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Decisions of the Superior Courts of New South Wales, 1788-1899

Raine and Ramsay v Piper [1825] NSWSupC 33

trover - tobacco - import duties - customs duties - excise - taxation - navigation laws - statutory interpretation - East India Company's monopoly - customary law

Supreme Court of New South Wales

Forbes C.J., 6 August 1825

Source: Australian, 11 August 1825


Mr. Wentworth stated that this was an action of trover brought by the plaintiffs, merchants of this town, against the defendant, for a recovery of the value of a certain quantity of tobacco, illegally detained by him, as Naval Officer.[1 ]

The defendant pleaded the general issue.

Dr. Wardell addressed the Court.  May it please your Honor, previous to my addressing the Gentlemen assessors, I wish to state in very cursory terms, a few legal points, which, probably, your Honor will deem so clear, as to decide upon them instanter, or rule, according to your opinion in summing up to the assessors.  If, in the event of your Honor not making up your mind so readily upon those points, then a verdict may be found for the plaintiffs, and those points reserved for a more full discussion.  There are four arguments upon which I intend to address the Court; and which we have considered sufficient to found the present proceedings upon.

The first argument is one arising from the Act of Parliament itself, as connected with the Proclamation, and as respects the manner in which the Governor has carried into effect that Act of Parliament.  The provisions of the Act, I shall contend, have not been all followed; and, therefore, what has been done in issuing Proclamations is of no effect.

The second argument is one arising from the Proclamation which has been recently issued - evidently having a tendency to claim for the Governor a power, which he does not possess; viz. a retrospective power.

The third argument is founded on the terms of the first Proclamation on the subject of duties, and is rendered necessary by getting rid of the last Proclamation.  The first Proclamation, I shall contend, is void on account of its uncertainty.

The fourth argument which I have to adduce, is stronger than all those I have mentioned; inasmuch as it will shew that the Governor has exceeded his authority, and assumed a power which really is not given by the Act of Parliament.

The Act of Parliament under which the Governor issued a Proclamation, dated the 4th of May, 1823; another dated the 4th of January, 1825, and that of the 31st of May, 1825, are founded on the 3 Geo. IV. c. 96.  The 3 Geo. IV. bestows power upon a Governor to impose certain duties; and also to create rules and regulations for levying those duties when fixed.  It will be observed, that the whole power given by that Act of Parliament, is a naked authority; and must, according to Lord Coke and all the law authorities, be strictly followed.  The Governor, under the second section of this Act, has imposed certain duties; but has made no arrangements for collecting and levying them.  He has appointed no person to demand the duties, created no penalty on refusing to pay them, and nominated no subordinate officers to carry into effect the various regulations, the provisions of the Act contemplated.  In fact, the whole of the second section in that Act of Parliament has been entirely untouched; for this reason the Governor has really, in fact, done nothing at all.  No one was appointed to demand the duties; and no one, therefore, could be called upon to pay them.  It was not said that Captain Piper should demand those duties, or that any other person should perform the part of a Commissioner of Customs, as Acts of Parliament have done which regulate the Excise and Customs of England; to these I only refer for the sake of analog

By these it will be seen that, in all Excise Laws and Custom Laws, it was necessary that some specific officer should be appointed to carry into effect each of the provisions in the Acts, and Commissioners appointed in a certain way, oaths prescribed, and a regular system established; unless this had been done it is clear that those regulations imposing duties, &c. could never have been carried into effect.  This Act of Parliament, under which the Governor has issued the Proclamations, in giving power to the Governor to impose duties, does not appoint officers and establish a system of itself, like the 12 Chas. II. and other Acts; but authorises the Governor to take all under his especial management and direction, and make such regulations as he shall deem most fitting; the Legislature supposed that the Governor being here would know better the nature of things, and that it was more adviseable to leave it with him, to make rules and regulations for levying duties.  But, when the Legislature gave that power to the Governor, they did not mean that it should be so far used discretionally, that he might do it or not do it, as he pleased; it was not meant that he should fulfil part of the terms only of the Act, and omit the fulfilling of any other part he chose.  As no rules and regulations have been made, it is evident that the Proclamation which has been issued is altogether void; and, in fact, that no duty has been imposed by the Governor on any goods imported whatever.

Again - the publication of the last Proclamation was evidently considered necessary, on account of the defectiveness of the former.  But this Proclamation, it is quite clear, cannot have effect, unless the Governor possesses the power of making an ex post facto law.  I shall not take an enlarged view of the law on this point.  The Act of Parliament requires the duties to be imposed upon importation, and in this respect agrees with the general law on that head; for Lord Bacon in his abridgement says "Under the word customs is comprised every duty which is to be paid upon the importation or exportation of goods, wares, or merchandize."  It is clear from this, that the law must be in existence upon the importation, as it is at no time contemplated that when they have been imported, any law shall be made affecting them.

By the 27. Geo. III. chap. 57, sec. 69, all goods delivered out of a vessel must have previously paid the duties; and, if landed without being fully paid, shall be forfeited.  But the accommodation given to persons to pay, at their convenience after importation, does not shew that a law may be made after importation.  If duties could be imposed after importation, it would give the power to the head of the Colony, to impose duties as he might think proper, and to suit the circumstances of any particular case; and from this alone may appear an argument sufficiently strong to shew that an ex post facto power ought not and cannot exist in the Governor of a Colony, or in a single individual, for imposing duties.  I shall next contend, as I did on a former occasion, on the point of uncertainty which renders the first Proclamation imposing duties void.  The Act states that a duty not exceeding such a sum be levied and raised upon such certain goods.  Now, the words of the Proclamation say, "Be it ordered and directed that these several and respective rates, and duties attach forthwith."  I contended on a former occasion, that the words had no meaning; inasmuch as any person might consider that any sum not exceeding "four shillings" might be demandable.  I shall now proceed to the last ground of argument, upon which alone I submit that this action may be completely supported.  I have hitherto contended that the Governor has not performed what is required of him; I will now proceed to shew that he has done a great deal more than he ought to have done; and imagined himself to be in possession of a power he does not possess - a power not given by the present Act of Parliament.  The words of that Act state very clearly, that no duties can be attached upon this tobacco, the subject of the present action.  The second section of the Act says, "that it shall be lawful for the Governor of New South Wales for the time being, to impose several rates and duties upon the importation of goods, spirits, merchandize, &c." including also tobacco imported directly from the United Kingdom of Great Britain, &c.  Now, I would ask, how has the tobacco been imported into this Colony?  Is it from Great Britain? if it be then it will be necessary to have recourse to the arguments formerly adduced.  But I shall be able to prove that the tobacco came from China.  Now, if it can be shewn by the other side, that China is in Great Britain, then it comes direct from Great Britain.  I think this argument will be found to be a tolerably good one; and here, therefore, I will leave it.  I will now just shortly state to the Gentlemen assessors those facts which it will be necessary to prove on this occasion.  First, that the plaintiffs are owners of the tobacco; second, the conversion of the tobacco; and thirdly, that this tobacco has not come direct from Great Britain.

It was here proposed by the Attorney-General, that on admissions made by both sides, a special case should be framed, and the Jury might find a verdict for the plaintiffs to the amount of the value of the tobacco, subject to the opinion of the Court at a future day, on the points of law.  A case was according made out, and evidence taken to ascertain the worth of the tobacco[.]

Mr. Walker, merchant, examined.  I have seen the tobacco, the subject of the present action, several times; know the quality, it is pretty good; the value of it on the 7th of May last I should suppose to be 4s. 2d. per lb. having sold a large quantity, about 3000 lbs. at that time, at 3s. 6d. per lb. without any reference to the alteration in the duties.

Mr. Wentworth.  It is a notorious fact, at that time, no duty whatever was paid on tobacco.

Solicitor General.  It was a system of smuggling.

Chief Justice.  I was surprised to hear that they were selling the tobacco at a lower rate than the duty itself.

Dr. Wardell.  Tobacco was sold as if there was no duty; the public never thought of such a thing as paying duty.

Mr. Walker.  If the tobacco had been in my own store, it would have been worth 3s. 6d. per lb. to have sold the whole quantity.

Cross-examined.  Tobacco sold at 3s. 6d. was on a supposition that the duty had been paid.  There was a large quantity of tobacco in the Bonded Stores in May last, on the old duty of sixpence per lb.  Tobacco was worth in the Bonded Stores, at that time, from sevenpence to eightpence per lb.

Re-examined.  In consequence of general impressions and rumours, the valued price of tobacco in May last was from 3s. 6d. to 4s. per lb.  Should not have been inclined to sell for less.  The whole quantity of 99,956 lb. might have been sold at 3s. 6d.; if sold in small quantities, would have fetched a trifle per lb. more.

By the Court.  The value of tobacco in the Bonded Stores was about 7d. per lb.; worth in private stores 4s. to 4s. 6d. per lb.

Mr. George Curlewis examined.  Is in the employment of Mr. Campbell, who is a large dealer in tobacco; from the 7th of May to the 30th, the average value of tobacco in the market was 4s. per lb.; the worth of tobacco, a short time previous, was much greater.  Is of opinion the whole quantity of the tobacco might have been sold in the market at 3s. 6d. per lb.  Mr. Campbell was selling at that time at 4s. the same quality of tobacco, negrohead, is now selling at 2s. 3d. per lb.

Cross-examined.  No person would have purchased the tobacco alluded to, on an understanding that a duty of 4s. per lb. would have to be paid on it.

Mr. Wentworth.  The question is immaterial, no person would be mad enough to pay 4s. for a duty, and afterwards sell the property for the same price.

Solicitor General.  The question is very material.  I contend that a party cannot sue for a loss which he has not sustained; because, in fact, after the duty, bona fide, had been paid, it would not have been worth any thing - it would only have fetched the amount of the duty.

Dr. Wardell.  The question is this, what would have been the worth of the tobacco at the time of conversion, if Captain Piper had given it up?

The Witness.  If the tobacco had been given up by Captain Piper when applied for and sold, I am of opinion, from the state of the markets, it would have fetched from 3s. 6d. to 4s. per lb.

Mr. Edw. Dobson, clerk to Messrs. Raine and Ramsay, examined.  The tobacco might have been sold on the 7th of May last at 3s. 6d. pet [sic] lb.; by disposing of it in small quantities would have fetched 4s.  The plaintiffs purchased 99,956 lbs. weight of negro-head tobacco, it was possible they would have met a ready sale for it at the time of purchase for 3s. 6d. per lb.; shag tobacco was worth, in the Bonded Stores, 15d. per lb.  The amount of the original worth of the tobacco was computed at £3008 18s.

Cross-examined.  In the event of no duty being on tobacco, the worth would be about 1s per lb. in trade.

Dr. Wardell.  May it please your Honor and Gentlemen Assessors - I have now closed my case in calling witnesses.  The only object in adducing evidence was in order to ascertain the value of the tobacco on the 7th of May last; and, with deference to the Court, I submit that a verdict ought to be framed on that fact, and must depend entirely upon the worth of the tobacco when the application was made for it to be given up.  Supposing the plaintiffs had had the tobacco in their possession, in their private stores, at that time, they might have sold it from 4s. to 4s. 6d. per lb. in small quantities, or altogether for 3s. 6d. per lb.  Valuing then the tobacco at the very lowest sum it was stated in evidence to be worth, it is certain the verdict of the Jury must be to the amount of 3s. 6d. per lb. at least.  The plaintiffs would have been able to have disposed of the whole quantity instanter at 3s. 6d. per lb. provided it had been given up when required.  This simple fact must guide the Assessors in their verdict; it is of no consequence how much tobacco there was in the country.  It was of no consequence what might have been the public opinions and impressions on one side, and the other, as regarded the intended alteration in the duties; these were entirely foreign to the present case.  Notwithstanding all such impressions and rumours, it has been deposed in evidence, that the tobacco would have sold at 3s. 6d. per lb.  The question as to the law of the case, with regard to there being a duty or no duty, will be hereafter decided.  We do contend that there was no duty on tobacco at the time when imported; and, that the tobacco, if delivered up to the plaintiffs by the defendant when applied for, would have fetched a sum of 3s. 6d. per lb. on the whole quantity.  The verdict of the Jury must therefore be accordingly.

Chief Justice - There appears to me to be a sufficient body of facts to let it go before the Court.  The value of the tobacco is a most material feature in this case.  I shall put the case to the Gentlemen assessors according to the impressions on my mind.  It appears from the admissions on either side, that a quantity of tobacco now in the Bonded Stores, by the importers, was purchased by the plaintiffs.  The tobacco was either liable to a duty of 4s. per lb. or not liable.  The question as to the liability of a duty, is a question hereafter to be decided.  I am by no means surprised that some little difficulty should occur in ascertaining the value of the tobacco.  It is a hard matter to conceive how the price of tobacco could rise in point of value from 7d. to 3s. 6d. per lb. by the mere act of removal from one store to another.  I shall put the case, however, to the assessors, with reference to the liability or non-liability of the duty on tobacco, that is a question hereafter to be raised; the only question with the Jury, is to consider the amount that they will find.

The Assessors then retired from the Court; on resuming their seats.

Chief Justice.  The Assessors have come to this conclusion: If a duty be not demandable by law, they find for the plaintiffs in the amount of 93,956 lbs. of negrohead tobacco, at 1s. per pound and 4,430 lbs. of shag tobacco, at 1s. 3d. per lb.



Source: Australian, 25 August 1825



This is an action of trover to recover the value of a quantity of tobacco detained in the King's Stores by the defendant, who acts as Naval Officer and Collector of the Revenue, as a security for the payment of certain duties.  A verdict for the plaintiffs has been taken by consent, subject to the opinion of the Court upon a special case, stated by the parties.  Before I give my opinion upon the points at issue, I will briefly review the leading facts of the case.  The plaintiffs are the proprietors of the tobacco, which is the subject of the present action; the defendant is Naval Officer of New South Wales - his appointment having been signified by a government order in 1814, and continued by his Excellency the present Governor, upon his assuming the administration of the colony.  Ever since his appointment the defendant has received the duties on all imported articles, there being no other officer acting in the receipt of customs - the Commissariat Officer in charge of the King's Stores where the tobacco is deposited, is the agent of the defendant.  Before the proclamation of March, 1823, there had been various orders issued by Governors for the time being, laying duties on imported tobacco and spirits; the last of these orders bears date the 31st March, 1813, and imposes a duty of ten shillings per gallon on all spirits, and sixpence per pound upon all tobacco, imported into New South Wales or its Dependencies.  On the 4th March, 1823, the Governor, in pursuance of the powers vested in him by the Act of Parliament, passed in the third year of his present Majesty, ordered and directed, that the several and respective rates and duties mentioned in the act should attach.  After this proclamation it became the practice for all importers of tobacco to deliver the same into the King's Stores, as a pledge for the payment of a duty of four shillings per pound, claimed by the defendant as Naval Officer, and understood by the importers to be payable by law.  The tobacco, which is the subject matter of this action, was delivered by the original importers into the King's Stores, pursuant to the said practice, and was there purchased by the plaintiffs, subject to such pledge as aforesaid.  On the 9th day of May last the plaintiffs demanded their tobacco, and the defendant refused to deliver it, unless the duty of four shillings per pound should first be paid.  Upon this refusal the plaintiffs have founded their action.

The right of property in the plaintiffs being admitted, and the right of possession, subject only to the disputed claim of the duty, the whole case resolves itself into the question, whether the duty demanded by the defendant is payable to him by law - a question very simple in its terms, but involving many nice and difficult points of law, upon which perhaps no opinion can be formed with such a degree of certainty as to exclude all admission of doubt.  The act of parliament on which the Governor's proclamation is founded, is capable of two distinct readings, which, in their application to the case before the Court, affect it in an opposite manner.  And the proclamation has not so entirely escaped the contagious influence of the act, but it has been thought to require the aid of a second proclamation to declare its intention and confirm its effect.  It becomes necessary therefore to look a little beyond the words themselves, to collect the intention of the legislature and the meaning of the Governor; and carrying these auxiliaries to the exposition of the disputed instruments, to come at their true intent and meaning.  To do this it will be necessary to take a retrospective view of the state of the trade, and the duties upon imported tobacco, before the passing of the act of parliament.

It has been stated, that previous to the 59th of Geo. 3. it was not lawful to import tobacco into this Colony from any place without the limits of the Company's Charter, excepting from the United Kingdom - but this is a mistake.  In the 54th year of his late Majesty, an act was passed, which made it lawful for any of his Majesty's subjects to trade from the United Kingdom, at any intermediate ports in North and South America, and there to take on board any goods or merchandize which might lawfully be carried from such intermediate countries to any place within the limits of the charter.  If there be any thing in the article of tobacco which excluded it from this Colony under the last mentioned act, it has escaped my search; I will therefore assume that tobacco might be imported from the Brazils, the great tobacco mart of this Colony, in the prosecution of a voyage from the United Kingdom.  On the 31st March, 1818, his Excelleney [sic] Governor Macquarie issued an order, directing the levy of sixpence per pound upon all imported tobacco.  It is not necessary to inquire how far this order was legal; it was thought necessary to fortify it with the authority of parliament.  The act 59 Geo. 3. ch. 14. is in these words, "it shall be lawful for the Governor of New South Wales to order and direct the levy of any rate or duty which may have been imposed or usually collected in New South Wales, previously to the passing of this act, and no other."  So stood the duties upon tobacco at the passing of the act 3 Geo. 4. ch. 96. the preamble of which is as follows: - "Whereas it is expedient that the said act" (the act just adverted to) "should be continued, and that further and additional provisions should be made for imposing and levying certain duties upon spirits and tobacco, and an ad valorem[2 ] duty upon all goods, wares and merchandizes, imported into the said Colony."  The duty upon tobacco before was limited to sixpence; but it was levyable upon all tobacco that might legally be imported from any place whatever.  The express intention of the new act is to impose a further and additional duty, and the Governor is accordingly authorised to impose a duty not exceeding four shillings per pound, on imported tobacco.  Now it cannot well be supposed to have been the intention of parliament to lay on this additional duty upon tobacco imported from the United Kingdom only, and to leave the duty upon importation from the Brazils and other parts of the world, where it was.  This would have amounted to a prohibition against importing tobacco from the United Kingdom, and would have been in direct opposition to the whole policy of the navigation laws.  It is a well known fact, and I feel myself authorised to allude to it, because it has frequently been the subject of judicial cognizance, and is so often recorded in the decision of courts as to become part of our maritime law, that parliament has been anxious to secure to the United Kingdom the exclusive commerce of her colonies - insomuch, that the trade of all the colonies, and of this among the rest, is at the present moment only a relaxed monopoly, and not an open trade.  I have dwelt the more upon the preamble of the act, because it appears to me to have an important bearing upon the true interpretation of the subsequent clauses.  The enacting part of the act proceeds as follows: - "From and after the passing of this act it shall be lawful for the Governor of New South Wales to impose by proclamation the several and respective rates and duties following - that is to say, upon the importation into the said Colony, or any of the settlements or dependencies thereof, or belonging thereto, or under the control or administration of the Governor, or person exercising the government of the said Colony or its dependencies, of all spirits, the produce of the United Kingdom, or rum, the produce of his Majesty's plantations in the West Indies, imported directly from the United Kingdom, a duty not exceeding the amount of ten shillings, and of all other spirits a duty not exceeding that of fifteen shillings upon each gallon of spirits so imported; and upon the importation of all tobacco, a duty not exceeding four shillings upon each pound weight so imported into the said Colony, &c."  Upon the words so imported a doubt has been raised, whether they refer to the last antecedent, imported directly from the United Kingdom, or to the preceding general words, importation into the said Colony or any of its dependencies.  The clause is certainly capable of being read either way, and according to the rules of correct drawing, the first interpretation would seem to be the most natural; and there have not been wanting strong reasons for considering that such interpretation might effect the intention of the legislature.  At the time of the passing of the act, it must be remembered the trade and commerce of this Colony were placed under his Majesty's control, to be regulated by order in council; and any goods or merchandize imported contrary to such order, were made liable to forfeiture (57. Geo. 3. ch. 1. continued by 1. Geo. 4. ch. 11.)  His Majesty, in pursuance of the power vested in him by the last mentioned act, might have prohibited the importation of tobacco and spirits from foreign ports altogether; and supposing an order in council to have gone to that extent, the clause under consideration could not have been in any other manner than as imposing a duty upon the importation of tobacco from the United Kingdom.  Had the present question arisen immediately after the passing of the act 3. Geo. 4. I should have felt great difficulty in coming to any conclusion, without being apprized of what might be the intention of government with respect to the power reserved to the crown.  It would have been but natural to suppose that the power of regulating the trade of this Colony, had been conferred for the purpose of being exercised; and until the order in council should have reached us, we were not in possession of the whole of the law upon the case.  I have not been able to learn, however, that any such order in council has ever been transmitted to this Colony, and from the order which was exhibited in Court by the Attorney General, it is to be presumed that no such order, as affects this Colony, has ever been made.  I may therefore now look at the act 3. Geo. 4. without reference to the outstanding power reserved to his Majesty of regulating the trade of this Colony. - Placing this power therefore out of the case, I am opinion [sic] that the second reading, which refers the words so imported, to the general words importation into the Colony, is more consistent with the intention of the legislature, and must therefore be adopted as the true reading of the clause under consideration.  The clause is divisible into three members, each comprising a distinct class or subject; the first relating to the importation of spirits; the second of tobacco; and the third of all other goods and merchandizes, not being produced in, and directly imported from, Great Britain.  The first class is subdivided into two species; viz. British spirits, and rum, the produce of the British plantation in the West Indies (imported directly from the United Kingdom) and all other spirits whatsoever, and howsoever imported into New South Wales or its dependencies.  The words in this clause, "and of all other spirits," have reference to importation into New South Wales; for between the words "and," and "of," there is an evident omission, and the words which are understood, are the words of general importation, which occur at the beginning of the clause - if the omitted words be supplied, the act will read thus, "and upon the importation into the said Colony, or any of its settlements or dependencies, of all other spirits, a duty not exceeding the amount of fifteen shillings upon each gallon of spirits so imported;" and the words so 'imported,' will then have reference to the last antecedent; viz, importation into the Colony.  That they will bear this construction I think must be admitted; they are to be found in other acts of parliament, and used in precisely the sense I have put upon them; and I think that this construction will be strengthened by applying it to the two following members of the clause, which relate to tobacco, and goods, wares, and merchandize in general.  Entertaining this opinion upon the act, I shall proceed to examine the objections which have been taken to the first proclamation of the Governor, issued in pursuance of the act; they are numerous, but they may be considered under two principal heads; - first, that the proclamation is void for uncertainty in not specifying the exact rates or duties which it intended to impose; secondly, that it is too imperfect to fill any purpose of the act.  Before I enter upon the consideration of these objections, I must express my assent to what is advanced by the plaintiffs Counsel, that the whole case must stand or fall with the proclamation of March, 1823.  If that proclamation be void for uncertainty or for any other cause, it was a dead letter ab initio,[3 ] and could not be raised up by any after act of the Governor; still less can any subsequent proclamation have a retroactive force, and attach upon goods actually brought into port, landed, and incorporated into the common stock and merchandize of the Colony, before the date of such proclamation.  Upon this point, however, I must confine myself to a simple declaration of my opinion, without going at length into the reasons upon which it is founded.  That the power of making retrospective laws resides in parliament, is too clear to be disputed; but it is equally clear that this transcendent power has been so sparingly resorted to, and is always guarded with such scrupulous care, that nothing short of the declared and unequivocal intention of parliament, could induce the Court to hold that it had delegated such a power to the discretionary exercise of the Governor.

Upon the first objection, the uncertainty of the proclamation, it is contended that the act 3 Geo. 4. was intended to authorise the Governor to fix a rate or duty, inter alia upon tobacco ---- that the act itself did not fix any precise rate, because the very object was to leave such rate at large, to be fixed or altered by the Governor, according as circumstances might require ---- that the Governor's proclamation simply recites the act, and then goes on to direct "that the several and respective rates and duties, as aforegoing, should forthwith attach."  What duties should attach?  Was it meant to be a duty of one shilling, or two shillings, or three shillings? for each of these rates is as much within the words of the act as four shillings.  This objection is certainly hard to get over, and had it been started immediately after the publication of the proclamation, I should have hesitated to say that by a duty not exceeding four shillings, was intended a duty of four shillings.  It is admitted by the plaintiffs that since the promulgation of the proclamation in March 1823, the practice has been general for the Naval Officer, as Collector of the Revenue, to demand the duty of four shillings per pound on imported tobacco; and, for all importers to deposit their tobacco as a pledge for the payment of such duty.  But it is contended that this amounts to a bare practice, and is founded on an erroneous impression of the law.  And cases have been cited to shew that the maxim, communis error facit jus,[4 ] cannot apply to a case like the present.  I certainly should be sorry, at any time, to be so straightened for reasons on which to rest my judgment, as to be compelled to resort to a vague maxim, incapable, perhaps, of any precise application.  And, if nothing better than a mere practice of two or three years standing in the Colony, could be adduced to impugn or control the clear expression of the law, I should not feel inclined to respect it.  But there is a distinction between a practice which is opposed to the positive words of a law, and a practice called in to explain the doubtful terms in which the law may be expressed; and this is the distinction taken by Lord Ellenborough, in the case cited at the bar.  Besides, in construing the proclamation before the court, I cannot shut out of consideration that it was issued at a time when the Governor had not the advantage of legal advisers, whose business was to frame the public acts of his government with that technical precision and accuracy, which professional habits only can give.  To apply the same strictness of interpretation to such an instrument, as if it were an act of parliament or even an order of his Majesty in council, would be alike inequitable, and contrary to the first rules of interpretation.  It was, I think, admitted by Doctor Wardell - I mean merely arguendo,[5 ] and not as an admission in the case - that he had no doubt the Governor intended to lay on a duty upon imported tobacco, and that His Excellency thought he had done so.  So too, thought the Collector of the Duties, and the importers of tobacco; and, if his Excellency did so intend, and if the public who have paid the duty for two years, have so interpreted the proclamation, it is rather difficult to say that such must not be considered as the true meaning of the Governor in adopting the words of the act of parliament into his proclamation, however untenable such meaning might be as applied to the act of parliament itself.  The intention of parties is the first thing to be regarded in the construction of all instruments, which do not contravene any positive law.  Words are only the signs or means, by which such intentions are communicated; and, where no rule of law is violated, and no public or private right is invaded, perhaps there is no standard to which we can refer for the meaning of words, more allowable and safe than common acceptation and ordinary use

---------------- usus,

Quem penes arbitrium est, et jus, et norma loquendi.[6 ]

If this argument fail in its force, it is where the party who may be affected by the proclamation, is a stranger to the interpretation which the common usage of the place has put upon it; but such, at least, is not the case of the plaintiffs; and, it is a circumstance which ought to have an important influence upon the decision, that they purchased the tobacco in the bonded stores, where it had been pledged by the importers for the payment of the duty which is now contested.  I do not say that this circumstance alone is conclusive upon them to pay the duty, but it relieves the case from every semblance of hardship; and enables me to pronounce my opinion upon a doubtful point, with a less painful anxiety than I should otherwise have felt.

Upon the second objection, namely, the imperfection, and its inadequacy to the objects of Parliament, I am of opinion that this objection has not been made out.  Undoubtedly it was necessary that every thing should be done, which was indispensable to the collection of the duty; and the importer would have a right to see that the officer who demanded the duty, was authorised to receive it.  Whatever might be the state of the duty itself, it would be a good defence to an action, that the person claiming it, could not give the party claiming it a sufficient discharge against future claims of the Crown.  But I do not understand how the absence of a code of rules and regulations for the collection of the duties, fines and penalties for non-payment, can relieve importers from the obligation they contract immediately on bringing dutiable goods into port.  The fact of importation created a debt to the Crown, which might be recovered in an action or information, independently of any penal responsibilities to which the parties might further be liable.  Neither do I feel the force of the objection which has been set up against the authority of the Naval Officer.  It is in evidence before the Court, that the defendant has been publicly recognised as the Naval Officer of this Colony; and, although I admit that his appointment should be made or confirmed, in some form or other, by the Governor, yet no particular form of appointment being directed, his having been proclaimed by the Governor in the public orders of the Colony, is in my opinion quite sufficient to clothe him with every authority which is necessary, either as Naval Officer under the navigation laws, or as collector of the revenue.  The defendant is, de facto, Naval Officer; and, independently of the proclamation of Governors for the time being, directing him to collect all duties upon articles imported into the Colony, he is expressly invested by stat. 7th and 8th of William 3. chap. 22. with the same power of securing dutiable goods imported into New South Wales, as are given the officers of his Majesty's revenue in England.

I have now, I believe, gone through every material objection which has been raised in this important case - important, as leading a class of cases which involve a large amount of property - and still more important, as it respects the public revenue.  In the view that I have taken of the act of parliament, and his Excellency's first proclamation, it has been rendered unnecessary for me to follow the various points of law which, under a different view of the case, have been drawn into the discussion; but I cannot close my judgment, without expressing the satisfaction I felt in listening to the clear, close, and logical arguments of the Bar.

Postea to the defendant.[7 ]



[1 ] This trial was reported by the Sydney Gazette on 11 August 1825.

The other tobacco cases at this time were R. v. James, May 1825; and James v. Balcombe, August 1825.  In the footnote to James v. Balcombe there is a reference to another case as well, Raine and Ramsay v. Balcombe.  See Sydney Gazette, 11 August 1825 for commentary, the editor arguing that the duties were lawfully due.  He described the plaintiff's case as being ``pregnant with imbecility".  He also said that the plaintiffs were attempting to recover duty even though the public had already reimbursed them for it.

[2 ] According to the value, that is, sliding scale.

[3 ] From the beginning.

[4 ] Common error sometimes passes as law.

[5 ] In arguing.

[6 ] Usage, in whose power is judgement, and right (or justice), and the rule of speech.

[7 ] Literally, "afterwards"; the return of a trial judge, after the verdict, of what was done in the cause.  See Sydney Gazette, 18 August 1825 for a report of the arguments of the counsel for each side; and see 25 August 1825 for its version of the judgment, and for commentary.  The Gazette said that Forbes C.J. praised the arguments of the counsel for the defendant, rather than the bar generally, and concluded ``Verdict for the Defendant".

Published by the Division of Law, Macquarie University