Melville Fuller

“ If the intention had been to change the common-law rule, the words 'under protest' would have been stricken out, and it seems to me a most dangerous and wholly inadmissible rule of construction to treat them as accidentally retained traces of something that had ceased to be. The words 'at or before the payment' were omitted, but, as already said, these were merely declaratory and redundant, and that was undoubtedly the reason of the omission. ”

“ Indeed, section 3011, as it now stands, is unambiguous on its face, and does not call for construction, unless in respect of the character of the protest; and that need not be considered, as the finding of facts must be taken to mean that no protest at all was made at the time these duties were paid, and the pieces of iron obtained by the importer. I cannot accept the conclusion that under this act the importer can recover on a payment not made under duress, and think that such duress cannot be said to exist, in the absence of any objection to making the payment. ”

“ In the revision of 1873-74, section 3011 read as follows: 'Any person who shall have made payment under protest, and in order to obtain possession of merchandise imported for him, to any collector, or person acting as collector, of any money as duties, when such amount of duties was not, or was not wholly, authorized by law, may maintain an action in the nature of an action at law, which shall be triable by jury, to ascertain the validity of such demand and payment of duties, and to recover back any excess so paid. ”