Trust to Apply or to Pay over Rents.

jects of the trust were left undefined, of phraseology was recommended by the thus enlarging the statute by giving Revisers, only because the word use ingreater scope to the power of creating cluded the words education and support? a trust and embracing persons other than If so, they were not well employed-if the class at first designated. In this ac- so, the suggested alteration tended to no tion of the legislature, he saw evidence real good. It was a mere piece of verbal that the section was deemed to have been criticism! It is scarcely possible that the at first too much restricted. Mr. Justice Revisers or the legislature, assembled in Cowen, seems to have concurred in this soleman and laborious conclave, to decide as in Hawley v. James, (16 Wend. 200,) between the conflicting claims of two he speaks of this amendment as "the en- terms of expression, finally assigning the largement of the 55th section." post of honor to that one which was of similar signification with its rival, and which was preferable only because of its brevity!

In Coster v. Lorillard, the then Ch. J. Savage, entertained different views. To determine what trusts may now be established, he had recourse to the Revisers' original note, disregarding, apparently, the amendment. That note was designed to illustrate the original subdivision, and for any other purpose, is comparatively worthless. It cannot aid, or at any rate, it should not control us, in passing upon the subdivision, after it has been changed both in its sense and substance. But the Chief Justice, it would seem, looked upon the alteration as being mere matter of form. He even said, "The only reason given by the Revisers was, that "the word use includes education and support, and each of them. It will also include other purposes which ought to be provided for. But it is not intimated that any other class of persons are intended to be provided for."

Is it not obvious, however, that use includes not only the words stricken out, but is yet more comprehensive? Does not the provision "to receive the rents and profits of lands, and apply them to the use of any person," embrace those cases where the cestui que trust possesses a capacity to be benefited beyond mere "education and support," even if the liberal sense which has been imputed to these words, should be adopted? This would seem to be the case, and this the Revisers saw when they informed us, that the amendment would include "other purposes which ought to be provided for:" other purposes than the education and support of a minor, the support of a married woman, the aged, infirm, intemperate and imbecile. But if such individuals are alone It is submitted with deference, that the intended, to what other purposes, properly absence of any such intimation is not for their benefit, can these rents be apmaterial. So far as they go, the Revi-plied? What more can the trustee do sers' notes are useful aids in expounding than to educate and support? Other disthe statutes, but they are not the sole ex- bursements for such a class would be un positors. If they were, however, we necessary. But if the discharge of this interpret by what they did say, rather duty fails to consume the whole of the thau by what they did not say. The ora- rents, what disposition is to be made of cle instructs only as it speaks. Certainly the surplus? Mr. Justice Nelson thought a statute, in language of known import, that this was one of the considera. can be read and comprehended without tions which occasioned the amendextraneous help; nor are courts of law ment, (14 Wend. 332,) and Mr. Sena and equity bound to surrender all inde-tor Maison inclined to the opinion, that pendent judgment, because a body, which as to this surplus, there was no trust acted simply in an advisory capacity, at all, (16 Wend. 257,) and both these failed to intimate to the legislature what propositions, with some qualification of was the utmost limit to which a provision might be expanded. Commentators are useful, so far as they illustrate the text; when they are silent, we must determine the meaning for ourselves.

But, is it indeed true, that this change

the latter, have received the assent of the chancellor, (7 Paige 537.) If there be no trust, it goes to the heir at law. Then, it follows that the trustee has no control over this portion of the fund, or if he has, he must deal with a new party. From this rela

U. S. Circuit Court.-The United States v. The Ship Recorder.

tion arise jealousies and disputes, which trust; and that although a testator may derender such surplus at once an embar-sire to have all the rents and profits laid rassment and a misfortune, the subject of out for the use of the cestui que trust, if a interminable litigation and family quarrels. surplus remains after providing economiThe heir at law may call for an account cally for certain specific wants, such surof the manner in which the fund is dis- plus must be transferred to a party never pensed, and the trustee acts under the contemplated, securing to a discontented constant apprehension of being censured heir a double triumph, in the defeat of the by one party as extravagant, by the other legislature and of the testator! Can it as parsimonious. He moves along a be believed that the framers of the act connarrow path, amid rocks and pit-falls. templated that an interpretation would be Does he sympathise, as may naturally given to it tending to these results? happen to one of humane feelings, with the beings under his protection? He is betrayed into expending too much. Do his predilections lean in a contrary direction? He invents reasons for expending too little. Is he of a timid spirit? He has the alternative of contending on the one hand with a party bowed down beneath the weight of disabilities; on the other, with a party competent, and probably willing, to contest every inch of debateable ground. The strong prevail, the weak suffer; THE UNITED STATES V. THE SHIP REwhile the fund itself, during this unequal CORDER.-2d July, 1847.

U. S. Circuit Court.

[SOUTHERN DISTRICT OF NEW-YORK.]

J. N.

Before the Honorable SAMUEL NELSON, Assis
tant Justice of the Supreme Court of the United
States, and the Hon. SAMUEL R. BETTS,
District Judge.

warfare, is liable to be wasted or misap-The act of Congress of March 1st, 1817, concernplied. In such cases, who would have the temerity to become a trustee?

Nor is this all. If it be possible to find a trustee who, combining rare qualifications-discretion, independence and integrity-is equal to the trying task of adjusting adverse claims and dividing the fund, righteously, between those entitled to it, then no more will be expended than is necessary for the use of the cestui que trust, a greater expenditure being unjust to the other party in interest. It follows that the trustee is tied down to the same course of action under the amended, as under the original subdivision. He can do no more. He could, indeed, if the class of the beneficiaries was extended so as to embrace those capable of being benefited beyond mere "education and support," or if he were permitted to pay over to such of the cestuis que trust as may be competent to use it properly, that portion of the fund not exhausted in carrying out those two objects, but against this, voices from high places have protested. Then it would seem, that although the Revisers and the legislature intended to provide for other purposes, besides those mentioned in the original subdivision, no other purposes can be attained by the

ing navigation, adopts in substance the English navigation act of 12 Charles II. ch. 18.

Qu. Whether the pleadings in this case show the trade in question to be a violation of the act of March 1st, 1817?

If it was so, the United States are concluded by
their contemporaneous construction of the act,
and long continued practice under it, from now
denying the legality of an importation to the
United States of articles, the growth, produc-
tion or manufacture of the British East India
dependencies, from an English port in Europe,
in vessels owned by British subjects resident in
England.

But if the question be an open one, such trade is
not prohibited by the true meaning and effect
of the act.
The act makes no distinction between one part of

the dominions of a foreign state and others, it applies to the entire country or foreign nation. Colonies and dependencies, in contemplation of law, are part and parcel of the country to which they appertain; and privileges and disabilities made to affect them, extend alike to both, when it is not otherwise specially provided or directed. Products of colonies are of the products of the country, and there are no citizens or subjects, or ships of colonies otherwise than as they belong to the entire country.

The term country in the act of March 1st, 1817,

embraces the whole of the dominions of Great Britain, including the East India possessions. The act is to be regarded as retaliatory and prohibitive in its character, intended to counteract like regulations enforced by other countries against the commerce of the United States.

U. S. Circuit Court.-The United States v. The Ship Recorder.

It is not alleged or shown that British laws or regulations of trade prohibit the exportation to Great Britain from a port of the United States, in an American vessel, of articles, the growth, production or manufacture of a territory, or dependency of the United States, but not of the place from which they areshipped for exportation. Nor is it alleged or shown that vessels of the United States, are interdicted importing into the United States from English ports in Europe, productions, &c., of the British East India possessions.

The plea in bar of the information, declared good, and decree rendered restoring ship and cargo

seized, to the claimants.

BETTS, District Judge, delivered the opinion of the court :

The question raised by the issue in law, is whether the trade, in which this ship was employed, is inhibited by the act of Congress, concerning the navigation of the United States, passed March 1st,

1817.

The first section of the act provides, that after the 30th day of September next, no goods, wares or merchandise, shall be imported into the United States, from any foreign port or place, except in vessels of the United States, or such foreign vessels THE libel of information charged, that this as truly and wholly belong to the citizens ship, not being a vessel of the United States, nor a foreign vessel truly and wholly be- goods are the growth, production or maor subjects of that country of which the longing to the citizens or subjects of the nufacture, or from which such goods, British East Indies, on the 22d of May, wares or merchandise can only be, or 1847, imported from London into New-most usually are, first shipped for transYork, various goods described, being the portation. Provided, nevertheless, that growth, production or manufacture of the this regulation shall not extend to the vesBritish East Indies, from which place sel of any foreign nation which has not they have usually, since March, 1817, adopted, and which shall not adopt a simi been shipped for transportation; and by lar regulation. reason whereof, and by virtue of the act of Congress of March 1st, 1817, the said ship, her tackle, &c., and the said cargo, became and were forfeited to the United

States; and prayed process and a decree of condemnation, &c.

The claimants averring themselves to be natural born subjects of the Queen of Great Britain, and resident in England, within the United Kingdom, pleaded specially to the libel, that the said ship, at the time, truly and wholly belonged to them, and still does, and that the British East Indies are, and were at the time, provinces, and part and parcel of the United Kingdom of Great Britain and Ireland, and of her Majesty's dominions, and that the said goods were the growth, production and manufacture of the dominions of her majesty, and were received by them on board said ship, at the port of London, for transhipment to the port of New-York, and aver their right to make such importation, &c. &c.

To the special pleas, the District Attorney demurred.

The second section declares the vessel

and cargo coming into the United States, in violation of those provisions, forfeited.

It is not stated in the pleadings, nor admitted by the claimants on the argu ment, that Great Britain has adopted this act, and the claimants, therefore, regulations similar to those established by in strictness of law, may be entitled to the objection, that the construction insisted on by the government, does not bring the vessel and cargo within the condemnation of the statute.

We think, however, if the navigation laws of Great Britain, notoriously restraining the trade in American vessels, with her colonics, within limits more strict than the regulations of this statute, are not to be judicially noticed by the between the United States and Great court, the provisions of the convention Britain, of July 1st, 1815, must be regarded as part of the law of the case, and serves to herself and adopts, by implicain that convention, Great Britain retion, regulations similar in this respect to those established by the act of Congress

B. F. Butler, (U. S. District Attorney,) in question. for the United States.

F. B. Cutting, for the claimants.

It is admitted by the pleadings, that goods, wares and merchandise, the growth, production or manufacture of the

U. S. Circuit Court.-The United States v. The Ship Recorder.

British East Indies, have, since the passage of the act of Congress, been usually shipped for transportation, from the ports of the East Indies.

The District Attorney, on the part of the government, accordingly contended that the course of trade attempted in this instance, is prohibited to British vessels; first, by the direct language of the act of Congress, and, secondly, by its intent and policy as gathered from antecedent and contemporaneous facts leading to its en

actment.

We think, upon general principles of law, the question is no longer open to the government, upon the construction and bearing of the act of Congress, in this respect.

"The proviso was intended to restrain the privilege extended to foreign vessels in the enacting clause. By this, they are allowed, where they belong wholly to the citizens or subjects of that country of which the goods are the growth or manufacture, to bring these goods into our ports. By the proviso this is confined to cases where a reciprocal privilege of the same kind is extended to our vessels."

This interpretation of the act is entitled to the highest respect, and if we regarded it as removing or meeting the difficulties raised on this issue, we should give it the most careful consideration. We should probably feel considerable hesitancy in accepting as the true key to the interpretation of the act, the idea put forth in the In September, 1817, on transmitting opinion, that the enacting clause extended the act to the officers of customs through- a privilege to foreign vessels, and that out the United States, the Secretary of the proviso confined it to cases where a the Treasury instructed them that "the reciprocal privilege of the same kind is term 'country,' in the first section, is con- extended to our vessels. It rather apsidered as embracing all the possessions pears to us, the natural reading of the act of a foreign state, however widely sepa- gives it a retaliatory and prohibitive cha rated, which are subjected to the same exe-racter, restrained by the proviso from becutive and legislative authority. The productions and manufactures of a foreign state, and of its colonies, may be imported into the United States in vessels owned by the citizens or subjects of such state, without regard to their place of residence within its possessions."

This exposition of the act does not ap. pear to have been called in question or doubted by the United States, until the 30th of June, 1842, when an opinion was given by the Attorney General on its meaning and operation, which, on the 6th of July, 1842, was transmitted by the Secretary of the Treasury to the collectors of the customs.

The Secretary, in his circular, instructs the collectors to be governed thereafter by the opinion of the Attorney General, and "to take care that the penalties of the law are enforced in all cases coming under its provisions." The seizure in the present case is made in execution of those instructions.

The Attorney General intimates that the language of the first section of the act is not entirely free from ambiguity, but declares it his opinion, "that it does not in any case authorize an indirect carrying trade by foreign ships."

ing enforced against any nation not having adopted like prohibitions or restrictions against the United States. But we forbear an examination of this point, because the case submitted to the Attorney General had none of the features marking this. That was a Belgian vessel which imported to the United States a cargo from Buenos Ayres, the products of the latter country, and the question to be decided was, whether such indirect trade was open to her in articles of foreign growth or production. The Attorney General was of opinion, that the act of March 1st, 1817, did not authorize it. The case would have been apposite if the Belgian ship had been laden at her home port, in Europe, with productions of a Belgian colony or territory, in the East or West Indies or Africa, and the United States were debarred importing the same goods, except directly from the place of their production.

There is no evidence before us that the Treasury Department, or the officers of customs, have, since the act of 1817, arrested, or, questioned importations of colonial products, made in a vessel of the mother country, from her home port, and we must regard the contemporary ex

U. S. Circuit Court.-The United States v. The Ship Recorder.

position of the act given by the Secretary "that a contemporaneous, is generally the of the Treasury, as the one acquiesced best construction of a statute. It gives in and practised under by the government, from that period, except by the exposition of the Attorney General, above referred to; and there is no evidence before us, that his interpretation has ever been enforced in a case similar to this.

We hold the government, if not all other parties, now precluded by that long usage, and practical construction of the law, from questioning its correctness and disturbing the course of its execution.

the sense of a community of the terms made use of by the legislature. If there is ambiguity in the language, the under. standing and application of it, when the statute first comes into operation, sanctioned by long acquiescence on the part of the legislature and judicial tribunals, is the strongest evidence that it has been rightly explained in practice. A construction, under such circumstances, becomes established law." (Packard v. Richardson, 17 Mass. 144, 2 Mass. R. 477-8.)

Admitting that on the face of the act it is doubtful whether the trade, now at- The navigation law adopted by Contempted to be prosecuted, can be allowed; gress in 1817, would be one eminently or even conceding that the intention of calculated to attract the notice of the the statute to the contrary is manifest, business community. It provided for and that the Treasury Department mis- cases of deep public moment, and most apprehended and misinterpreted its pro- especially has it tended to meet in some visions, in the instructions of September, degree the embarrassment our trade suf1817, we think the settled rules of law, fered from the navigation laws of Great and the principles governing the inter- Britain, and her commercial regulations, pretation of human language, with what-affecting the intercourse with her colonies. ever solemnity, and to whatsoever pur- These had been topics of agitating interpose it is employed, require us to adopt est in the negotiations between the two and adhere to the contemporaneous con- countries preceding the war of 1812, and struction, corroborated by an undeviat- in those leading to the termination of that ing usage of thirty years, as that which war, and the adjustment of new relations must be applied to the statute, and govern of peace.

this case.

We decm it unnecessary to state arguments or analyze cases supporting the proposition.

The principle is recognized and illustrated by the highest legal authorities (Dwarris on Statutes, 693; Bac. Ab. Stat. I. 5; 1 Cranch, 229; 5 Cranch, 22. 3 Pick. R. 517.

The Supreme Court of the United States gives the most solemn sanction to the doctrine, in declaring that a contemporary exposition of the constitution, practised and acquiesced under for a period of years, fixes its construction, (Stuart v. Laird, 1 Cranch, 299,) and in pronouncing the practical construction of a statute, the one which must be enforced, although clearly unauthorized by the terms of, the law itself. (5 Cranch, 22, McKeer v. Delancy.)

In the first case, the period of acquiescence had been comparatively of short duration-about twelve years.

The Supreme Court of Massachusetts, in a case most maturely considered, held

The 14th Congress which came into power with the close of the war, must have been strongly imbued with the common tone of feeling, and familiar with the state of those commercial regulations as enforced by Great Britain, and their effect upon the interests of the United States.

The President in his message to Congress, Dec. 3d, 1816, adverted in strong language to the state of trade with the British colonies out of Europe; its partial and injurious bearing on our naviga tion, and the refusal of that government to negotiate on the subject.

The merchants of New-York and Portland memorialized Congress on the subject, urging that importations of goods, &c., into the United States, should be prohibited, "except in vessels of the United States, or in vessels built by, and actually belonging to the citizens or subjects of the nation in which such article has been produced or manufactured, &c. (11 Niles' Register, 273, 2d sess. 14th Cong., Doc. No. 81.)

In this aroused state of public opinion,