The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1877-06-02
THE PACIFIC
alAOOertlstr
SATURDAY. JUNE >.
Supreme Court of the Hawaiian Islands.
Is ng rnE B. NJ. B. RoaEETs. EN ApHIEALTP.

JUDD j. This - q Libel for the forfeiture
and condemnation Of the American Bark Mary
Belle Roberts,' now in the port of Honolulu,
alleging that on the 29th April 1877 forty tins
Of OPIUM, an article whose importation is pro-
hibited By law, except as specially provided for
BIZ law, we're imported and brought into this
Kingdom, and that the Master did not include
the same in her " Inward Manifest, but subse-
cuently Struggled a portion Of the same into this
Kingdom.
The law under which this forfeiture is claimed
is Section 655 Of the Civil Code" Every per-
son who shall be in any way engaged in the i'm
portation, introduction, landing or transhippIng
of any goods, wares or merchandise, subject TO
duty, without paying or securing the payment
Of such duty, or who shall make out or pass,
or attempt TO pass, through any custom-house,
any false, forged or fraudulent invoice, and also
his aiders and abettors, shall be deemed guilty
of the mis-demeanor Of smuggling; and on con-
yiction thereof, shall be fined not less than nifty,
nor more than one thousand dollars, or imprison-
ed at hard labor not exceeding two years, in the
discretion of the Court and all goods, wares,
and merchandise, so struggled or attempted to
be struggled, and the vessel from which they are
smuggled or attempted to be s%muggled, together
with all her boats, tackle, apparel and furniture,
and all other boats, vessels, and craft of what
ever description, in any way used or engaged IN
such smuggling, or attempt to smuggie, shall be
forfeited and may be seized, condemned and sold
for the benefit of the Hawaiian Government"
The mlsdemeano of smuggling, thus is by our
law first defined to be the importing &c. of goods
- subject to duty" without paying the duty
By the Code Section SIT, a duty of Is per
cent. ad Uaiorem was leviable on opium. In
1874, the Legislature enacted the following
Statute 8. The importation of opium or any
preparation thereof into this Kingdom, except as
authorized by Section 2 Of this Act, IS strictly
prohibited, and who ever shall import etc. opium,
shall be imprisoned for a term OF not more than
two years. .gst-NE
Section ID of this Act allows the Board of
Health to import opium for medical purposes
and to furnish the same at cost to regular Physi-
clans and foreign bound vessels.
Section SIT of the Civil Code (subdivision o.
enacts that no import duty shall be levied upon
goods or other articles imported for the use Of
the Government &c, 'when imported and used
as SUCH" .l .tr
If the importation of an article be prohibited,
it of course can pay no duty Opium then, IN
this Kingdom, when introduced by any person
or persons not the Board of Health, is not an
article . subject to duty so also when import
ed by the Board of Health, which is a Bureau of
the Government-if imported for ats orcn use:
But when not so used by the Board OF Health
but furnished, as allowed by the law, it is not
exempt from duty. sala#
The Legislature has seen fit thus not TO entirely
prohibit but to restrict its Importation. Now as
the Government when it furnishes opium to
Physicians or foreign bound vessels RECEIVERS the
duty upon it as part of its cost, the introduc-
lOn vi OD11nA ~ Sbho = ~ @AJ NAOOA
not the Board of Health, and the supplying of
only Physicians and foreign bound vessels, would
be to this extent a defraudiDg of the revenue.
But smuggling is also by statute defined to be
g passing or attempting to pass through any
Custom House any false, forged or fraudulent
invoice, An invoice emitting dutiable goods
would be false and fraudulent-so also an
invoice placing goods at less than their value.
The law requires every master of a vessel to
furnish to the Custom House a true and perfect
- = rA ~ l. - .o1,saa 90
that it contains a " full, just and true account
of all goods now actually laden on board y of the
vessel.
By the Convention of Reciprocity between the
United States and this Kingdom a certain list of
articles being the growth and manufacture of the
United States are admitted here free of dnty.
But an ingoice or manifest passed or attempted
to be passed through the Custom House, not
having upon it certain articles which though &C
tuaIIy laden on board q vessel were " the growth
and manufacture OF the United States and not
subject to duty, would be false and fraudulent,
for the law requires, in order that these facts can
be ascertained by proper authority, in accord
ance with the rules and regulations adopfed in
pursuance of that convention, that all goods
brought into this Kingdom shall be brought to
the notice of the Custom House, and regularly
passed upon. .f -ue $50
1t seems to me that any other Interpretation
would lead directly to inextricable confusion and
finally to q total virtual abrogation of all
revenue laws. .E ....
Such was also, in my opinion, the view of the
Legislature when it enacted in Section 3 of the
Opium law, that s~'nothing in this act contained
shall be, construed to exempt any person or vessel
from the pains and penalties prescribed by the
laws of this Kingdom against smuggling"
To say that because opium when introduced into
this Kingdom by any one mot the Board OF
Healthy is not smuggling because opium is not
an article subject to duty would be in fact to
construe this law as exempting any person or
vessel from the penalties against smuggling
which the Legislature has thus unequivocally
forbidden.
Importing opium contrary to law is punisha-
BILE under the act of 1874, and it is also punisha-
bic under the revenue laws-for it can be legally
imported and can legally pay duties, and the
burden of proving the legal Importation and the
payment of the duties required by law, lis upon
the person charged with smuggling) see Sec
ton 657 of the Civil Code.
[ consider it fully established by the evidence,
and it does not seem to be denied by the claim
ants counsel that the an. B. Roberts " left San
Francisco, California, in the charge of l.. c.
Gray as master, there being On board and in the
Captains custody some 81 tins of opium; that
the Captain omitted to include them in his
inward manifest which he signed, swore to and
filed with the Collector General at Honolulu, on
the 30th April last past:
1t is also proven to my satisfaction that he
some 19 tins of this opium in a clandes-
tine manner wrapped in soiled linen at about 5
l2 o'clock of the next day, Tuesday, the LIST of
May that he took the same to the Hawaiian
Hotel where he delivered it ID two packages
without d~ivulgiDg their character) to the clerk
of the Hotel for safe keeping, from whom it was
taken by the Deputy Marshal, also that Is tins
of opium were found by Port Surveyor Markham
in some drawers behind a chest of
in the Captains room on board this yes
sel,-and that this discovery and seizure was
made n short time after the Captain had left for
the Hotel rrsH. . $3.50. ---.r."
The answer of the claimant sets up the special
defence of insanity, and alleges that Captain
Gray was, prior to the departure of the bark
from San Francisco and from thence up to the
present time and now is, a person of unsound
and personally irresponsible for his actions.
AnrtS-nnn- nGnrnl IN thiS nnint Irnr,