The daily union. [volume] (Washington [D.C.]) 1845-1857, 1857-02-28
be considered posve raIs Of LAW 10 bind he Court


be considered positive rule of law to bind the Court
of Caims-
We baye shown above that the material point In this re-
gardto wit the power of the Court CLAIMS to define
the legal lay OF the United Slaes party defendant
IN thus precise an original question, never be-
lore ludcaaiiy determined. The Laurence Cas-
geA applies only suit against collector and does
not anticipate contemplate lay down any rule of
law intended operate in suit against the United Stsea
itself
But II s further be considered that the observation Of
the court Is mere cUrsory remarka dcfum--not
va CasgH was case of protest Cases without protest
were not before the court Any observation
that opinion necessarily o5er IL Is entitled to re-
speft out not 10 control the Judgment Aud the
for this is given by the udge Mareha in the case
OF Cohen Vrginsa Wheaton, r. 3s9 The question
actually before the is investigated with care and
considered in its full extent other principles which may
serve to illustrate il considered in their relation the
case decided but their possible bearing sill other
seldom completely investigated So in Carroll Vs. Car
ros Lessee Is How. R. 2sT II the construction put by
the court OF State upon of its statutes mat
ter in udgment II it might have been decided either way
without Affecting any right brought into question then
cording TO the principles of the law OPINION on
such question To make there mus
have been application of The judicial mind the precise
question necessary TO be determined to fix the rights of the
parties and decide TO whom the property in contesation
belongs.n
Now, suppose the precise question in this case as
stated by Judge Backford viz whher The collection Of
diss on articles lasr had been AR
GUED before the Suprme Court in the light thrown upon
il by its own decision in Brocn vs Maryland and Bruno
Ma lott would they have decided that precise question
thus stated in the affirmative
Would they not rather have said they said In Bruno
va Marriott that II was ANOMALY which means de-
viaion ia2 Would they not have declared as they
declared the same case that the collection OF duty on
an article not existing mers fiction of the lawn
mot to De counenanced Would they said as
they had before said unanimously that articles import
ed cannot be taxed ION AMY GROUND OF LAW TRUTH
AND PRoPRIETY I"
This remark of the court in Laurence w. Caswe not be-
ing decision, Is entitled like the opinion of Judge
Backford) only to the weight it derives from its in
rinsc good sense and may be controverted criticised
without disrespec,
not illegally exacted in the legal of the ermn The
legal sense we apprehend is other than the common
sense OF the term illegal exacton" When the Secretary
OF tue Treasury takes money from the citizen under color
ot duty on articles not imported humby submit that
he guilty of illegal txacton in every sense of the
term and this on the panest principles laid down
over again by the Supreme Court
The Supreme Court style the Secretary of the Treasury
tribunal with power to decide certain questions But
tns court had before said that when portion of ship
ment does not arrive here it does not come under the
possession and cognzance of this tribunal and THERE
FORE cannot be taxed on any ground Of la truth pro-
enough And why? Articles not within The acopnjzancea
OF tribunal are not within its urisdcton" Judically
speakng cognizance Is jurisdiction. g Dali. 40o
Wheat. |; 3 Wheat. lac; 8 Wheat. 532)
The conrt say therefore, that articles not imported are
not within the Jurisdiction of the Secretary Of the Treasury
IN hs capacity OF tribunal tribunal acting without its
jurisdiction acts without authority and it's judgments and
orders are nues. They are not yoidahle but simply
void and form bar to recovery sough epea prior 10
repersa In opposition to them. They constitute justf-
cation and a persons concerned executing such udg
mens or sentences considered in law trespassefs
MS language is that of decision of the Supreme Court
y = not uttered agaend or protestandO or oh 1t is
tne law OF the court and of the land Lessee Of Hickey va
Stsacar, l3 How. H. T62.) See cases there cited
NOW, The court is correct in saying that articles
Imported are not within the Jurisdiction of the tribunal
hlf lil
asdctop are nultes and the parties executing them
gre obvious truth rather than para
70 say that such exacons Illegal in every known
sense oil the term mo al popular legislative legal and u
dcial.
1t Is not little remarkable that the court should have
thrown out in the casual manner dictum that
Involves seeming absurdy. The collector takes from
Caswell d1ty articles imported and CasweI pro-
tests the court cay the exaction is Illegal He takes
money from Sturges Bennett Co., under the sae cir-
and they do protest. the say the
action not illegal in the legal sense Of the term This
MAKES the legality or llegay of statutep provision
10 IL
But the court pursuing its illustration from judicial
proceedings, goes on 10 say, in Laurence Cdsweu
money Is often paid under the decision of inferior
court without appeal upon the construction of law which
afterwards in other case higher and superior
court determined to have been construction
but money thus paid is not illegally exacted. Nor
duties illegally exacted where they paid nder the de-
sion of the collector sanctioned By the Secretary Of the
and without appealing from that decision to the
judicial tribunals by proper and legal protest Nor are
they within the principle decided by the court in the
before u.s." 8
The analogy between the case of merchant paying d-
es and an Individual pursuing right before
IA Inferior COURTS by perfect The merchant
2 not upon his guard and has not the benefit of advice
de acts on the legal presumption that the collector under
stands the law, and is doing his duty according to law
He is not dealing with liigant, Withholding from him
1is rights or seeking practise injustice upon him. He
engaged in ordinary commercial trnnsacton in
me settlement OF controverted legal rights.
But the analogy of the suggested to the before
Is is still more open to criticism in another point Of view
suppose the inferior court ects without its jurisdiction,
and an execution Is levied upon its Judgment The Supreme
court says the judgment is nuy and all persons
erned IN executing it tTepasses Is money taken BY
espasser legally or Illegally exaced2 Is there such an
anomaly q legal trespass?
In this the Inferior tribunal takes "copnizance
,f articles not imported and therefore not within it's
jurisdiction Its Judgment is therefore, nullityand
he execution OF 1t is respass; and it s nconcevable
hat money exacted by respasser should not be Illegally
,xacted.
Now, the Supreme Court having decided that the const
ution authorizes import duties only articles brought
nto the country Bropn VS. Maryiand and having de-
ded that articles not brought into the country be
axed as imports any grounds law, Bruno Marrio
and having also held that goods not imported do
within the cognzance jurisdiction of the customhouse,
difficult TO conceive that the court would have
held, argument and delberaon the precise ques
ion that money demanded and paid in violation OF the
and withoat law and where there was no
urisdcton not Illegally exacted in the legal sense OF
he term. Congress had power under the constitu-
ion to demand these moneys How could Congress them
delegate the Secretary legal authority to exact them
submit tten, that Judge Blsckord is wrong in giving
his dictum of the court efficacy of technical bar
The force of such bar is usually pis consiu srpeys
and in this is clearly Judge Backford insists
hat the duties in question illegaly exaced
tha rf dnftA