
    Bishop vers. Brig Freemason. ()
    1763.
    Landing is not essential to constitute an Importation of Goods contrary to the Act of 15 Car. 2, c. 7, §6.
    A bringing into Port of prohibited Goods, under Circumstances showing a fraudulent Intent, though without Landing or breaking Bulk, is sufficient, under that Act, to work a Forfeiture of Ship and Cargo.
    MR. AUCHMUTY. I shall consider first the Act of 15 Car. 2. () The Words are confined to Importation. Importation is to be a Forfeit; this four Times mentioned in the same Act; from this I reason that ’tis not a Landing that is required, but that a bare Importation will be a Forfeit. 15 Car. 2, ch. 7, § 6, p. 16. Acts of Parliament are to be construed as we find them; Courts have no Power to controul them. Foster’s Crown Law, 20, 21, Alexander Kinlock Chas. Kinloch, two Persons indicted for Treason; ipecial Plea, that, by Custom, they were to be tried in Scotland : — This, only to show how Acts are to be construed. — The Offence is allowed to be within the Letter, but not within the usual Construction. That the Vessel has imported these Goods is very certain. She was some Time below, was above the Castle () some Time. (He then observes upon the Evidence to shew there was a Design of fraudulent Importation.)
    2. Whether she is within the Meaning of this Act, which is for the Encouragement of Trade: What the Trade is that is to be encouraged, Sec. 5 shews: It is to render Great Britain the Staple. The only sensible Meaning of Importation is Bringing in, exclusive of Landing. 13 & 14 Car. 2, ch. 13, shews this ought to be the Construction. In the same Sense ’tis taken in 13 & 14 Car. 2, ch. 19, and in 13 & 14 Car. 2, ch. 11, §§ 22, 23, and in 22 & 23 Car. 2, ch. 26. From thefe Acts, I think it was evident that Bringing in is all they meant by Importation, as all these Acts use the Words. The Statute 6 Geo. 2, ch. 13, §§ 2 & 3, makes a Distinction between Landing and Importing: They designed to make a Distinction between Goods that are customable, and not forfeited till Landing, and those which, being prohibited, are forfeited by bare Importation. If these Laws should be otherwise construed, they would be compleatly evaded. — For, if they have not a fair Opportunity of Running, they will Report. The Confequences of this Act to any particular Plantation cannot now be considered. There is a great Difference between Goods that may be imported and pay a Duty, and those which are absolutely prohibited.
    
      Mr. Thacher.
    
    I ask no Favour against Law. There is a Preliminary to be settled before the Merits. 1 question the Power the prefent Libellant had to seize — and, if so, the Seizure is abfolutely void. (Upon this, Capt. Bishop’s Commission was read, which was from three of five Commissioners of the Customs — and a Power to seize such and such contraband Goods wherever he should find them.) By the 13 & 14 of Car. 2, ch. 11, § 15, none but an Officer can seize. 2 Strange, 952, Horne v. Boosey. If seized and condemned, the Owner shall afterwards recover in Trover, if the Person who seized was not a proper Officer. Now, every Officer is to be over fome Port, Harbour, Town, &c.; Captain Biihop’s Commiffion is general. No Plantations are mentioned, but it extends through the Globe. Have the Commissioners alone a Power to grant fuch Commiffions? I can’t find their Appointment, therefore suppofe that it is by the King’s Prerogative, and that he might farm the Customs or appoint Commissioners. This, with Regard to the Realm, not the Plantations, as their Planting is within Memory. There were no Officers for a long Time known as Officers of the Customs, but they were ordered to the Governour, or Officers by him appointed. And ’tis by expreis Ads of Parliament that their Appointment here is. 2y Car. 2, ch. 7, § 4. I find by the Records in the Council-Chamber, that the Commiffioners ground themfelves upon this Ad, which relpeds only Collection of Customs. ’Tis 7 & 8 W. 3, ch. 22, §11, this Warrant is grounded, if upon any. By this Ad, Power is given to the Lord Treasurer or Commissioners of the Treasury (these are synonymous) and the Commiffioners of the Customs, jointly. This Warrant is only from the Commiffioners of the Customs, whereas no exclusive Power is given to either. Further, Officers who shall be thus appointed shall be particularly limited, they are still to appoint in fome particular Place, and over fome particular Department. By the 13 & 14 Car. 2, ch. 11, § 14, it feems that the Officers, even in England, are limited ; and it feems to be divided into Districts Officers are obliged to reside in; so that, had there been no Claim, the Party might have brought his Action. This late Ad gives no new Power, but only to appoint Ships. There is an Ad in 10 of Wm. 3, which impowers Ships to seize, which is only on the Coasts, and this is only to extend that coasting Power to the Plantations.
    Let us consider whether it comes within the Letter of this Ad. If any Vessell approaches or comes into a Port, without any Intent to unload, shall her Cargo be said to be imported ? Can a Thing be said to be imported, because the Vessell that holds it comes into Port ? What Mischief do they mean to suppress ? ’Tis lawfull for us to be Carriers from one French Port to another. Shall then an English Vessell, Carrier for other Nations, leaking and wanting Provisions, with Liberty from the Owner to touch at an English Port for a few Days to procure Stores, not be permitted to touch at such English Port ? I challenge an Instance of a Seizure on this Aft, till Landing or Bulk broken. Can it be said that this Stopping is the Mischief? ’Tis supplying the Colonies that is intended to be prevented. This will be still plainer from several Acts the Advocate has cited. 13 & 14 Car. 2, ch. 13, § 2. What they mean by Importation is bringing in as Merchandize, ch. 19, § 2. The Meaning must still be the same.
    
      Mr. Gridley.
    
    The Expression in this Libel, that they are imported into the Port, is different from the Language of the Act, which generally runs, “imported into any Lands, Territories,” &c. The importing into a Port, is quite a different Thing from importing into a Land or Territory. In the 15 Car. 2, upon which this is grounded, it is,  imported into any Island,’ &c. and to say any Thing is imported into any Land without Landing, seems to be downright Solecism. The Wisdom of the Nation has seen fit to gain a Profit from Merchandize, but still that the greatest may still remain with the Merchant. Shall such a Catch as this be the Defign of the Wisdom of the Nation? 28 Edw. 3, ch. 13. 20th R. 3, ch. 4. These were before the feudal Tenures were taken away, and, upon their cealing, Cuiloms were introduced. Carkefle, Book of Rates, 767, 772. In the Act of Tonnage and Poundage, inftead of importing, it is faid, brought into England, 12 Car. 2, ch. 4. 15 Car. 2, ch. 7, § 8, ihews there is importing by Land, fo that the Word can’t have a necessary Regard to Port. 7 & 8 of Wm. 3, ch. 22, §§ 6, 14, it is, to put on Shore. 9 & 10th of Wm. 3, ch. 43, § 1, is an Importation into a Port. 10 & 11 W. 3, ch. 10, § 19, Export is by Land, — fo is n & 12 W. 3, ch. 10, § 3. Never was an Instance of importing into a Port being an Importation. ()
    
      
       Vid. Wilson’s Reps. 257, Smyth v. Reynolds.
      
    
    
      
      (1) This was a libel by Captain Bishop as a Custom House Officer, against the Freemason, as forfeited for importing European goods not shipped in Great Britain, in violation of the Act of 15 Car. 2, ch. 7, § 6. See note at the end of the case. Auchmuty was Advocate General— Gridley & Thacher for the claimants. No copies of the proceedings can be found, for most of the Admiralty records and files of Court prior to 1765 were destroyed in the stamp act riot of the 26th of August, in that year, (2 Minot’s Hist. Mass. 215. Ante, 169,) and what remained are supposed to have been carried away, either to Halifax or England. 10 John Adams’s Works, 205, 354.
    
    
      
      (2) The act of 15 Car. 2, c. 7, § 6, provides that “ no Commodity of “ the Growth, Production or Manufacture of Europe shall be imported “ into any Land, Island, Plantation, Colony, Territory, or Place to His “ Majesty belonging ” “ in Asia, Africa, or America, (Tangier only ex- “ cepted) but what all be bona fide and without Fraud laden and “ shipped in England, Wales or the Town of Berwick upon Tweed, and “ in English built Shipping.”
    
    
      
      (3) Caftle Iftand, on which Fort Independence now Hands, is within the mouth of the harbor, and about two and a half miles from the city.
    
    
      
      (4) The report of this cafe in the MS. here breaks off. A full statement of the facts, the questions raised, and the decree of the Court, appears in the following letter from Governor Bernard to the Earl of Halifax, for a copy of which the editor is indebted to the kindnefs of Hon. Jared Sparks.
      “ My Lord, Boston, Deer. 2-th, 1763.
      “ Pursuant to the order received from Lord Egremont to fend to his “ office exact accounts of what shall happen in the execution of the “ Laws of trade, I proceed to give an account of the prosecution of the “ Brigantine & cargo, of the seizure of which I gave a short information “ in my letter dated Octr. 25.
      “ The Brigantine Free Mason laden with french goods, chiefly wines, “ at Bourdeaux took her departure for Bolton at which place she ar- “ rived (having first touched at Liverpool in Nova Scotia,) on fryday “the 21 ft of Octr. & came to anchor within the harbour about 6 miles “ distance from the Town. There the lay at anchor all the rest of that “ & the next day untill the Evening when it was dark, when he went “up to town. Being hailed in passing the Castle, they answered, from “ Newcastle ; & being boarded by the Man of War’s barge They an- “ swered from Newcallle laden with Coals. But it appearing that she “ had a Cargo of Wine, Capt. Bilhop commander of the Hoop of War “ Fortune, who had qualified himfelf in this Province as a Customhouse “ Officer, seized her. Soon after file was feized they owned that the Brig- “ antine was loaded with french Wines &c. & came from Bourdeaux Being “ bound to St. Eustatia. And on the monday following, being the first “ time the Custom house was open after the feizure, the Master made a “ report of his Cargo, (which in the course of the tryal was falfified) & “ his destination & praied that he might be permitted to proceed to St. “ Eustatia. But the Captain, as a Custom houfe officer, by the advice of “the Advocate General, libelled the Vessell & Cargo in the Court of “ Vice Admiralty as forfeited for importing European goods not shipt “ in Great Britain, contrary to the Act: of the 15th of Cha. 2. Upon “which the Veffell was claimed by owners living in this Province, & as “ for the Cargo, a claim was entered on the behalf of Mr.
      “ a french Merchant at Bourdeaux & Mr. a Dutch Mer- “ chant at St. Eustatia; and it was alledged that these goods were “ freighted by one to the other, and that leave was given for this Vessell “ to take Boston in her way to St. Eustatia and that they had a Right “ to come into this Port fo long as they reported & did not break bulk.
      “ This produced a Question very interesting to the Crown, that is, “ whether a Vessell laden with prohibited goods & pretended to be bound “ from a foreign European port to a foreign American port, might come, “ ever fo much out of their way, into a British American port & there “ lie at anchor upon the credit of reporting her Cargo & pretended des- “ tination. The affirmative of this Question had been pronounced to be “ law in fome popular declamations in the causes which were carried on “ here against the Custom houfe officers about 3 years ago : but there “ never was a caule, that I know, in which this point was adjudged. I “ therefore determined, whenever a Case should happen in which this “ Doftrine should come into Question to oppofe it with all my power; “ lince it is obvious, that if this was determined to be law, it would be “ necessary to apply to Parliament for an amendment of the 15th of “ Char. 2, fince it would be impoffible to prevent foreign European goods “ coming into America, if Vessels laden with such goods had a right to “come to British American ports only by reporting the Cargo & a pre- “ tended destination to a foreign Port.
      “ Upon this account I took upon me the overlooking the conduct of “ this prosecution in a manner more earnest & public than I have used in “other causes of this kind. The advocate general conducted it with a “ Spirit & Judgment not to be enough commended. The most mate- “ rial Question was whether there could be an importation (fo as to for- “ feit) without landing. The judge having heard Council for two whole “ days, gave his opinion that landing was not neceffary to make an im- “ portation contrary to that Aft, & having shown how effeftually the “Aft would be defeated if a liberty for Vessells laden with prohibited “ goods, to come into British Ports at their own discretion was allowed, “ & having mark’t out feveral particular Circumstances which showed a “ fraudulent intention in the prefent cafe, decreed the Veffel & Cargo to t‘be forfeited.
      
        “ From this Decree the Claimers have appealed to the High Court of “ Admiralty. Upon this occasion I must, in pursuance of the orders I “ have received to impart to your Lordship, fetch hints as may occur to me “for the better execution of the laves of trade, earnestly recommend to “ your Lordship, that the defence of this Decree against the appeal may “ be supported at the expence of his Majesty. As one third part of this “ forfeiture is decreed to his Majesty, his interest in it requires thess support “ of his Officers pro tanto. But that is not all: if these extraordinary “ Custom house officers, whose service, as it’s new, is the more invidious: “ do not appear to have the public support of the Crown in what they “ do according to the best advice they can procure, I am convinced that “ a Combination will soon be made to distress & embarrass them by ap- “ peals & actions at common law for doing their duty in the most plain “ & positive cases. This I have seen experienced in the confederacy “ which was formed against the ordinary custom hous officers of this port “ about 3 years ago, which was effectually discouraged by one instance “ only of a defence being carried on at the expence of the Crown.
      “ Copies of the proceedings are making out, which, together with an “ abstracted state of the case & of the arguments used for the forfeiture, “ will be lent by the first opportunity. Captn. Bishop has also seized a “ ship for loading with Rice without giving bond. I advised & assisted “ him in this prosecution, & the ship was condemned together with the “ Rice without any defence.
      “ I am with great regard
      “ My Lord your Lordships
      “ most, &c. &c. &c.
      “ Fra : Bernard.
      “ The Rt. Hon’ble
      “ The Earl of Halifax.”
    
     