Thirion Maillard, Earnest Caylers, and Hamille Roumage, Plaintiffs In Error v. Cornelius Lawrence

• Citation: 16 How. 251,57 U.S. 251,14 L.Ed. 925
• Parties: THIRION MAILLARD, EARNEST CAYLERS, AND HAMILLE C. ROUMAGE, PLAINTIFFS IN ERROR, v. CORNELIUS W. LAWRENCE
• Decision Date: 01 December 1853
• Court: United States Supreme Court

57 U.S. 251

16 How. 251

14 L.Ed. 925

THIRION MAILLARD, EARNEST CAYLERS, AND HAMILLE C.

ROUMAGE, PLAINTIFFS IN ERROR,

v. CORNELIUS W. LAWRENCE.

December Term, 1853

THIS case was brought up by writ of error, from the Circuit Court of the United States for the Southern District of New York.

It was an action brought by the plaintiffs in error against Lawrence, the collecter of the port of New York, for a return of duties alleged to have been improperly exacted upon certain importations of shawls.

The circumstances of the case and the various prayers to the Circuit Court, both on behalf of the plaintiffs and defendant, are fully stated in the opinion of the court.

It was argued by Mr. McCullok and Mr. Cutting, for the plaintiffs in error, and Mr. Cushing, (Attorney-General) for the defendant.

The points made by the counsel for the plaintiffs in error, were the following:

1st. The first, second, third, and fourth instructions asked for by the defendant, and granted by the court, are erroneous, each of them——

(a.) Because the terms, 'clothing ready-made and wearing apparel of every description, made up or manufactured by the tailor, sempstress, or manufacturer,' used in schedule C, of tariff of 1846, do not include by their own force all articles which can be used as personal dress either for the adornment, protection, or comfort of the person; and

(b.) Because, where in said tariff of 1846 the use to which an article may be usually put is intended to govern the rate of duty to be exacted, the statute expressly so declares.

(c.) Because, by all the proofs, said terms, 'wearing apparel,' as used in trade and commerce in July, 1846, did not embrace such shawls and scarfs.

(d.) Because, the terms 'wearing apparel,' as used in said act of 1846, are either synonymous with 'ready-made clothing,' or too indefinite to assess any other article, than ready-made clothing with duty.

(e.) Because the tariff should be construed according to the commercial sense and meaning of the terms employed. The charge is in this respect opposed to the settled law of this court.

2d. The fifth and sixth instructions asked by the defendant, and granted by the court, were erroneous;

(a.) Because the fifth assumes that in commerce the addition of fringes by hand to some of said shawls and scarfs, after they come from the loom, necessarily brings them within the terms, 'articles worn by women or children made up, or made wholly, or in part, by hand,' which are employed in said schedule C.

(b.) Because the sixth assumes that the making of knots in the fringes, or the twisting of said fringes by hand in some of said shawls, after the shawls came from the loom, necessarily brings the shawls within the clause, 'articles worn by women and children, made up or made wholly, or in part, by hand.'

The court erred in refusing the plaintiffs' prayers, because

3d. The shawls and scarfs in question being in trade and commerce known as 'manufactures of silk' or 'worsted,' and not being known in commerce as 'clothing ready-made,' nor as 'articles worn by women and children,' the adding of fringes by hand, or the knotting and twisting these fringes by hand, does not take them out of the classes of 'manufactures of silk, or of which silk shall be a component material, not otherwise provided,' and of 'manufactures of worsted, or of which worsted shall be a component material, not otherwise provided for,' specified by schedule D.

4th. The proof shows that in trade and commerce the term 'made,' or 'made up,' used in schedule C, does not embrace goods to which fringes, borders, knots, or tassels, are added after the fabric is made in the loom; nor force goods with such additions to be rated or known as 'articles worn by women, made up, or made wholly, or part by hand.'

5th. The use to which goods may be put, in fact, does not exclude them from the commercial class to which they belong.

6th. The goods cannot be classed under schedule C, because the proof shows that in the language of trade and commerce they are not either. (a.) 'Articles worn by men, women, or children, made up, or made wholly or in part by hand.' (b.) Nor 'clothing ready-made, and wearing apparel made up, or manufactured wholly or in part by the tailor, sempstress, or manufacturer. (c.) Nor 'manufactures of cotton, linen, silk, wool, or worsted, embroidered, or tamboured, in the loom or otherwise by machinery, or with the needle or other process.'-

7th. The opinions of the officers of the customs detailed in the proof, and the arguments attempted to be drawn by them from the exemption from duty, under schedule 1, 'of wearing apparel in actual use, and other personal effects of persons arriving in the United States,' do not establish any fact, nor furnish any guide in construing the tariff of 1846, so as to charge the shawls and scarfs in question with thirty per cent. duty, under schedule C.

8th. To charge the goods in question with thirty per cent. duty, by schedule C, instead of twenty-five per cent. by schedule D, it is essential that they should have been distinctly well known in commerce by the term 'clothing ready-made, and wearing apparel,' and as the term 'clothing ready-made, and wearing apparel,' by the testimony does not embrace such shawls and scarfs, the greater rate of thirty per cent. is not to be imposed.

9th. The terms employed in schedule C of the tariff of 1846, by which the exaction of thirty per cent. is claimed, are similar in substance with the terms of the act of 1842, and the practical construction and action of the government, in regard to shawls and scarfs, under that act, should be followed under the tariff of 1846.

10th. The exaction of thirty per cent., under schedule C, is not justified by any treasury instructions which are contrary to the commercial understanding, and to the rules of construction of the statute in regard to duties.

11th. The first, second, third and fourth prayers of the plaintiffs were, and each of them was in accordance with the settled law of this court, and the refusal of the court to instruct the jury upon any of the said propositions as prayed for, was erroneous.

The following is a part of the argument of the Attorney-General.

The question raised by the plaintiff in his action is simply this, are 'shawls' wearing apparel?

The act of 1846 has not charged duties upon 'shawls' by that name. But if it be found that 'shawls' are wearing apparel, then the collector has charged the true legal rate of duty, without any excess; and the plaintiff's suit is without foundation in law.

For the signification of the word 'shawls,' as used in the plaintiff's invoices and entries at the custom-house, and of the words, 'wearing apparel,' as used in the statute of 1846, we must resort to the established use of that and of correspondent phrases in our own and in cognate languages, and to critical examination of their legal intent and import.

In McCulloch's Dictionary of Commerce we have this definition: 'Shawls, (German—Schalen; French—Chales; Italian Schavali; Spanish—Chevalos); articles of fine wool, silk, or wool and silk, manufactured after the fashion of a large hand-kerchief, used in female dress. The finest shawls are imported from India, &c. . . . Shawls are made of various forms, sizes, and borders, which are wrought separately with the view of adapting them to the different markets.'

In the Dictionary of French and English by Professors Flemming and Tibbits, we have this definition and explanation: 'Shawl,' (English) 'Grand mouchoir de cou,' (French)—signifying a great handkerchief for the neck.

In the Dictionary of Commerce, published in Paris, in 1839, under the direction of Guillaman, we have this definition: 'Ch ale,' grande piece d'etoffe, dont les femmes se couvrent les epaules, et qui est ordinairement fabrique dans le gout des Chales de l'Orient.' (Shawl—a large piece of cloth with which the women cover their shoulders, usually manufactured in the fashion of the shawls from the east.)

In Landais' French Dictionary, (which has gone through eleven editions,) we have this definition: 'Schall,'—longue piece d'etoffe de soie, ou de laine, dont les habitants de l'Egypte s'entourent la tete. Le schall est adopte depuis longtemps par les dames Francaises, qui le portent sur les epaules—ou ecrit aussi ch ale.' (Shawl—a long piece of cloth of silk or wool with which the inhabitants of Egypt surround the head. The shawl has been long since adopted by the women of France, who wear it on their shoulders—it is also written 'ch ale.'

In the Dictionary of the French Academy, this definition is given: 'Ch ale—longue piece d' etoffe dont les orientaux s'enveloppent la tete, et qui entre aussi de diverses mani eres dans leur v etement.' (Shawl—a long piece of cloth with which the orientals environ the head, and which, in divers ways, makes a part of their apparel.)

Consulting English lexicons, we find these definitions: 'Shawl, a part of modern female dress.'—Worcester.

'Shawl, a cloth of wool, cotton, silk, or hair, used by females as a loose covering for the neck and shoulders.'—Webster.

Craig's Dictionary of the English Language (which is considered the best present standard work) gives us this definition:

'Shawl, a kind of large kerchief, originally from India, which forms a part of modern female dress, being worn as a loose covering for the shoulders and back.'

These various lexicographers all agree that shawls are wearing apparel.

The plaintiffs, to evade the definitions in commercial dictionaries

and other lexicons, and the descriptive words in the statute, (schedule C,) and the mass of testimony given in this cause, and the invoices and entries at the custom-house by themselves, offer the oaths...