 222; 19 Viner, Statutes, E. 6, pl. 145, 146, p. 527.

A thing which is within the inten ion of the makers of the statute is as much within the statute as if it were within the letter." 4 Bac. Abr., Statute, I. pl. 42, p. 648; 19 Viner, Statutes, E. 6, pl. 80, 81, p. 519; Mountjoy's case, 5 Co., 1 resolve, p. 5; Beawfage's case, 10 Co. 101; Stowell v. Zouch, Plowd. 366.

"It is not the words of the law, but the internal sense of it, that makes the law; the letter of the law is the body of the law, and the sense and reason of the law is the soul of the law, quia ratio legis, est anima, legis."

"And the law may be resembled to a nut, which has a shell and a kernel within; the letter of the law represents the shell, and the sense of it the kernel; and as you will be no better for the nut if you make use only of the shell, so you will receive no benefits by the law if you rely only upon the letter." Eyston v. Studd, Plowd. 465.

The argument for the plaintiff, that "the exemption has reference to the vessels, and not to the goods," sticks in the letter, disregards the meaning and reason of the law, makes use only of the shell, and tastes not of the kernel,- the substance and intention of the law. As it is the foreign character of the ships which subjects their cargoes to the discriminating duties, so the exemption from such duties must be communicated by the ships to their cargoes through the instrumentality of a treaty (or other cquiva ent act) of the nation to which the ships belong, in extending a reciprocal exemption in her ports to the ships of the United States and their cargoes.

A reciprocal exemption from diseriminating duties of tonnage and port charges only, omitting the reciprocal exemption from the discriminating duties upon goods, wares, and mer

Oldfield v. Marriott.

chandise, did not entitle the Portuguese vessel Sandade Eterna to an entry and permit to her master to unload her cargo of coffee exempt from the duty levied by the third section of the act of 1846, operating as a discriminating duty between the cargoes of American vessels and of foreign vessels, according to Schedule I of the act.

Mr. Justice WAYNE delivered the opinion of the court. This cause was tried and decided in the Circuit Court, upon a statement of facts made by the parties.

The question arising from it is, whether or not the vessels of Portugal are within that clause of the act of the 30th of July, 1846, to reduce duties on imports, in which it is said coffee and tea are exempt from duty when imported direct from the place of their growth or production in American vessels, or in foreign vessels entitled by reciprocal treaties to be exempt from discriminating duties, tonnage, and other charges.

It is contended that Portuguese vessels are within the act, upon a proper construction of it in connection with the second article of the treaty with Portugal.

This article is in these words: "Vessels of the United States of America arriving, either laden or in ballast, in the ports of the kingdom and possessions of Portugal, and, reciprocally, Portuguese vessels arriving, either laden or in ballast, in the ports of the United States of America, shall be treated on their entrance, during their stay, and at their departure, upon the same footing as national vessels coming from the same place, with respect to the duties of tonnage, lighthouse duties, pilotage, port charges, as well as to the fees of public officers, and all other duties and charges, of whatever kind or denomination, levied upon vessels of commerce in the name or to the profit of the government, the local authorities, or of any public or private establishment whatever." Its meaning is, that there shall be an entire reciprocity of duties and charges upon the vessels of the two nations in their respective ports; that is, that Portuguese vessels in our ports shall pay no other charges than American vessels do, and that American vessels in Portuguese ports shall be charged with the same duties as Portuguese vessels may be liable to pay. What these duties may be shall be determined by each nation for its own ports.

There is not a word in the article relating to the duties upon the cargoes of the vessels of either nation. Nor is there a provision in the treaty, as we shall show there is in other treaties between the United States and other nations, restricting either nation from levying discriminating duties upon cargoes carried by the vesseis of either into the ports of the other,

VOL. X.

14

Oldfield v. Marriott.

when they are made up of articles, merchandise, or manufac tures the growth or production of a different nation than that to which the vessel carrying it belongs, or when the cargo shall not be the production either of Portugal or of the United States.

This is the view which both nations have taken of the second article, and of the other parts of the treaty relating to the cargoes of vessels.

The Queen of Portugal, in October, 1841, in less than six months after the ratification of the treaty had been proclaimed by the United States, promulgated a decree of the general Cortes, imposing a discriminating duty upon goods imported in foreign vessels which were not the production of the countries to which such vessels might belong. The object of it was to secure to Portuguese vessels the direct carrying-trade of such merchandise to the ports of Portugal.

The United States did the same by the eleventh section of the act of the 30th August, 1842, two years after the treaty was made. It placed an additional duty of ten per centum above the rates of duty fixed in the act, "upon goods, on the importation of which, in American or foreign vessels, a specific discrimination between them is not made in the act, which shall be imported in ships not of the United States."

This legislation was acted upon by both nations without any complaint, or even suggestion, that it was not in conformity with the treaty stipulations between them. It shows that the views of both were that the vessels of both were to pey in their respective ports the charges their own vessels were subjeeted to, and no more, and that the duties upon goods, not of American or Portuguese production, imported into the ports of either nation by the vessels of the other, might be made liable to such discriminating duties as either might think would give to their own vessels the direct trade of such articles. We will now show that this practice of both nations was exactly what the treaty itself had provided for between them.

The third, fourth, fifth, and sixth articles of the treaty relate to the introduction of merchandise into the two countries, and are all that do so. The seventh and eighth exclude from the operation of those before them the coastwise trade of both nations, and the ports and countries in the kingdom and possession of Portugal where foreign commerce and navigation were not admitted. And the thirteenth article is a mutual undertaking, if either nation shall grant to any other nation a particular favor in navigation or commerce, that it shall become common to the other party, upon the same terms upon which the grant may be made. The third article provides that the

Oldfield v. Marriott.

productions of either nation shall be admitted into their respective ports upon payment of the same duty as would be payable on the same merchandise if it were the growth of any other foreign country. No prohibition can be put upon the importation or exportation of the produce of either nation which shall not extend to all other foreign nations; nor shall there be any higher or other duty in either country, upon the exportation of articles to either from the other, than is put upon the like articles exported to any other foreign country. As yet nothing has been said about the transportation of commodities from one nation to the other, or from foreign states. That is provided for in the fourth, fifth, and sixth articles. By the fourth, both nations can carry in their vessels the productions of each into the ports of the other upon the same terms, the produce and manufactures of Portugal and the United States, it must be remembered, not the produce or manufactures of any foreign country; for the stipulation in the fifth article in respect to the transportation of these permits it to be done only whenever there may be lawfully imported into any or all of the ports of either nation, in vessels of any foreign country, articles which are the growth, produce, or manufacture of a country other than that to which the importing vessel shall belong. By the sixth article, the vessels of both nations may export and re-export from the ports of each all kinds of merchandise which can be lawfully exported or re-exported from the ports of either, without paying higher or other duties or charges than the same articles pay when exported or re-exported in the vessels of either nation.

From all this it must be seen that neither nation has a right by the treaty to carry in its vessels to the ports of the other the produce of foreign countries, except upon the payment of such duties, discriminating and otherwise,. as each nation may impose.

So stood both nations under the treaty from the time of its ratification, and under their respective legislation afterwards relating to duties upon cargoes of foreign produce, without any misapprehension by either, or by the merchants of either, of the privileges of commerce conferred by the treaty. Indeed, there could have been none. But it was necessary to state particularly what our treaty stipulations are, that the nature of the claim now made for her vessels may be more fully understood.

It is now said, that that which the treaty does not permit the vessels of Portugal to do, our own legislation allows, in that part of the act of 1846, to reduce duties on imports, which exempts coffee from any duty.

Oldfield v. Marriott.

There was such a misapprehension for some time. It was acted upon, too, for several months, by some of our merchants and collectors, perhaps until corrected in this instance. The error arose from a misapplication of the act to the treaties which we had with nations abolishing discriminating duties of tonnage and port charges, instead of confining it to our treaties with those of them in which the same thing had been done, with the additional reciprocity, permitting our vessels and theirs to import into the ports of either, on payment of the same duties, the productions of other foreign countries, whether they are shipped from the country in which they are produced, or from any other foreign country.

When the act of July 30, 1846, was passed, we had commercial treaties with twenty-four nations. Thirteen of them -Russia, Austria, Prussia, Sweden, Denmark, Hanover, Sardinia, the Hanseatic cities, Greece, Venezuela, Brazil, Central America, and Ecuador-"had acceded to the most liberal and extended basis of maritime and commercial reciprocity."

They admit our vessels to enter their ports, whether coming from the United States or any other foreign country, laden or in ballast, whether laden with the produce of the United States or of any other foreign country,-paying the same tonnage duties and charges as national vessels. Our vessels may clear from their ports, either for the United States or for any foreign country, whether laden or in ballast, — whether laden with national or any other produce. They admit the produce of the United States to entry, either for consumption or for re-exportation, on payment of the same duties and charges as similar articles the produce of any other foreign country pay, whether imported in American or national vessels; and the productions of other foreign countries, likewise, on payment of the same duties and charges, whether imported in American or national vessels, and whether coming from the United States, the country of production, or any other foreign country. When re-exported, the productions of the United States are allowed the same drawbacks as similar productions of other countries, whether originally imported in American or national vessels; and other goods are allowed the same bounties, whether exported in American or national vessels. (Senate Report 80, 26th Congress, 1st Session.) These provisions give to us and to them a direct and indirect carrying trade. Each nation gets as much of both as its ability and enterprise can secure, and gathers a supply of the produce of other nations by foreign vessels, which they may not be able to bring in their own.

Between the treaties of which we have been just speaking