United States v. Bloomgart.

presumed till his guilt appeared. Chief Justice Marshall, in the opinion delivered by him on the question, after reciting the two charges, uses, in regard to the first charge, the following language (1 Burr's Trial, 11): “On an application of this kind, I certainly should not require that proof which would be necessary to convict the person to be committed, on a trial in chief; nor should I even require that which should absolutely convince my own mind of the guilt of the accused; but I ought to require, and I should require, that probable cause be shown; and I understand probable cause to be a case made out by proof, furnishing good reason to believe that the crime alleged has been committed by the person charged with having committed it." He then proceeds to discuss the evidence in the case as to the first charge, and says, of the affidavit of General Wilkinson: "To make the testimony of General Wilkinson bear on Colonel Burr, it is necessary to consider as genuine the letter stated by the former to be, as nearly as he can make it, an interpretation of one received in cypher from the latter. Exclude this letter, and nothing remains in the testimony which can, in the most remote degree, affect Colonel Burr." He then held, that, upon a mere question whether the accused should be brought to trial or not, upon an inquiry not into the guilt, but into the probable cause, the affidavit of General Wilkinson, embracing the letter from Colonel Burr, was sufficient to warrant the commitment of the accused for trial. This decision was put by him solely on the ground that the expressions in that letter furnished probable cause for believing that the means for the expedition had been provided by the accused.

The evidence in the present case is quite as full, to show that there is probable cause for supposing the prisoner to be guilty of the charge, on this written confession. The confession is very circumstantial and detailed. It shows that he took the Government money,

United States v. United States Telegraph Company.

and for what purpose he took it. I have no doubt that this is a proper case in which to hold the accused for trial. If the offence had been committed in this district, the evidence would be sufficient to commit him to await the action of a grand jury. The only

place where he can be tried is the district of Kentucky, where the offence was committed. The application to discharge the prisoner is refused, the writ of habeas corpus is vacated, and a warrant must be issued, under the thirty-third section of the Act of September 24th, 1789 (1 U. S. Stat. at Large, 91), to the marshal of this District, to remove the prisoner to the district of Kentucky.

APRIL, 1868.

THE UNITED STATES v. THE UNITED STATES TELEGRAPH COMPANY.

DUTY ON TELEGRAPH CABLE.-ENUMERATED ARTICLES.

Telegraph cable, composed of iron-wire and gutta-percha, iron being the material of chief value, is embraced in the words of the twenty-second section of the Tariff Act of March 2d, 1861 (12 U. S. Stat. 192), and the thirteenth section of the Act of July 14th, 1862 (Id. 557), as a manufacture, not otherwise provided for, of which iron is the component material of chief value.

It is, therefore, not embraced within the provision of the twentieth section of the Act of August 30th, 1842 (5 U. S. Stat. 565), which provides, that, on non-enumerated articles, manufactured from different materials, the highest duty shall be assessed which is chargeable upon any of their component parts. Such telegraph cable, therefore, was held to be chargeable with thirty-five per cent. duty, notwithstanding the fact that gutta-percha was chargeable with forty per cent.

BLATCHFORD, J. This is an action to recover $542.30, with interest from January 17th, 1865, alleged to be due to the United States, for duties on a quantity of telegraphic cable imported into the United States by the defendants. The article is composed of iron-wire and

United States v. United States Telegraph Company.

gutta-percha, and, in its manufactured state, iron is its component material of chief value. On the entry of the article, a duty of thirty-five per cent., ad valorem, was imposed, and paid upon it, under section twenty-two of the Act of March 2d, 1861 (12 U. S. Stat. at Large, 192), which imposes a duty of thirty per cent. on "manufactures, articles, vessels, and wares not otherwise provided for, of brass, copper, gold, iron, lead, pewter, platina, silver, tin, or other metal, or of which either of these metals, or any other metal, shall be the component material of chief value," and under section thirteen of the Act of July 14th, 1862 (Id., 557), which, in addition to the duties theretofore imposed by law, imposes a duty of five per cent., ad valorem, on "manufactures, articles, vessels, and wares not otherwise provided for, of gold, silver, copper, brass, iron, steel, lead, pewter, tin, or other metal, or of which either of these metals, or any other metal, shall be the component material of chief value." The words, "otherwise provided for," mean otherwise provided for among enumerated articles, by being classed under a description contained in an enumeration of articles (Morlot v. Lawrence, 1 Blatchf. C. C. R., 608, 611). The article in question here is not included in any enumeration of articles in any Tariff Act existing at the time it was imported, except in such enumerations in the Acts of March 2d, 1861, and July 14th, 1862. It would, therefore, seem, as iron is its component material of chief value, to be liable to a duty of thirty-five per cent., ad valorem, and no more. But the United States claim that it is liable to a duty of forty per cent., ad valorem, on the ground that the twentieth section of the Act of August 30th, 1842 (5 U. S. Stat. at Large, 565), provides, that, on all nonenumerated articles "manufactured from two or more materials, the duty shall be assessed at the highest rates at which any of its component parts may be chargeable," and that, by the thirteenth section of the Act of June 30th, 1864 (13 Id., 214), a duty of forty per

United States v. United States Telegraph Company.

cent., ad valorem, is imposed on "gutta-percha manufactured." This suit is brought to recover the difference between the thirty-five per cent. paid and the forty per cent., and, at the trial, a verdict was taken for the plaintiffs, subject to the opinion of the court.

It is claimed, on the part of the United States, that, as there is not in the Tariff Acts any duty imposed on telegraphic cable, by that name, or by any commercial designation applicable to the thing itself, it is, therefore, a nonenumerated article, and, as such, liable to the duty of forty per cent. claimed. This view would be sound, and the article would be liable to a duty of forty per cent., if it were a nonenumerated article. But it is not a nonenumerated article, and, therefore, the twentieth section of the Act of 1842 has no application to it. That section applies only where an article has not been otherwise provided for-that is, is not classed under a description contained in an enumeration of articles (Lottimer v. Lawrence, 1 Blatchf. C. C. R., 613, 614). The article in question here is described in the twenty-second section of the Act of 1861, and the thirteenth section of the Act of 1862, and is classed under the description contained in the enumeration of articles in those sections, as an article of which iron is the component material of chief value. In United States v. Clarke (5 Mason, 30), bombazine was not named in the Tariff Act of 1824. It was a fabric composed of wool and silk. The Act imposed a duty of thirty per cent. on all manufactures of which wool was a component part (except worsted stuff goods and blankets); a duty of twenty-five per cent. on all manufactures of which silk was a component material, coming from beyond the Cape of Good Hope; a duty of twenty per cent. on all other manufactures of which silk was a component material; and a duty of fifteen per cent. on nonenumerated articles. The court held, that, under the Act, bombazine was not a nonenumerated article, but that it was doubly enumerated. Yet,

The Schooner Elizabeth English.

the only enumeration of it was by speaking of it as an article of which wool was "a component part," or of which silk was "a component material." So, here, the telegraphic cable is enumerated, by speaking of it as an article of which iron is "the component material of chief value."

In the case of Morlot v. Lawrence (1 Blatchf. C. C. R., 608), which is relied upon by the plaintiffs to sustain their claim to recover in this case, the article under consideration-linen lustres, &c., composed of linen and cottonwas not enumerated. It did not fall within any of the articles specially described in any Tariff Act. It was, therefore, a nonenumerated article, and, as such, the twentieth section of the Act of 1842 applied to it.

There must be a judgment for the defendant.

B. K. Phelps (Assistant District Attorney), for the plaintiffs.

G. P. Lowrey, for the defendant.

APRIL, 1868.

THE SCHOONER ELIZABETH ENGLISH.

COLLISION OFF BARNEGAT.-VESSEL CLOSE-HAULED, AND VESSEL FREE.

-LOOKOUT.-LIGHTS.

Where the schooner E. was bound south from New York, heading S. W. by W., one point to windward of her proper course, and the schooner E. E. was bound to New York, heading N. E. by N., and the vessels came together, the E. E. striking the E. on her port bow, and each vessel claimed to have been closehauled, and that the other had the wind free, and neither vessel showed a light, but the E. E. was seen from the E. at much greater distance than the E. was seen, and the E. claimed that the E. E. luffed on seeing her, and thus caused the collision:

Held, That, on the evidence, the E. E. was close-hauled, while the E. had the wind