*249] * District of Pennsylvania. RROR to the Circuit Court for the This was an action of debt commenced in the District Court in Pennsylvania, by the United States against the defendant in error, to recover a penalty alleged to have been incurred for using a still, and distilling spirituous liquors, without having a license therefor, as required by an act of Congress passed on the 24th of July, 1813. This act imposes a duty, according to the capacity of the still, on all stills employed in distilling spirits from domestic or foreign materials, and inflicts a penalty of $100, and double duties, on all persons who, after the first day of January then ensuing, should use any still, or stills, or other implements, in distilling spirituous liquors, without having first obtained a license, as required by the provisions of the act. For every license the act imposes a duty of nine cents for each gallon of the capacity of the still employed in distilling spirits from domestic materials for the term of two weeks, and in proportion for a longer period. And, on all stills employed in distilling spirits from foreign materials, a duty of 25 cents for each gallon of the capacity of the still for the time of one month. *The cause was removed by writ of [*251 error to the Circuit Court, when the judgment of the District Court was affirmed with costs. It was brought before this court by writ of error, and submitted on the observations of the Attorney-General. The Attorney-General now contended, for the United States, that the district judge ought not to have permitted witnesses to be examined. It was no case for the application of the maxim, quilibet in sua arte credendum est. If the witnesses knew nothing of the subject, their testimony could not enlighten others. If they did, it was plain that their knowledge was derived from being engaged in the same line of business, which gave them an interest in the construction of the law. In the case of the CastPlate Glass Company, Chief Baron Eyre declares that in explaining an act of Parliament no evidence should be admitted; for that would be to make it a question of fact in place of a question of law. The judge alone must direct the jury on the point of law. In doing this, he must form his judgment of the meaning of the legislature, in the same manner as if the case had come before him by demurrer, where no evidence can be allowed. On demurTo the declaration, which was in the usual rer, a judge may well inform himself, from form, the defendant, in proper person, plead dictionaries or books, on the particular subject nil debet, on which issue was joined. It was concerning the meaning of any word. Yet, if proved on the trial, and admitted by the de- he does so at *Nisi Prius, and shows [*252 fendant, that he was the proprietor of a distil- them to the jury, they are not to be considered lery within the District of Pennsylvania, which as evidence, but only as the grounds on which he used, and for which he had not taken out he has formed his opinion, in the same manner a license, agreeably to the act of Congress as if he were to cite authorities for the point of 250*] *before recited. It was also proved, on law he lays down. The single question in the the part of the defendant, that his distillery present case was, whether a person using a was not used in distilling spirits from domestic still for the purpose of rectifying spirits is materials, but in rectifying the said spirits within its true meaning. It is necessary to reafter they had been distilled from domestic ma- mark that the duty under this act was not terials; that he is not a distiller, but a rectifier upon the quantity of liquor distilled nor upon of spirits. He contended that distillation and its removal. This, indeed, had been the case rectification of spirits are distinct vocations; with some parts, and at other times, with this that rectifying such spirits is not a part of the part of our excise system. But under the presprocess of distillation, but a mere purification ent act, the duty was upon the implement or of the spirits themselves from feculent or use- still itself. To speak the language of the deless matter; and that he was not liable to the bates, it was upon the capacity, not the gallon; penalty of the act of Congress. The attorney a distinction materially relevant to a right unfor the United States contended, that rectifica-derstanding of the point in controversy. By tion of spirits in a distillery is nothing more the first section of the act, a license is required than distillation repeated, and in this repetition to be taken out for all stills used for the purpose the spirits must be deemed, and in fact are, of distilling spirituous liquors. No exception domestic materials. is made as to any particular kind of still. The term spirituous liquors is so comprehensive that it must necessarily include all liquors that contain spirits, without any reference to the proportion or quantity which they may contain. By the second section, a certain amount of duty is laid on stills employed in distilling spirits from domestic materials, and a different amount on those that work on foreign materials. It is evident that no intention existed to define what was meant by materials, but barely to discriminate between foreign and domestic, with a view to make the duty lighter on spirits produced from the latter than on the [*253 former, according to the common policy of our legislation. Two points will be made for the United States: 1. That spirits are the mate The court charged the jury that the act of Congress, laying duties on licenses to distillers of spirituous liquors, did not apply unless when the still is used for the purpose of distilling spirits from domestic or foreign materials; and that if the still, or other implement, be not employed in distilling spirits from domestic or foreign materials, there can be no penalty incurred for using a still for any other purpose, although no license be taken out; and that spirits cannot be considered as a domestic ma terial. The penal laws must be construed strictly, and must not be amplified by intendment. That whether rectification be part of the process of distillation, was a fact to be left to the jury. The counsel for the United States excepted to this charge. There was a verdict and judgment for the defendant. 1.-Anstr. 40. rials upon which rectification operates. 2. That of matter merely by being separated from subrectification is a branch of the process of distill- stances with which they were primarily coming. The first point is so plain that the defend- bined. Between the derivatives of matter and ant himself must admit it. The second alone materials it would be strange indeed to attempt opens a door to argument. The question lies any distinction, as applicable to the case under out of the ordinary track of legal discussion. consideration. The spirits extracted by the To understand it, we must have recourse to doubler are understood to be generally about books of art. It is these which will best fix proof. For various purposes it is necessary to the true meaning of the terms distillation and increase their strength. This is effected by a reetification. We shall then be enabled to de-third or fourth distillation generally, though termine, if there be any, the difference between not necessarily, in the same stills. By this procthem. Doctor Black, in his elements of chem-ess, not only is the strength raised, but the puristry, after speaking of fermentation, says: ity is increased. Now, in what, may it be "The spirit is separated more or less perfectly asked, does this operation differ from from these substances by distillation, it being the second process in the doubler? Spirmore volatile than most of them, especially the its of an inferior strength are the materials of acid, mucilaginous and coloring matter. The distillation in the one case and in the other. water is but imperfectly separated at first, on The last, and any similar subsequent operations, account of the small difference of volatility may be called rectifications. But they are disbetween it and the spirit. To reduce the spirit tillations, too. They impart to the spirits more to a state of purity, we must perform several strength as well as more purity. It is just so other operations, such as distilling it again once with the second process in the doubler. It may, or twice with a gentle heat, which is called perhaps, be said, that these subsequent procrectifying. By this we separate the greater esses are all carried on by the rectifier, on spirpart of the water which had come over in the its previously distilled. That it is done merely first distillation." Fourcroy, in his elements, to fit them for combination with other materidefines rectification to be "a second distillation, als of which mixtures are made by persons not in which substances are purified, by their most distillers, and that in such process extraneous volatile parts being raised by heat carefully matter is often introduced with a view to great254*] managed. The *Attorney-General next er purity. To this, it may be answered, first, referred to Hall's distiller (which, he said, was that these processes in nowise destroy the agreed to be a very accurate work upon this *character of distillation, as they do not [*256 subject), and to the Encyclopedia, where the necessarily prevent an augmentation in the definitions were substantially the same as in strength of spirits; and, secondly, that the inBlack and Fourcroy. Even the common diction- troduction of extraneous matter is not confined aries of the language, he said, defined rectifica- to the higher process of distillation, as water, tion to be the act of "improving by repeated charcoal, and other ingredients, are not unfredistillations." The point appearing to stand quently used in the process by which low wines thus upon the score of authority, it was next to are converted into proof spirits. Suppose a be inquired how it stood upon that of reason. patent to be taken out for carrying on the origThe duty, as the law so plainly makes known, inal process as well as rectification in the same is laid, in the broadest manner, upon all stills still, how can the duty be made to attach even used for distilling spirituous liquors. It is in the case of the doubler, except on the hypothneither graduated by the strength of the spirits esis assumed for the United States? It would produced nor by the simplicity or complexity be difficult, if not impracticable, to fall upon of the manufacture. The first process in dis- any other mode. Again, the duty on stills is tillation is understood to be that in which the properly considered as a commutation for wash is put into the still. From this low wines that which might have been laid upon the are drawn, or spirits of an inferior quality. liquor. Is it not, therefore, as just that the From a case in Anstruther, 558, it would seem duty should be paid upon the still when used to that in England the first duty attaches on the produce rectified spirits as when it is used to wash before distillation. For a still employed produce any other kind of spirits? The Engin the first process, it was on all hands admit-lish statutes in pari materia will be found to ted that a license must be taken out. The in- countenance the doctrine contended for on the ferior spirits so drawn do not constitute market- part of the United States; particularly that of able spirits. A second process is then used. 2 Geo. III. ch. 5, from the twelfth section of This consists, for the most part, in putting which it appears that the rectifier who distills them into a smaller still called a doubler. spirits and the common distiller are considered From the doubler they come out, having the the same. Several of the other sections would quality of common marketable spirits. A license also show that rectification and distillation, ought surely to be taken out for a still so em- when an increase of strength was the ployed, call it a doubler or by any other name. object, were used as equivalent terms. The But the original matter, or material, is here system, in England, contemplated the laying of clearly out of view, for it went into the first a duty first on the low wines, and then on the still. Nothing but the spirits extracted from it spirits distilled from them. So Congress, with 255*] were carried over to the doubler. Does like equity, may have intended to impose not this, then, establish the point that inferior a duty first upon the still when used [*257 spirits may become domestic materials under in the original manufacture of spirits, and the act? It cannot, with any show of reason, again on its use in the manufacture of spirits of be pretended that they have lost the properties a higher proof. So far is such a principle from being at all repugnant to the general theory of American taxation, that it is sanctioned by the tention of the legislature to exact one duty only on the distillation of spirits. J. C. F. CHIRAC whole analogy of our impost revenue. Thus, under the present tariff, iron in bars, iron in sheets, and iron in bolts, is each charged with It is the opinion of this court that there is no a different duty. Leather in different forms, as error in the judgment of the Circuit Court. in boots, saddles, caps, slippers, pays differ- This opinion is given on the request of the ently. The duty levied upon imported spirits Attorney-General, it being probable that the is graduated according to the degree of proof. same question may frequently occur. But, as Brown sugars, white sugars, lump sugars, pow-this cause is improperly brought before this dered sugars, are all subject to different rates. court by writ of error, having been first carried Tobacco, under its different forms of manu- from the District to the Circuit Court by the facture, is chargeable with different duties, same process, it is dismissed." and the list might easily, if it were necessary, Writ of error dismissed. be extended. Other nations have refined somewhat more upon the principle. Mr. Brougham, in his Colonial Policy, mentions that there was once a particular sauce for fish used in Holland which was made to pay no less than thirty different duties of excise; a provident decree against the luxury of the palate, among a people as renowned for frugality as riches. Yet it may be that this sauce was a less noxious superfluity than the liquor of the still. Revenue laws are to be construed and applied with great exactness. They are framed for the security of great national interests, and the effect of such laws, founded on considerations of public policy, is not to be weakened by a minute tenderness to hardships, real or supposed, in particular 258*] instances. It is also a good rule, where doubts exist in a revenue case, to lean in favor of the revenue.1 Duvall, J., delivered the opinion of the court, and after stating the facts, proceeded as follows: The court, in considering this question, must be governed by the language of the act of Congress of the 24th July, 1813. By this act a specific duty is laid on licenses to stills employed in distilling spirituous liquors from domestic or foreign materials, and a penalty is inflicted for distilling without a license. V. THE LESSEE OF A. F. GHIRAC et al. United States in 1793, and became domiciled in J. B. C., a native of France, migrated into the Maryland. On the 22d September, 1795, he took the oaths of citizenship according to an act of Assembly of Maryland, passed in 1779, and the next day received a conveyance in fee of lands [*260 in that state. On the 6th July, 1798, he was naturalized under the laws of the United States: and, in July, 1799, died intestate, leaving no legitment, who were natives and residents of France. imate relations, other than the plaintiffs in ejectUpon the supposition that the lands were escheatable. the State of Maryland conveyed them to his natural son, J. C. F. C., with a saving of the rights of all persons claiming by devise or descent from the intestate; under which grant J. C. F. C. took possession of the lands, and remained in possession until the ejectment was brought. In March, 1809, the defendants in error, the heirs at law of J. B. C., French subjects, brought an action of ejectment for the lands in question; and, in May, 1815, obtained a verdict in their favor, and a judgment thereon, which was affirmed. It was held that the power of naturalization is exclusively in Congress, but that the treaty of amity and commerce between the United States and France, of 1778, art. 11, enabled the subjects of France to purchase and hold lands in the United States. Quære. What was the effect of this treaty un der the confederation? J. B. C. having died, seized in fee of the lands in question, his heirs being French subjects, the treaty of 1778 having been abrogated and the act of Maryland of 1789, permitting the lands of a French subject, who had become a citizen of Maryland, dying intestate, to descend on the next of kin being non-naturalized Frenchmen, with a proviso vesting the land in the state, if the French heirs should not, within ten years, become resident citizens of the state, or convey the lands to a citizen: it was determined, that the time for the performance of this condition having expired before the action was brought, the estate was terminated, unless supported in some other manner than by the act of Maryland. But the convention of 1800, between the United States and France, enabling the people of one country holding lands in the other to dispose of the same by testament, or otherwise, and to inherit lands in the respective countries without being obliged to obtain letters of naturalization, it was held that it rendered the performance of this contional rule applied equally to the case of those who took by descent, under the act, as to those who The distillation of spirituous liquors is performed by a double process: by the application of heat to a still containing the material. The product of the first process, after running through the still, is commonly called low wines, or singlings; the low wines undergo a second process of distillation, by which spirits are produced; they are to be proof of the first, second, third, or fourth degree, as defined and required by law. These are marketable, and here the process ends. The material from which the spirits are extracted appears to be the object of the law. The rectification or purification of spirits, after their distillation has been complete, in order to fit them for certain pur-dition a useless formality, and that the convenposes of combination with other materials, is no part of the process of distillation, and is not a breach of the provisions of the act of Congress. The distillation of spirits. and the rectification of them after they are distilled, appear to be distinct and separate acts. No duty is specifi259* cally *laid by law on the rectification of spirits, nor does it appear that any was contemplated; and, if the process is confined to the rectification of spirits already distilled, no penalty is incurred, although a license is not previously obtained. It was evidently the in 1.--The Betty Cathcart, 1 Rob. 229; 1 Bl. Com. 324. (Christian's edit.) acquired by purchase, without its aid. The further stipulation in the convention "that in case the laws of either of the two states should restrain strangers from the exercise of the rights of tate may be sold, or otherwise disposed of, to citiproperty with respect to real estate, such real es- . zens or inhabitants of the country where it [*261 may be," was held not to affect the rights of a tion, so as to deprive him of the power of selling to French subject who takes, or holds, by the conven 2. Vide 7 Cranch, 108. The United States v. Goodwin; Ib. 287, The United States v. Gordon et al., in which cases it was determined that a writ of error does not lie to carry to the Supreme Court a civil cause which has been carried from the District Court by writ of error. citizens of this country; and was held to give to a Eof Maryland. John Baptiste Chirac, a native of France, migrated into the United States in the year 1793, and settled in Maryland. On the 22d of September, 1795, he took the oaths of citizenship, according to the form prescribed by an act of Assembly of the state of Maryland, passed in the year 1779, and the next day received a conveyance in fee of land lying within that state. On the 6th of July, 1798, he was naturalized as prescribed by the laws of the United States; and, in July, 1799, he died intestate, leaving no legitimate relations other than the plaintiffs, who are natives and residents of France. Supposing the lands of which he died seized to be escheatable, the state of Maryland conveyed them to John Charles Francis Chirac, his natural son, with a saving of the rights of all persons claiming by devise or descent from the intestate. Under this act, John Charles Francis Chirac took possession of the land of his father, and has remained in possession ever since. 262*] *In March, 1809, the defendants in error, who are the heirs at law of John Baptiste Chirac, and subjects of the King of France, brought their ejectment for the land of which their ancestor died seized; and in May, 1815, under the instruction of the court, to which exceptions were taken, obtained a verdict in their favor, on which a judgment was rendered; which judgment is now before the court on a writ of error. virtue of the act, become seized in fee of any real estate, his or her estate, "after the term of ten years be expired, shall vest in the state, unless the person seized of the same shall, within that time, either come and settle in, and become a citizen of this state, or enfeoff thereof, some citizen of this or some other of the United States of America." Harper, for the plaintiff in error, and the defendant in the court below. 1. The act of Congress abrogating the French treaties, in consequence of the non-fulfillment of their stipulations by France, and the second article of the convention of 1800, stipulation for further negotiation respecting the claims of the United States for indemnities, and respecting the revival of the treaties, drew after them a virtual repeal of the act of Maryland of 1780, that act being founded on the reciprocity stipulated by the treaties. The intervention of the local legislatures was deemed necessary to carry into effect treaties made by the national government under the confederation. The legislature of Maryland understood it to have been so, for their act is not a literal transcript of the treaty of 1778; it limits and controls the reciprocity stipulated by the treaty. As nobody at that period could conceive the possibility that we should ever cease to maintain the relations of friendship and alliance with France, no time for the duration of the act was limited; but when the treaty was annulled the act fell with it. Consequently, the heirs of John Baptiste Chirac had no *inheritable quality. 2. [*264 He acquired no capacity to hold by his naturalization under the local law, since, by the constitution, Congress alone has the power of prescribing uniform rules of naturalization; and the act of Maryland is a general naturalization law, not a special act authorizing aliens to hold lands, or conferring other particular privi leges. If the states could make such a law, the constitution of the United States would be completely evaded; as the citizens of one state are entitled to all the privileges and immunities of citizens in every other state. 3. The heirs The act of Assembly of the state of Mary- of John Baptiste Chirac have not conformed to land, on the construction of which the cause the provisions of the act of Maryland by settling mainly turned, was passed in 1780, and is en- in the state and becoming citizens, nor by entitled "An act to declare and ascertain the feoffing some person of the lands within privileges of the subjects of France residing ten years from the time when they became within the state." The 1st section gives to seized; and, consequently, their right was gone French subjects the capacity of holding lands before the ejectment was brought. The term within the state, on certain conditions. The seizin in the act means, not a seizin in fact, a 2d section gives to those subjects who may be pedis possessio, but a legal seizin; and the ten resident in the state all the rights of free citi-years' limitation begins to run after the seisin zens thereof. The 3d section contains a proviso in law. The technical word enfeoff, as here restricting and limiting the privileges granted used, merely refers to the alienation of the by the act, and declaring that nothing therein land, which may be by bargain and sale, or contained "shall be construed to grant to those any other usual mode of conveyance known in who shall continue subjects of His Most the state; and it was not necessary that they Christian Majesty, and not qualify themselves should come into the state in order to execute as citizens of this state, any right to purchase any of these conveyances, or even to make a or hold lands, or real estate, but for their re- feoffment. spective lives, or for years." The 4th section enacts, that if any French subject who shall become a citizen of Maryland "shall die in testate, the natural kindred of such decedent, whether residing in France or elsewhere, shall inherit his or her real estate, in like manner as if such decedent and his kindred were the citizens of this state," with a proviso, that 263*] *whenever any French subject shall, by Winder and Mercer, contra. 1. The constitution of the United States, and the laws made under it, do not, ipso jure, repeal a state law relative to the same matter, but only annul such parts of the latter as are inconsistent with the former. The respective *States still [*265 preserve the right of making naturalization laws, giving certain civil rights to foreigners, without conferring universal political citizen be ship. 2. The act of Maryland was not founded | Martin, in reply. 1. It is a general rule on the treaty merely; the legislature had other adopted by sovereign states that the real propobjects of policy in view than a mere compliance erty within their dominions should not with the stipulations of the treaty; the continu- owned by aliens; not that this universal rule is ance of the act was wholly independent of the considered as a deprival of property, the suffertreaty. It is a part of the code of Maryland, ing a penalty, or the incurring of a forfeiture, abstracted from the treaty, and would exist but as an absolute disability to acquire, to hold, with or without the treaty. It consequently and to enjoy the property, founded upon rearemained in full force and vigor notwithstand sons of public policy. The act of Maryland ing the abrogation of the French treaties in merely dispenses with this rule to a certain ex1798. The time of limitation contained in the tent, and upon certain conditions; it does not act, within which the party is obliged to come inflict any penalty or forfeiture on the kindred and reside in a state, or to enfeoff a citizen, of the decedent; nor create in them any disadoes not refer to a mere seizin in law. The bilities; nor deprive them of any property; term "seized," if unconnected with other ex- nor infringe any of their rights whatsoever. pressions qualifying its import, might, indeed, Consequently, they must show that they have imply a legal seizin only; but with the injune- strictly complied with the terms on which this tion to "enfeoff," it necessarily imports a seizin boon has been granted. 2. The moment the in fact, because such a seizin is necessary to French subject, on whom the act confers a enable the party to make a feoffment. 4. But capacity to hold, dies, his kindred inherit; and the convention of 1800, which was concluded the moment the kindred inherit, they become whilst the defendant in error held an estate in seized in fee; and the moment they become fee-simple under the act of Maryland, deter-seized in fee, the time of limitation begins to minable by their failure to comply with one of run, within *which they must either [*263 the alternative conditions contained in that act, come and settle in the state, etc., or enfeoff a is conclusive of this cause. That convention citizen. The policy of the legislature in preenables the citizens of both countries to dispose scribing this limitation was, that not more than by testimony, donation, or otherwise, of their ten years should elapse from the decease of the property, whether real or personal, situate in French proprietor, before the lands should the territories of either, to whomsoever they again be held and owned by a citizen, whose please; and to succeed as heirs ab intestato, interest it might be to cultivate and improve 266*] *without being naturalized.1 The first the same for the benefit of the community. It clause of the article gives a new power to dis- was, therefore, perfectly immaterial by what pose of property held by citizens of either technical mode of conveyance the property country in the dominions of the other, viz., the should be conveyed, and whether the seizin of power to dispose by testament or in any other the heirs should be a seizin in fact, or a legal manner. It, of course, repeals so much of the seizin. The conveyance might be by any suffiact of Maryland as restricts the power of dis- cient deed; and even a feoflment might be made posing to the mode of feoffment only, and not by an attorney, without obtaining actual posonly does not prescribe any period of time with-session. 3. The stipulation in the convention in which it is to be done, but necessarily gives | of 1800 does not, of itself, give to French citithe life-time of the party, since it allows a dis-zens property which they had not before, nor position by last will and testament, which can enlarge or alter their estates in the lands held only take effect after the death of the party. The second clause places the citizens of both countries in the same predicament as to inheritances as if they were naturalized. The defendants in error were, by the laws of the state, heirs to John Baptiste Chirac, subject to a liability to have their estate defeated unless they became naturalized. This clause superseded the necessity of naturalization, or, rather, naturalized them for this particular purpose. The further stipulation "that in case the laws of either of the two states should restrain strangers from the exercise of the rights of property with respect to real estate, such real estate may be sold, or otherwise disposed of, to citizens or inhabitants of the country where it may be," can only refer to the laws made by the two contracting parties, i. e., France and the United States; not any particular state of our domestic confederacy; for the states of the Union, as separate and independent sovereign267*] ties are not included. *No act of theirs could affect the convention. It is to them the supreme law; and no state law incompatible with it can be valid; therefore, that part of the act of Maryland which prescribes only one mode of disposing of real property belonging to Frenchmen is void. The treaty secures the right to dispose of it in any mode. 1. Art. 7th. by them. They must have been legally entitled 1.-1 Bac. Abr., Alien. Letter, c. 132, in Notis. Parker, 144; 5 Brown's Parl. Cas. 91; The Attorney-General v. Duplessis. |