HOPKINSON, District Judge
(charging jury): The general question in issue is, to what rate of duty, under the revenue laws of the United States, are certain articles of iron or hardware subject, which were imported by the defendant into this port in January, 1831? The acts of congress impose various rates of duties on iron of various kinds or descriptions, and it is for you to decide under which of these descriptions the importation in question falls. (1) Is it bar or bolt iron? On this article the law of May 19, 1828, lays a duty of thirty-seven dollars per ton, and this is the duty claimed by the United States in this suit. (2) Is it scrap iron? On this article the duty is sixty-two and a half .cents per hundred weight. (3) Is it part or parts of an iron cable or chain? On this the law of May 22,1824, lays a duty of three cents per pound. (4) Is it a manufacture of iron, not specified in the acts of congress? If so it is subject to an ad valorem duty of twenty-five per cent; and this is contended for by the defendant The controversy then is mainly between the first and the last descriptions; between .the bar or bolt iron, and a manufacture not enumerated in the law. Scrap iron seems to be put out of the question by the evidence on both sides. It appears to be neither old iron worn by use, nor pieces of new iron which remain of a large bar, cut or divided for some particular purpose, but too small for the purpose intended. As to the iron cable, or chain, or parts thereof, a good deal of contradictory evidence has been given. At present this may be put aside. It is insisted upon by the United States rather as an alternative, than a direct claim. The real demand in this bond and in this action is for a duty on the articles in question, as bar or bolt iron. The substantial and real allegation of the defendant is, that they are a manufacture of iron not specified under any of the descriptions of iron mentioned in the act.
Tour inquiry will be, to ascertain whether these articles are embraced by the description of bar or bolt iron, as used and intended by the act, or whether they fall under the general head of non-enumerated manufactures of iron.
Tou will observe that it is incumbent on the defendant, on the ground he has taken, to bring them under the clause of the law he contends for, and show not only that they are not specified in the- act, but that they are a manufacture of iron. He contends that they are so; that they are so known under the denomination of chain links; so known as an article of commerce. Tou have seen that the pieces of iron produced are of several kinds; some of them are straight, but cut from the bar in certain lengths, and nothing more done to them; some are also straight, but sloped at the ends; and some are twisted or bent, but not closed at the ends. The last kind, however, you are not now called to decide upon; the importation in question being of the straight pieces only. The defendant contends that these are all equally known as chain links; that chain links are nowhere mentioned or specified in our revenue laws; and therefore that they are a manufacture of iron not enumerated, or subjected to a specific duty. Whether these pieces of iron, cut into various lengths, of various diameters and shapes, are, truly speaking, nothing more nor less than bar or bolt iron, cut into short pieces, but not thereby changing theirnameand character, nor thereby becoming a new and different manufacture of iron; or whether, by this operation or process of cutting, for a particular object, that is, for the purpose of making chain links, they ipso facto become a new and different manufacture of iron; whether, in the lan-[962]*962image of commerce, they become chain links, and are so received and known by those engaged in the iron trade; these are the questions you are to decide, for they are questions of fact, to be determined by the evidence you have heard.
It is not my right or desire to give you any direction upon such questions, but it is my duty to assist your inquiries as to particular points, to which your attention should be specially directed; to observe upon the tendency and force of the prominent facts given in evidence, and the comparative weight of conflicting testimony. This I shall do briefly and generally, although the witnesses have been unusually numerous and their examination has occupied several days.
(1) The defendant insists, that these pieces of iron are known as an article of commerce, by the name of “chain links.” Has he supported this pretension? Has he shown that they have been an article of commerce under that or any other name; that is, under any name descriptive of a known manufacture of iron? Is he not the only person in the United States who has imported them as a distinct, acknowledged manufacture of iron from the bar, as chain links? It is true that one of the witnesses, Amos Noe, a blacksmith and not an importer, says that he knew chain links to be brought from the Peru Iron Works, in the state to the city of New York, and also from England to Philadelphia; but as to the latter, he admitted it was only by Mr. Sarchet. We have no description of what they were, whether like these we have before us, or in a perfect and finished state; nor how they were brought in, whether as a separate article called “chain links”; whether they .were so invoiced or not, so entered at the custom house or not. Of all these matters the witness knew nothing. The same remarks may be applied to the testimony of Washington Jackson, who says he never knew an article of commerce called “chain links,” but that some were offered to him for sale by an Englishman; the offer was made here and the article was in New York, and Mr. Jackson never saw it. I presume if such importations of chain links were made, eo nomine, or by any specific name of manufacture, other than that of bar iron, the books of the custom house at New York would show it, and would show how they were entered, and received and charged with duty. You will judge whether the articles before you have been known in commerce as “chain links,” and have been so imported into the United States by any body but the defendant. I should perhaps notice the examination of witnesses before a committee of congress at Washington, in which chain links are mentioned as a known article; certainly they are; they have been known as long as chains have been known, whose parts have always been called “links”; but the question remains whether the name has ever been applied to such articles or pieces of iron as are now in dispute. That the link of a chain is a manufactured article and has always had that name, cannot be doubted; but you are to inquire whether the pieces before you have or have not been comprehended or classed under that name.
(2) Supposing, however, that the defendant has failed in showing that these things are known in commerce as “chain links,” he may nevertheless make out his case and bring himself within the provision of the act of congress, if he has shown that these articles, in their present state, are a manufacture of iron, are manufactured chain links, as he alleges them to be; for when he asserts that they are a manufacture, he must tell you what they are; and he has undertaken to prove that they are, in the language of the trade,.or the nomenclature of those who ought to be depended upon for information on this point, manufactured chain links, so considered and known. Upon this subject you have had the benefit of the experience and opinions of three classes of dealers in iron: (1) mechanics; (2) merchants; (3) manufacturers. To which of these classes should you look with the most confidence for information? You have been truly told by the counsel for the defendant, that this is a question of construction of a law relating to trade and commerce; a commercial question. It is certainly so. It would seem to follow from this that the vocabulary of the merchant, of the importer, of the counting house, would be most safely adopted, and not that of the mechanic, of the smith’s shop. May you not also put your faith on the manufacturer, the maker of the article, for its appropriate character and name, rather than on the mechanic, who turns it to a new use? All trades have their peculiar names for things, peculiar phrases in their business; a sort of shop short-hand; well understood in the shop, which may be very different from the denomination of the article in the orders and invoices of merchants, or in the usage of the manufacturer, or in common parlance. The shoemaker may say to his journeyman, when he hands him a piece of leather, take this and cut out a shoe; but is it a shoe as soon as cut? The blacksmith may say, take this bar or rod and cut a linch-pin; but is it a linch-pin as soon as the piece intended for the linch-pin is cut off and separated from the bar? So of a horseshoe, and other articles made in a smith’s shop.
I. What have the mechanics testified? Seven were called by the defendant: (1) John Sarchet. You will take his testimony with such allowances as his peculiar situation in this cause may suggest to you. He says, he has always heard these pieces called “links”; that they are the raw material of a chain. (2) William Oorkley calls them “links.” (3) William Pritchett calls those that are bent “chain links”; does not know any other name for the straight ones. (4) Luther Stebbins says when they are cut expressly for links he calls them “links.” (5) Amos Noe calls them all “links,” and never [963]*963heard them called any thing else. (6) Samuel Hulse would call all the articles “links,” but will not say as to the straight ones. (7) Joseph Biter calls it a “link” when cut. (8) Wesley Blackman says they are links. These are all the mechanics called by defendant. They do not all agree in respect to the straight pieces. I should add that all of them but one have worked or are now working in the shop of the 'defendant. I mention this, not to impeach their credibility, but that you may consider how far they have derived their knowledge and opinions from the practice or language of the defendant’s shop. You will also keep in mind that they, or some of them, speak of their knowing these pieces by this name at other places than his shop, or than this city. On the contrary, several mechanics, one of them largely concerned in chain making, testify that they have never heard such pieces of iron called “chain links.” Their names and testimony must be in your recollection. Allowing credit to all these witnesses, the result would seem to be, that thé name of a “link,” given to these pieces of iron, although used in some shops, and by some mechanics, is not universal; is not known to and adopted by all the trade. We may remark that all these witnesses agree; and, indeed, it is obvious to your own inspection, that these pieces are not in fact links, that is, perfect links; that they cannot be used as links without a further process of manufacture. The straight ones must be bended, and the bended ones must be welded, before they can become links of a chain for the purposes intended. They have passed the first process of a manufactured link, of a manufacture different from the bar from which .they were cut. Are they therefore a manufacture, are they links? These are inquiries you are to make, and to satisfy yourselves in the result. It has been strongly argued by the defendant’s counsel, that these pieces were exported, bona fide, for the purpose of making chains, and he concludes from this that they may be called links, or at least a distinct manufacture, not specified in the act Is not the basis of this argument too broad? If a bar of iron should be cut, in England, into pieces suitable to make a horse shoe, and should be really exported for that purpose, could it therefore be a new manufacture, under the name of a horseshoe, for which it is intended, or under any other name?
II. I will next call your attention to the evidence of the merchants, or importers of iron: (1) Joseph It. Evans says none of chese articles answer the denomination of bar iron. He should call the bended ones “chain links,” but is doubtful as to the straight ones. He does not know what name is to be given to them. They could be made into spikes and so could the crooked ones. He has never imported any cut iron, or any cut into links. But he says there is no difference between the straight pieces and the bars, except that they are cut into pieces. (2) William Welsh never imported any iron, his father occasionally imports it; he never heard bar iron called so, when cut. into pieces for 'a particular purpose; he would call none exhibited to him bar iron, except the long bar. (3) George Handy never heard of such an article in commerce as “chain links.” (4) William Thomas sees nothing here that answers the description of bar iron but the long one. The crooked pieces are links unwelded, the others pieces of rod iron cut off. It is iron cut off for links, and he would call it a piece of rod iron. When a rod is cut up, it loses its quality of bar iron and becomes pieces of iron. (5) Edward Carpenter says the long piece is bar iron but none of the short ones. He would call them pieces of bar iron, but not bar iron. (6) Bobert S. Johnson would call the flat piece, “a piece of bar iron.” He imports bar iron of all lengths, from the shortest pieces to a long bar. The small pieces come with bundles to make up the weight. He never made an importation of small pieces and would not receive them. He does not know chain links as an article of commerce. These are pieces of bar iron, though not bars of iron. (7) Thomas Haven says it requires length to make a bar. A bar that is broken is called a “piece of a bar”; when cut, a “bolt”; if bent, a “hoop.” Has never received bolt iron, less than seven feet long; nor bar iron less than eleven. In this country three feet long, and upwards. He never heard such a piece called a link. He would not' enter them as chain links, or as bar iron, but probably as pieces of bars. There is no article of commerce called chain links, and he never heard of their being imported. (8) Samuel Spackman understands bar iron to be of the usual length. A small piece would be called “part of a bar of iron.” He never heard of these links imported. He should not call the straight ones links, but part of a bar or bolt, and the twisted ones, pieces intended for links. (9) Henry Cope, by bolt and bar iron, understands long bolts or bars which are straight. He should call a short one a piece of bolt iron. So far the witnesses for the defendant. (10) John Steel, a custom house officer, says they do not estimate the duties on bar or bolt iron by the length. It is usually from ten to fifteen feet. It does not lose its character by being short He does not consider it to be a manufactured article by being cut; he considers it as bolt iron, hoop iron, or prepared for hoops, but not closed and welded. So iron prepared for railroads is punched with holes. (11) Edward Smith considers che small straight pieces to be short bar iron. He would enter them as bolt iron They might be applied to many purposes. They were sent short because so ordered. Bolt iron is of various lengths. Varieties of articles of various shapes are sold as bar iron. [964]*964If a bar of Iron were cut into' pieces in England, it would still be bar iron. Hoop iron, rolled out thirty or forty feet and cut shorter and doubled up, is still hoop iron and pays the duty as such; it is not considered as a manufacture of iron. He orders bar iron of different lengths, for the fore and hind wheels of a wagon, but they are not therefore a manufacture, because cut for that purpose. (12) Washington Jackson calls the straight pieces, pieces of round iron, of bolt iron, not chain links. He should not call them a manufactured article if not finished for a particular purpose. He never knew them as an article of commerce. • If he wanted bar iron of a shorter length, he would order it as bar iron of a certain or required length. (13) Thomas M. Smith calls the straight pieces, bolts of iron; the bent ones, bent bolts. If he was to import straight pieces cut into lengths, he would enter them as bar iron. He' has imported hollow tire iron, to an order, and paid duty as common iron. This is all the testimony of the commercial interpretation of the terms bar iron, bolt iron. Some of these witnesses are both importers and manufacturers; you wiil remember which of them stand in this double capacity, if you shall think it of importance in considering their evidence.
III. The last class of witnesses is the manufacturers of iron, the forge masters as they have been called, who manufacture iron from the ore to the bar; but not beyond that It is made into pigs, into blooms, and into bars, which is the third state or process of manufacture. The weight and value of the testimony of these witnesses is impeached on the ground, that as they do not manufacture the iron beyond the bar, they know nothing of these links, or of what is or is not a link, which is a process of manufacture beyond or from the bar. You will judge of the efficacy of the argument, but I may remind you that it is to those manufacturers that orders go from the importer, and that the language of the importers, the commercial name of an article, should be known to the manufacturers, or they would not understand these orders. They must have a common vocabulary as to the things in which they deal together; and in this respect, are both separated from the mechanics or blacksmiths, who buy their iron as they may want it for particular purposes, and have their own manner of designating these purposes, and giving their due orders to the workmen of their shops. It is also to be remarked, that if these iron masters are not judges of what may be called a link, because they do not make it, they are specially competent judges of what is considered to be a bar of iron, or bar iron, it being their business and daily experience to make it, and to sell it as a known article of merchandise.
It has also been urged upon them that they have an interest in this question, and are in fact the true and real plaintiffs in the i cause; it is at the same time admitted that the blacksmiths have a common cause on the other side, and it is said they are the real defendants. You have seen and heard all the witnesses, both manufacturers and mechanics, and probably know all or most of them, and can therefore judge for yourselves how far their testimony has probably been influenced by the interest they may have.
The manufacturers of iron are unanimous in their allegations, that these pieces of iron are not chain links; that they are not a manufacture of any description, other than bar iron cut into small pieces, which does not change their quality, their character, or their denomination: (1) Edward Smith, a merchant and manufacturer, considers the small straight pieces to be short bar iron; he would enter the round ones at the custom house as bolt iron. They might be applied to many purposes. To show that the mere act of cutting a long piece of iron into smaller pieces, does not change its character or name, he says, that hoop iron is rolled out into pieces thirty or forty feet long, and then at the same factory, cut into such lengths as may be ordered, but it is still hoop iron, not a hoop, although prepared for one. Sometimes, he says, the holes are punched at the end, still it is not a new manufacture, nor as such entered at the custom house. You may remember here what was said of railroad iron, which are bars of iron, cut into the required lengths, and holes punched in them; they were nevertheless considered to be bar iron, or iron in bars, and paid duty accordingly. (2) Samuel Richards would call these things, “pieces of bar iron,” both bent and straight; he often sells pieces three or four feet long, each is called a “bar.” Many articles are bought and sold as bar 'iron, which are not in bars. Should he receive an order for a ton of bar iron three feet, and another fifteen feet long, he would suppose . they described the same article. (3) Benjamin Reeves calls the small one a “piece of rod” and the thicker one a “piece of bolt iron.” He does not know what to call the large twisted pieces. The shortness of a piece of bar or bolt iron, does not change its character. He often sells short pieces as bar or bolt iron. Many articles are considered as bar iron, that are not straight bars. (I) Andrew M. Jones would call the thick one, a “piece of bolt iron”; the thin, a “piece of braziers’ rod”; the bent ones, “pieces of bent round iron,” but not at all a separate article of manufacture. He should import it as bolt iron. The shortness does not change the character of the article. He has cut several tons into harrow teeth and invoiced them as square bar iron. (5) Clement M. Buckley, calls it a “piece of bolt iron,” a “braziers’ rod.” The bent piece is a piece of bolt iron bent for the purpose of making a link. The shortness of the piece does not change its character, it retains its character of bar iron. He rolls [965]*965bars from twenty to thirty feet long, and then he cuts them. The cost is trifling. He cats them sometimes to suit his wagon, sometimes into short pieces two feet long, to make sheet iron; it is nevertheless, known as bar iron, although cut expressly to make sheet iron. He would furnish one hundred tons cut into pieces of six inches long, for the same price as long bars.
These witnesses concur in testifying that these pieces of iron are not chain links; that they are bar or bolt iron cut into short pieces, and in no other respect differing from the long bar and bolt iron; and that this difference of length does not change either the character or denomination of the article. . And this is what you are to decide, on a fair and intelligent consideration of all the evidence on the one side and the other. If you should be of opinion that they are not chain links, that they are not a new and distinct manufacture, that they have not assumed a new name or use in their present state, but you should also think they are not iron in bars or bolts, or bar iron, they would then be subject to a duty of fifteen per cent, under the general provision of the law of April 27, 181G, unless you can consider them as part of an iron cable or chain. Upon this there has been much contradictory testimony. Literally speaking a link or two links are a part, a constituent part of a chain, which is made up of many links. But it is alleged that, technically speaking, a part of a chain or iron cable, consists of a length of fifteen or twenty feet long, connected by what are called shackles. There is certainly a difficulty under the law in admitting this signification of “part of a chain.” The act intends to put a much higher duty on an iron cable or chain, or part or parts thereof, than on bar iron. But if it may be brought in pieces of ten feet long, and without shackles, it will not pay the duty on iron cables because it is neither an iron cable or chain nor part of one. It will not pay even the duty of 'bar iron, because it is a manufacture of iron from the bar, not enumerated and specified in the act; and thus a manufacture evidently intended to be heavily taxed, will come in for a very low duty of twenty-five per cent, ad valorem.
It is for you to decide whether these pieces of iron are chain links, and if so, are they parts of a chain cable, and if not parts of a chain, can they be chain links. If you shall reject them as links, and also as parts of a chain or iron cable, are they bar iron? You will observe that the clause of the act of congress under which the thirty-seven dollars per ton is claimed by the United States, uses the terms “on bar or bolt iron,” not on “iron in bars or bolts,” as in the preceding clause and in other acts. You will naturally inquire whether this change in the expressions is inadvertent or intentional; is meant to describe the same or a different article. If the same, why is the phraseology changed? If different, in what does the difference consist? By “bar iron,” are we to understand, a particular description of iron; in a certain state of manufacture; ’iron of a certain quality, kind, and character? Should you be told that an article was made of bar iron, would you understand that it was made of iron of a certain character and quality, as distinguished from pig iron, from bloom iron, from cast iron, without any reference to the shape, size or length of the bar or piece of iron from which it was made? On the other hand, should one speak of a bar of iron, or of iron in bars, would you not suppose he had reference to their form, shape, size and length? It has been proved that plough shares and sickles, or other articles of manufacture, are properly called “bar iron”; they are bought and sold by that name; but could we say that they are “bars of iron,” or “iron in bars”? If we could not, there would seem to be a difference of meaning in the two forms of expression used in the same act of congress, unless this difference is controlled by other parts of the act To give you another illustration of the effect of this change of phraseology. If we were to speak of a “pig of iron,” or of “iron in pigs,” would we not mean iron of a certain known quality or manufacture, in pieces called “pigs”; thus describing both the character of the iron, and the ordinary size and shape in which it is made? But if we were to speak of “pig iron,” would we not intend to describe or signify the particular quality and kind of that iron, without any reference to its size or shape? If we had in our hand a piece of iron six inches square, we might say this is “pig iron,” but could we say this is a “pig of iron,” or, if more than one, “iron in pigs”? These are questions for your consideration so far as you shall déem them to be material, in deciding the issue you are trying. If then the terms '“iron in bars,” and “bar iron,” in truth, in their common and proper understanding, as they are taken by commercial usage, do mean and intend the same thing, I would understand them also to mean the same description of iron, the same article of merchandise, in the act of congress. If, on the other hand, they have different significations, the one meaning merely the quality of the iron, and the other iron of the same quality in a particular form, we must so understand the act of congress; we must presume that congress understood the language they have adopted, as it is properly and commercially used and understood; and therefore that when they changed their expressions from “iron in bars or bolts” to “bar and bolt iron,” they intended also the change of description imputed by the change of expression.
The defendant’s counsel has endeavoured, with great industry and skill, to navigate his case between the bar iron on the one side, and the parts of an iron cable on the other, and to show you that chain links are neither [966]*966the one nor the other. It is a narrow strait, but, it may be, not impassable. This you are to determine. He must not have the article to be “bar iron,” but a manufacture from it called a “chain link,” and intended for a chain cable; and yet this chain link must not be a part of a chain cable, or he falls into a greater misfortune than with the bar iron. It must be neither a bar of iron, which it originally was, nor part of a chain which it is intended to be, but something between them, with a known destination, name, and use. It will hardly meet Mr. Buckley’s definition, who says: “An article that is completed and fit for some use, and known by some name, I call a manufactured article.”
I submit the whole case to you; the questions in it are questions of fact, to be decided by the evidence you have heard. Your judgment must be on that evidence. Certainly on the construction of the law contended for by the defendant, chain cables may be brought here, in separate links, requiring only to be connected and welded, at a much lower duty than bar iron; while a chain cable or part thereof is subjected to a much higher duty. If, however, this be the fair construction of the act, or if it be a defect of the act, the defendant is entitled to the advantage it gives him. I ought to add that this bond is given for the straight pieces only, and therefore your verdict will have a reference only to them. You are not now called upon to decide upon the bended or twisted pieces.
The jury found a verdict for the United States, for one hundred and sixty dollars and ninety-seven cents.