Federal Register vol 23 (Circuit and District Court Cases) March-June 1885, pp 367-397: “Three Thousand Eight Hundred and Eighty Boxes of Opium v United States” Circuit Court D, California, September 20 1883
Information in rem to Condemn Smuggled Opium. Philip Teare US Atty and AP Van Duzer Asst US Atty for libelant W 11 L Barnes and George W Towle Jr for claimant
[This is Judge Sawyer’s summary of 2,500 pages of testimony. His rather clumsy writing style is excused by his diligence in plowing through so many documents]
(p 368) On the night of January 3-4, 1882, the steam-ship City of Tokio was lying at the outer end of the Pacific Mail Steam-ship Company's wharf, extending from the foot of First street, in the city of San Francisco into the bay in a southerly direction on the easterly side of the wharf. She had arrived from Hong Kong, China, and been docked on December 25, 1881 or nine days previously. The steam-ship City of Sydney was at the same time lying at the same wharf on the westerly side, directly opposite the City of Tokio. The City of Sydney runs between San Francisco and Australia, stopping each way at Honolulu in the Sandwich [Hawaiian] islands. She was, at the time, advertised to leave for Australia on January 14, 1882 or 10 days later. A few minutes after midnight, not to exceed from 5 to 15 minutes, police officers Egan and Smith, patrolling the harbor, were going down the bay in a boat from Folsom-street wharf towards the Pacific Mail wharf and, when a short distance from the end of Beale-street wharf, at about the point marked on the diagram annexed to the findings, they saw a whitehall boat about 300 yards distant near the steam ship City of Tokio, between them and the steam-ship, not at the side of the ship and nor in contact with it, but a short distance off, pulling with muffled oars in a southerly direction past the stern of the steamer. The boat, when discovered, was probably not less than 50, nor more than 150, feet distant from the ship. At first they thought it was the government lookout boat, but as soon as it had passed the stern of the Tokio, they saw it was not and gave chase. The boat pulled southerly for some distance, and then turned in on the westerly side of the wharf, where it was met by the officers somewhere between the City of Sydney and the slips of the Central Pacific Railroad's transfer steamers, as it had changed its course. The diagram shows the situation of the wharves and steamers. In the boat were the claimant, James K. Kennedy, and a boatman named McDermot. Egan says he asked what they had and “they said they did not know.” Egan then jumped into the boat and put irons on the men, ironing them together. Egan says they were very much excited and that one of them said: “Good God, you are not going to arrest us. We are men of families. Take the stuff and let us go,” that “they would land anywhere and give up the stuff;” that we could “keep the boat and all that was in it and let them go. It would do no good to arrest them.”
However, Egan and Smith did not let Kennedy and McDermott go. Claiming to have refused a series of very large bribes, they called in agents of the U. S. Customs Service.
(p 369) . . . After being placed upon the wharf, the packages were again counted. There were found to be 97 square packages, weighing 20 pounds each, carefully wrapped in Chinese matting, sewed with twine, and neatly tied or strapped with bamboo splints, in the usual mode of strapping packages of merchandise by the Chinese. Each package contained two soldered tin boxes or cans, the cans being new, weighing 10 pounds each; each can containing 20 small brass boxes; each small box containing one half pound, or five taels, of prepared opium, labeled with Chinese labels, presenting the same general appearance in all respects as the prepared opium regularly imported from China through the custom-house, except that none of the half pound or five tael boxes had United States revenue stamps upon them, the whole amounting to 8,880 boxes. Three like packages, doubtless containing 120 like boxes each, had been thrown overboard. Thus the boat, at the time of the capture, contained 100 packages, or 2,000 pounds, or 20,000 taels, of prepared opium valued at about $20,000 to $25,000, as claimed by the United States attorney. There were also found two rolls of silk. .
Customs seized the whole cargo. Subsequently, Kennedy, unhappy at losing so much money, sued in federal court to demand the return of the opium. The big question for Judge Sawyer: were the packages being smuggled into the US, as the government claimed, or were they outward bound for the then-independent kingdom of Hawaii, where opium for smoking, sold in contravention of Hawaiian but not American law, fetched an astronomical price? Kennedy’s attorney produced much evidence showing that the cargo was going (quite legally under American law) from San Francisco to Hawaii, not (illegally) from Hong Kong to San Francisco. Some of the more persuasive evidence, as summarized by the judge:
(p 371-2) One B. K. Sheridan, owner of an express wagon, testified on behalf of claimant that on the evening of January 3d, he hauled two loads of packages like those seized, making about 100 in all, from the store of Tai Hung & Co., a Chinese mercantile firm, No. 1014 Dupont street, for James K. Kennedy, the claimant, to the foot of Main street . . He stated the facts in detail and minutely. He said by previous arrangement he went to 1014 Dupont street, arriving a little after 7 pm where he found claimant James K Kennedy waiting on the sidewalk; that he had a covered wagon; that a Chinaman Choy Lum assisted by another brought the packages out and he arranged them in the wagon; that after putting in his wagon about 50 packages, he judged, without counting them, Kennedy got on the seat with him and he drove to the water front at the foot of Main street at the corner of the Bryant street front a few feet from a small building supposed to be the wharfinger's office where he passed the packages out to Kennedy who lowered them down by a rope and hook on it to somebody in a boat. . .
(p 373) Upon opening the tin boxes of the seized opium wrapped in matting, each large tin box was found to contain pieces of San Francisco newspapers of recent dates,--dates so late that it is impossible that they should have been put in in China. They must therefore have been put in either on shore in San Francisco or on the steamer after her arrival at San Francisco, and the tin covers afterwards soldered on and the cans then packed in malting, sewed and bound. The tins were old but the covers new and newly soldered. There are two factories at Hong Kong, as shown by the evidence ,manufacturing opium: one known as Lai Yuen and the other Fook Loong. The opium seized is put up like these two brands of opium, in similar boxes with apparently similar labels, either genuine or attempted imitations of the genuine labels. The smoking opium made at those factories is manufactured of India or Patna opium. The evidence points to no other or kinds of opium made in Hong Kong. (However) “Considerable quantities of smoking opium have been and still are manufactured at San Francisco and the eastern states. The smoking opium made in San Francisco and in eastern states is made entirely from Turkish or gum opium. The Turkish or gum opium contains a much larger proportion of morphine than Patna opium. The prepared opium manufactured in the United States is put up labeled so as to resemble prepared opium imported from Hong Kong, and is often put up in old boxes of the im ported article. Imported opium is required by law to be stamped but it is not necessary to stamp domestic opium. The government, however, furnishes stamps expressly prepared the purpose, on application, for domestic opium, and these are frequently but not always used as a convenient mode of protection from suspicion and annoyance. The laws of the Sandwich [Hawai’ian] islands absolutely prohibit the importation of opium except by the board of health for medicinal purposes under heavy penalties and even make it a penal offense to have it in possession except for medicinal purposes under clearly defined regulations. Opium duty paid at San Francisco was worth $12.50 to $12.75 per pound and would sell in Honolulu for from $25 to $30 per pound and sometimes even higher, even at times as high as $60. Hong Kong opium is higher in San Francisco than domestic opium. . .
(p 375) Various tests were made in the district court by experts to determine the character of the opium seized. Mun Tong examined nine boxes by applying smoking and burning tests. Of these, four were Hong Kong boxes, furnished by the government, and five were taken by permission of the government from the seized opium. In every instance he distinguished the seized from the imported opium, and declared that the seized was domestic opium. He was afterwards put to a severe test before Commissioner Hoffman. Sixteen boxes, each being carefully wrapped so as to conceal the labels and boxes and leave nothing but the opium exposed, were tested. Ten of them were of the seized opium; five genuine Hong Kong opium, furnished by the custom-house; and one of admitted San Francisco manufacture, not of the seized lot. The test occupied several hours, three separate smokes being taken from each box making 48 smokes in all. He determined 15 out of the 16 declaring which was domestic and which was Hong Kong, and only failed on one. Chow Suey also made several successful tests in the same way. Some other witnesses making similar tests were not so successful, making mistakes both ways, their testimony being about as favorable to one side as to the other. So also 20 boxes of the seized opium were selected at random and marked, and 20 of the imported furnished by the custom-house selected and marked. They were placed promiscuously on the table, and up so as to expose the top only. The Chinese experts rapidly selected and separated the Hong Kong from the seized opium without a single mistake in the 40 boxes, claiming to detect them by the difference in the labels, the imitations not being close. A similar successful selection was made by arranging them so as to expose the side labels only. Mr Van Duzer, the assistant United States attorney, also separated them by the appearance of the boxes and labels claiming that he did it from the newer appearance of the labels in the seized lot. Mr Van Duzer, in his printed brief, says: “I relied on the new appearance of the labels and boxes and had no difficulty in segregating them.” If so, this would indicate that the labels had been recently put on here or on the way and had not been much handled, thus tending to support claimant's theory. It would seem to be something of a feat to secretly paste three labels on each one of 4,000 boxes necessary to be concealed during the voyage from China, or during the nine days while the steamer lay at the wharf, with three government searchers--unless acting in concert with the smugglers--on the watch, and afterwards pack them and solder them up in 200 larger tin cans containing the late newspapers and then pack them in matting such as the packages were when seized. The seized opium was packed in old 10 pound tins, with new covers
(p 376) soldered on. The several searching officers on the Tokio testified that, in their opinion, it was not possible for a ton of opium to be concealed on the Tokio, taken out of its place of concealment, and soldered up on the Tokio during the time that ship was in port, without being discovered; that was no place on the Tokio where the soldering could be done without discovery; that fires were not permitted on the Tokio while in port; and that it would be impossible to carry the large tin cans used aboard the ship without discovery, there being officers men and watchmen at all times on the deck and the ship. . .
Choy Suey and Choy Lum then testify that they did indeed prepare the shipment in San Francisco, ready to go onto the City of Sydney. As for the claimant:
(p 378) Kennedy testifies that he bought all this opium through Tai Hung & Co., at 1014 Dupont street, in five different lots of 400 pounds each, at five different times through the month of December, 1881; that he did not know of whom Tai Hung & Co. purchased the first lot till after it was purchased, but he then ascertained that it was purchased of Hop Kee & Co., another Chinese firm, and that when the subsequent orders were given to Tai Hung & Co., he knew they expected to get it of Hop Kee & Co.; that Tai Hung & Co. bought it in large packages, packed the opium in small boxes, labeled it, then put it up in larger cans, and then in packages, as it was found when seized, in accordance with his instructions; that he purchased of Tai Hung & Co because he could get it fixed there just as he wanted it, and he only knew Hop Kee by reputation; that he furnished the newspapers (p 379) and had them put in the large tins to keep the small tins from rattling and also to have it as evidence in case he should want it. These newspapers all bore date so late that it was impossible that they could have been put in before the steamer arrived at San Francisco, some of them bearing date the day before the arrival of the steamer; that he did not know there was a private stencil mark of Tai Hung & Co on the back of the label as it afterwards appeared there was, on each box.
(p 379). . . In corroboration of Kennedy, Choy Lum testified that he had for over three years been a merchant, dealing in opium, dry goods, and general merchandise at No. 1014 Dupont street; that he was a member of the firm of Tai Hung & Co., composed of himself and his brother Choy Suey; that on December 2, 1881, he sold to the claimant, Kennedy, 4,000 taels domestic opium-- that is opium called gum or Turkish opium, prepared in he United States; that he bought it of Hop Kee & Co.; that when he bought it, it was put up in large tins like coal-oil cans, containing 200 taels each; that Kennedy directed him to put it up in small tins containing 5 taels each and then to put them up in 100-tael tins, or 20 small 5-tael boxes in 1 tin; that he put them up as directed, using old boxes from which he soaked and rubbed off the labels, and put on new ones, and put 20 of the small 5-tael boxes in 1 tin can; that one Ah Hock, a Chinese tinsmith, soldered on the covers; that he cut the covers out of new tin himself; that he packed two of the large tins together in Chinese matting, sewed the matting, and then tied it with bamboo splints; that by the direction of Kennedy be put pieces of newspapers furnished by him in each large tin. . .
(p 380) . . . after putting the opium in five tael boxes he put on the labels, some in imitation of Lai Yuen and some of Fook Loong; that he also put the labels on the 2,000 taels bought of Tuck Kee, which had been put up in five- tael boxes before he purchased it but had not been labeled. The labels consist of two red labels and one white one, corresponding in width and length with the sides of the box to which it is attached, put on three sides of the five-tael boxes. He testifies that he had stamped on the back of the label on each--on the side pasted next to the box near the bottom--the words “San Francisco,” in printed letters. In reply to a question by the United States attorney he said he had the stamp with which he so stamped the labels at his store, and he could produce it. By direction of the United States attorney he produced in the afternoon a piece of India rubber with the words San Francisco formed on it with materials for stamping, and stamped with it similar labels produced by him. Upon moistening the labels on the boxes seized in question and turning them up, each label was found to be stamped, as Choy Lum said it was, with the words “San Francisco,” exactly like the one made with the India rubber stamp produced. So, also, the genuine Lai Yuen and Fook Loong opium boxes produced in evidence have each impressed upon it a peculiar Chinese character, about one half an inch wide by three quarters long, a little longer on the Fook Loong than on the Lai Yuen, stamped with a die in the tin cover of the box
The seized opium outer tins had similar stamps, apparently corresponding generally with the respective stamps of the kind of opium represented. Choy Lum presented two steel dies, exactly corresponding with the dies used in stamping the seized opium outer tins, with which he said he stamped those tins. He stamped pieces of tin with them when testifying, which were put in evidence. An engraver was examined, who used a magnifying glass to inspect the stamps, and he measured the respective impressions, and pointed out very marked differences between the impression on the seized opium tins and those made by the dies produced corresponding with them and those on the genuine opium, showing that those on the seized were not the genuine stamps of the manufactory. So, also, Choy Lum stated the labels on the seized opium were not the same. There were decided differences in the characters, though generally resembling each other in appearance; and there were also differences in the shades of the paper, the red Chinese paper being brighter, and the white lighter, than that used here. He also produced wooden engraved blocks upon which many of the labels on the seized opium were to have been printed, and labels were printed from them corresponding with those on the tins. He testified that similar labels were printed here in large numbers, and his testimony was corroborated by printers who had printed for him and others.
(p 381) . . . Upon cross examination and demand of the United States attorney, Choy Lum hunted up and brought into court what purported to be the receipted bills for the five lots of opium claimed to have been purchased from Hop Kee and of one lot of Tuck Kee, which corresponded in dates and all other particulars with the facts as before testified to by Choy Lum. They appeared on their face to be in all particulars bills made in the regular course of business, with nothing intrinsic in the papers, or the testimony of the witness in regard to them, to throw discredit on them. The following is an example as translated in the evidence
“Tai Hung & Co., bought of Hop Kee & Co., domestic opium, 4,000 taels, $0.85 a tael “Rec’d pavment in full. “Dated December 4, 1881. [Stamped] “Hop Kee & Co.”
. . . And Wy Noon of the firm Tuck Kee, testified that his business was the manufacture of domestic opium; that on December 26th he sold to Tai Hung & Co. 2,000 taels opium prepared by him, put up in five-tael boxes, without he labels on the boxes; that he made it of Turkish opium bought of Downing & Son, 14 Second street, San Francisco; and a bill bearing date December 26, 1881, was produced by Tai Hung & Co., which he stated was the same bill delivered at the time. It was proved beyond all ground for controversy that Hop Kee Co had a manufactory of prepared opium at Newark New Jersey prior to 1880, which was closed up about the last of December 1879 or first of January 1880 and I so find the fact to be. This appears by uncontradicted evidence as well as by reports of the United States revenue officers of that district.
(p 397) After several more witnesses had testified, often at length, the judge concluded the summary on which he would base his decision. Astonishingly, that decision was to set aside all of the above testimony, although he accepted it as probably true because it still involved some element of doubt. He concluded that the claimant could not prove beyond any doubt that the opium was not smuggled into the US and that therefore all of the opium was “condemned as forfeited.”
Later, the opium was presumably sold by the Customs Service at auction in San Francisco. As was customary, the proceeds of the sale would have gone to the local Customs office; it is not clear whether the police who made the initial seizure were entitled to part of the proceeds.