The Rose

20 F. Cas. 1176, 1 Gall. 211

• Court: U.S. Circuit Court for the District of Massachusetts
• Decided: October 15, 1812
• Status: Published

Opinion

STORY, Circuit Justice.

Taking the whole evidence together, I cannot resist the impression, that this was rum, the produce of a British West India island. It has been said that nothing is more uncertain than the taste, and that it would be harsh to found a decree upon its decisions; but I do not yield- to the suggestion. The taste may, nay on many occasions must be, as good and safe a criterion as the eye. Sweet and sour, bitter and mild, are almost universally distinguishable, and flavor may be no less certain. Here is a witness of great respectability, who testifies that he has been employed nineteen years in the customs to examine spirits and liquors, and he declares that he can readily distinguish the various kinds, and, to use his own words, as readily as claret from Madeira wine, or as bobea from green tea. Besides, our revenue laws are predicated upon this supposed distinction of the different kinds of wine; nay, even of the different qualities of the same wine, for they pay different duties; yet it is chiefly by the taste that they can be classed and discriminated. Act 10th Aug., 1790 [1 Stat. ISO] c. 39, § 1. In the present case, I am asked to set aside solemn testimony by conjecture; to declare doubts, where the evidence, if believed, presents none. Now if this rum had been so questionable in taste, why was it not examined and tasted by persons of skill on the part of the claimants? There is not a shadow of evidence to show that any person would have doubted as to the quality of this rum; and when the claimants have not offered any such testimony to relieve the case, I think myself bound to believe that none could be produced. But it is said, that there is no evidence that the master or owner had any knowledge that this rum was of British origin. But, if I believe the testimony of the claimants, such rum was frequently introduced into Cuba. Perhaps prima facie, an article imported from a country where that article is known to be manufactured, is to be presumed to have been of domestic manufacture; but considering the present state of the commercial world, I think even this presumption is but slight; and it is certainly removed by evidence of the free introduction of the same article of a foreign manufacture. At the time when the present cargo was purchased, I must presume, in the absence of all other evidence, that it was examined by the master. As it is proved to be of English origin, I must presume that he could distinguish its quality, since it has been proved to be easily distinguishable. This presumption is not conclusive, but it throws the burthen of the contrary on the claimants. They can rebut it by showing the time, manner, price, and circumstances of the purchase. They could introduce evidence to show its domestic origin, or at least trace its history so far as to create a reasonable doubt, which would repel the imputation of knowledge. They have not so done; and I am bound to believe, therefore, that it cannot be done. The statutes of this country must be considered as known to the citizens; and although the law will not presume a criminal violation of duty, yet, in these cases, it requires diligence and good faith on the part of the merchant. If he will wilfully shut his eyes against the light; if he will not inquire, though circumstances present calling for inquiry; it is at his peril. When the goods are shown to be of foreign growth or manufacture, he cannot disclaim knowledge, unless he shows facts and circumstances. from which his ignorance may be fairly inferred. I think in this case the presumption of knowledge is violent. It has been further insisted, that the act was never meant to be applied to foreign articles, which had been incorporated with the common stock of the country; and that the rum in this case ought to be considered as so incorporated. But I see no such limitation in the statute. The words are, “nor shall it be lawful to import into the United States, or the territories thereof, from any foreign port or place, any goods. <&c. being of the growth, produce or manufacture, &c. of Great Britain or Ireland, or of any of the colonies or dependencies of Great Britain;” and I do not feel at liberty to narrow the construction of language so clear and decided. If indeed the argument were admitted, the act might as well be erased from the statute book; for as to effective purposes, it would be nugatory and idle. I must therefore reverse the decree of the district court, and condemn the property with costs to the United States. Condemned.