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Florio v. Peaslee.

verdict of the jury negatives malice, which is an essential ingredient in this statutory offence. It is true, the offence described in the statute is not strictly murder; for it punishes the malicious stroke, given at sea, when the death occurs on land. But it is an offence of which one necessary ingredient is malice, and that is shown by the verdict not to have existed in this case. The District Judge.concurs in this opinion. Judgment arrested.

The prisoner was afterwards indicted in the District Court, for an assault with a dangerous weapon, convicted, and sentenced to three years' imprisonment, with hard labor in the State Prison at Charlestown.

IGNAZIO FLORIO vs. CHARLES H. PEASLEE

The Act of Congress of February 26, 1845, (5 Stat. at Large, 727,) requires the protest made on payment of duties supposed to be illegally exacted, to be signed by the claimant, and his signature to another distinct paper writing to which the protest is annexed by a wafer, not referring to the protest, nor in any manner making part of it, is not a compliance with the statute requirement.

THE case is stated in the opinion of the Court.

CURTIS, J. At the trial of this case, which was an action to recover back duties alleged to be illegally exacted, the plaintiff offered in evidence a paper purporting to be a protest, but not signed. It was annexed by a wafer to an affidavit, which was signed and sworn to by one of the consignees, and both papers were annexed to the entry. I was of opinion at the trial, that this was not a sufficient protest, under the Act of Feb. 26, 1845, (5 Stat. at Large, 727,) which requires “a protest in writing, signed by the claimant." I remain of the

Florio v. Peaslee.

same opinion after consideration of the question, and of the argument submitted on behalf of the plaintiff.

This is not a question of interpretation of the writing. If it were, the three papers would be considered as parts of the same transaction, and each might aid in interpreting the others. It is simply a question whether the protest was signed. I can no more take the signature of one of the consignees to the affidavit, to be a signature of the protest, than I can take the signature of another of the consignees to the importers' oath on the back of the entry, or the name of the consignees, firm in the entry, to be a signing of the protest. They all exist on papers attached together, but neither is there, as a signature of the protest. Each is manifestly put on the paper for a distinct and particular purpose, and this purpose has no reference to or connection with the protest. These signatures must have been there, and with the same intent, and answering the same end, if the protest had never been in existence.

The plaintiff's counsel has given very good reasons for believing, that the want of a signature to the protest, under the peculiar circumstances of this case, could be of no practical importance. But it is a statute requirement, which I have not power to dispense with, whether, in the particular case it be important or otherwise.

The motion for a new trial is overruled.
Griswold, for the plaintiff.

Hallett, District-Attorney, contra.

Taylor et al. v. Morton.

CHARLES G. TAYLOR et al. vs. MARCUS MORTON.

Though a treaty is a law of the land, under the Constitution of the United States, Congress may repeal it, so far as it is a municipal law, provided its subject-matter is within the legislative power of Congress.

A promise in a treaty, that the products of one country shall not be subjected to a higher rate of duty than like products imported into the United States from other countries, addresses itself to the political and not to the judicial department of the government, and the courts cannot try the question whether it has been observed,

or not.

Though the treaty with Russia, of December 18, 1832, (8 Stat. at Large, 444,) stip

ulated that no higher rate of duties should be imposed on goods imported from Russia than on like articles imported from other places, this Court cannot try the question, whether a certain species of hemp, on which a duty of twenty-five dollars per ton is imposed by an Act of Congress, is "like" Russian hemp, within the meaning of the treaty. This is a question for Congress, not for the Courts.

THIS action of assumpsit, for money had and received, was against the collector of customs of the port of Boston and Charlestown, and came on to be tried before the District Judge, at a former term. The parties put in their evidence, and then agreed that the case should be taken from the jury, and submitted to the Court, with authority to draw all such inferences of fact as a jury would be authorized to draw from the evidence; and that a verdict should be entered as the Court might think proper upon the law and the evidence.

At this term the cause was argued before Mr. Justice Curtis, who, at a subsequent day of the term, delivered the following opinion:

CURTIS, J. This is an action of assumpsit for money had and received, brought against the defendant as collector of the customs of the port of Boston, to recover back moneys alleged to have been illegally exacted by him in payment of duties, upon a quantity of hemp imported by the plaintiffs from Russia, while the Tariff Act of 1842 (5 Stat. at Large,

Taylor et al. v. Morton.

548) was in operation. The duties charged were at the rate of forty dollars per ton. The plaintiffs allege that twenty-five dollars per ton was the true rate. The Commercial Treaty between the United States and Russia of the 18th December, 1832, stipulated, in substance, that no higher rates of duty. should be imposed on the products of Russia imported from that country into the United States, than on the like articles imported from other countries. The Tariff Act of 1842 imposed a duty of forty dollars per ton on all hemp excepting Manilla, Suera, and other hemps of India, on which a duty of twenty-five dollars only was to be levied.

The plaintiff's counsel insists, that the import now in question is, within the meaning of the treaty, an article "like" Bombay hemp; that Congress has levied upon Bombay hemp a duty of twenty-five dollars per ton; that as soon as this lower duty had been levied on an article like Russian hemp, the stipulation in the treaty at once took effect, as part of our . municipal law, and reduced the duty leviable on Russian hemp to twenty-five dollars per ton; and so, that under the laws of the United States, the amount beyond twenty-five dollars per ton, was illegally exacted, and can be recovered back in this action.

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Several questions, involved in this position, require examination. One of them, when stated abstractly, is this, if an Act of Congress should levy a duty upon imports, which an existing commercial treaty declares shall not be levied, so that the treaty is in conflict with the act, does the former or the latter give the rule of decision in a judicial tribunal of the United States, in a case to which one rule or the other must be applied.

The second section of the fourth article of the Constitution is, "This Constitution, and the Laws of the United States which shall be made in pursuance thereof, and all treaties made or which shall be made, under the authority of the United States, shall be the supreme law of the land." There is nothing

Taylor et al. v. Morton.

in the language of this clause which enables us to say, that in the case supposed, the treaty, and not the Act of Congress, is to afford the rule. Ordinarily, treaties are not rules prescribed by sovereigns for the conduct of their subjects, but contracts, by which they agree to regulate their own conduct. This provision of our Constitution has made treaties part of our municipal law. But it has not assigned to them any particular degree of authority in our municipal law, nor declared whether laws so enacted shall or shall not be paramount to laws otherwise enacted. No such declaration is made, even in respect to the Constitution itself: It is named in conjunction with treaties and Acts of Congress, as one of the supreme laws, but no supremacy, is in terms assigned to one over the other. And when it became necessary to determine whether an Act of Congress repugnant to the Constitution could be deemed by the judicial power an operative law, the solution of the question was found, by considering the nature and objects of each species of law, the authority from which each emanated, and the consequences of allowing or denying the paramount effect of the Constitution. It is only by a similar course of inquiry that we can determine the question now under consideration.

In commencing this inquiry I think it material to observe, that it is solely a question of municipal, as distinguished from public law. The foreign sovereign between whom and the United States a treaty has been made, has a right to expect and require its stipulations to be kept with scrupulous good faith; but through what internal arrangements this shall be done, is, exclusively, for the consideration of the United States. Whether the treaty shall itself be the rule of action of the people as well as the government, whether the power to enforce and apply it shall reside in one department, or another, neither the treaty itself, nor any implication drawn from it, gives him any right to inquire. If the people of the United States were to repeal so much of their Constitution as makes treaties part of their municipal law, no foreign sovereign with whom a

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