Legal Papers of John Adams, volume 2
Union
In this forfeiture proceeding, as in Folger v. The Cornelia, No. 45, Adams argued in favor of the power of an inferior officer of the customs to seize a vessel. In this case, however, he was defending the interests of an officer appointed by the Commissioners of Customs. On 12 May 1769 Jonathan Sewall had filed a libel against the brigantine Union in behalf of John Butler, tide surveyor in the port of Salem, who had earlier seized the vessel at Marblehead. Claimants were cited to appear on 22 May, at which time an exception attacking Butler's authority was evidently filed, and the case continued for argument.1
On 22 June the Commissioners directed their solicitor “to engage Mr. Adams and Mr. Quincy to assist the Advocate General in supporting the Libel” against the Union. This action is doubtless accounted for by the fact that, from 24 June to 12 July, Sew all was on a trip to Halifax, the seat of his new jurisdiction as Judge of Admiralty.2 The trial was probably held during Sewall's absence, because Adams' minutes, printed below, do not mention the Advocate General and indicate that Adams himself argued the case for Butler. James Otis appeared for the claimants.
Butler had been commissioned by the American Commissioners of Customs without warrant from the Treasury. By statute, only the Commissioners themselves, “officers of his majesty's customs for the time being,” or others appointed by Crown or Treasury, could make a valid seizure.3 Adams argued first that Butler was de jure an “officer of his majesty's customs” because the American Commissioners had by statute and commission all the powers of their English counterparts to appoint such officers. His second point was that, by statute, exercise of office made Butler a de facto “officer” regardless of his commission. Despite these arguments, the libel was dismissed, presumably on the theory that the seizure was void because Butler lacked authority.4
Although the statutes and other instruments involved are ambiguous, there are reasonable grounds for such a result. The statute establishing the colonial customs system had provided that “officers of the customs” should be appointed by the Treasury and the Commissioners.5 It had long been the rule for the English Commissioners to make such appointments only upon warrant from the Treasury, a practice which the patent of the American 220Commissioners confirmed.6 It was thus sound construction to hold that the “officers of his majesty's customs” empowered to make seizures were only those officers appointed upon warrant.7 If this view were adopted, the portion of the Commissioners' patent cited by Adams which gave their lesser employees power to enter vessels and premises “to Search and Survey” and do all other necessary acts “agreable to the Laws and Statutes relating to the said Revenues,”8 would be expressly limited by the statutory provisions to powers other than that of making seizure. Insofar as Butler's commission gave him such a power, it would thus be void.
The question of Butler's statutory de facto authority was controlled by the holding in Folger v. The Cornelia that the statutes in question created only a presumption, which could be rebutted by evidence of lack of authority. The principles of that case, which had concerned an officer friendly to local mercantile interests, thus seem to have been applied evenhandedly where the officer was loyal to the Crown.9
Butler v. The Union, Vice Adm. Min. Bk., 12 May 1769; Massachusetts Gazette, 18 May 1769, p. 1, col. 3. The Union was seized for an alleged unloading of molasses before entry on a former voyage in March 1768. On learning of the seizure the Commissioners directed that she be libeled in Butler's name and that prosecutions be commenced against her master, Edward Hales, and one John Gary, for aiding in the unloading contrary to 4 Geo. 3, c. 15, §37, the act under which Hancock was prosecuted. See No. 46, notes id. at 63–64, 227–234, 241–242; note 17
below. See also Salem Custom House Letter Book Outwards, 1772–1775, 9 Jan. 1775, Office of the U.S. Collector of Customs, Boston, Mass.
Minutes of the Commissioners, 22 June 1769, 7 Bowdoin-Temple MSS 180, MHi. It is not clear whether the reference was to Samuel or Josiah Quincy Jr. Sewall voyaged to Halifax and back aboard the Rose, the vessel involved in Rex v. Corbet, No. 56, which at this time was engaged in removing a portion of the British garrison from Boston. Boston News-Letter, 22 June 1769, p. 2, col. 1; Massachusetts Gazette, 13 July 1769, p. 1, col. 2. See “A Journal of the Times,” 25, 29 June 1769, Dickerson, Boston under Military Rule
112–113.
Vice Adm. Min. Bk., 12 May 1769. Dismissal suggests a disposition on such a preliminary question. See Folger v. The Cornelia, No. 45, Doc. III, where the information was dismissed in a case similar to that here. Likewise, in Dawson v. The Dolphin, No. 51, Doc. II, the libel was dismissed on the ground that it did not state a cause of action. Compare Dawson v. Lighter and Molasses, cited in No. 47, note
See text at note
See note English Customs
195–198. Failure to remedy this lack of control over appointments was a major error in the creation of the American Board which led to much of its later difficulty. Clark, “The American Board of Customs,” 45
AHR
777, 795–797. The one major exception to this practice was the commissioning of naval personnel as customs officers. See Hoon, English Customs
272. In a case in the Massachusetts Vice Admiralty Court in 1763, with Auchmuty as Advocate General, counsel for the claimants of a vessel seized by an officer of the navy had argued that the statute's conjunction of Treasury and Commissioners required a warrant. Nevertheless, the vessel was condemned. Bishop v. The Freemason, Quincy, Reports
387 (Mass. Vice Adm., 1763). On appeal in the High Court of Admiralty, it seems to have been argued that there was a standing order from the Treasury authorizing such commissions. The condemnation was affirmed without comment on this point. The Freemason v. Bishop, Burrell 55, 167 Eng. Rep. 469 (High Ct. Adm., 1767). See No. 51, note 1; No. 52, note 5.
This was the English interpretation. Hoon, English Customs
195. Apparently, however, the need for securing seizures sometimes caused the rule to be overlooked in practice. Id. at 198, 271–272.
See note
No. 45, Doc. III. In Nov. 1772 Butler was allowed to join in the successful prosecution of a vessel which he had seized under the direction of the Collector. Commissioners to Salem Customs Officers, 30 Nov., 14 Dec. 1772, Salem Letter Book Inwards, 1772–1775. The authority to seize in this case was undoubtedly the Collector's.
1769-07
14. Car. 2d, c. 11, §.15. Seizures confined to Officers of his Majestys Customs, for the Time being.2
2217. & 8. W. 3, c. 22, §. 6. Officers in America the same Power.3§.n. Treasury, and Commissioners may constitute such and so many officers of the Customs in any Port &c., when and as often as to them shall seem needfull.4
7. G. 3. American Commissioners vested with such Powers as are now exercised by Commissioners in England by Laws in being. May be put under the Management and direction of Commissioners. Expressly any 3 of em to have the same Powers with Commissioners in England.5
Commission. 2d. page. All the Powers expressly given that were exercised by the Commissioners in England, and particularly to constitute Inferiour officers in any Ports.6 4. page. Other Officers, Power to enter Houses, and ships, and do all Things agreeable to Law.7
222Butlers Commission. Full Power to search and seize.8 6. G. 1, c. 21, §.25. 11. G. 1, c. 30, §.22. Evidence of Officers Authority as of a Fact.9
Mr. Otis. Common Practice, for the principal Officers of the Port to seize, not for the Inferiour Officers to seize.
King cant erect new Courts. They must be established by Act of Parliament. Therefore if the Powers in the Commission exceed the Act, they are void.
Q. whether within the Acts, Butler can seize. By the Act of C
Commissioners Commission. Inferiour Officers. No Warrant from the Treasurer. No Authority without.
Is he constituted by the Treasury and Customs in England.
No such officer has ever done ay11 one Thing about the Custom
In JA's hand. Adams Papers, Microfilms, Reel No. 185. The material to note 18 below is on a separate page.
13 & 14 Car. 2, c. 11, §15 (1662), set out in No. 45, note
7 & 8 Will. 3, c. 22, §6 (1696), set out in No. 44, notes
7 & 8 Will. 3, c. 22, §11 (1696), set out inNo. 45, note
7 Geo. 3, c. 41 (1767), the act creating the American Board of Customs Commissioners, set out in No. 45, note
Commission of the American Board, 12 Sept. 1767, Book of Commissions, 1677–1774, fols. 83–92, at 84–85, M-Ar.: “And we do hereby give and grant unto you our said Commissioners during our pleasure as aforesaid or to any three or more of you full power and authority to cause to be duly observed and executed within the Limits of this your Commission [i.e. the geographical limits] all and singular the Laws and Statutes and all and every the powers, directions and Clauses in them or any of them contained touching or concerning the Collecting, Levying, receiving or Securing any of the said Duties hereby committed to your charge, and to do or cause to be done all other matters and things whatsoever touching or relating to the Revenues and Trade of the British Colonies in America within the Limits aforesaid as were before the passing of the said Act [i.e. 7 Geo. 3, c. 41] Exercised by the Commissioners of the Customs in England by virtue of any Act or Acts of Parliament in force at the time of the passing thereof. And we do hereby further impower and authorize you our said Commissioners or any three or more of you from time to time to Constitute and appoint by any writing under your hands and Seals or under the hands and seals of any three or more of you Inferior officers in all and singular the ports within the Limits of this your Commission (other than such officers as are or may be Constituted by Letters Patent of us our Heirs and Successors) according to such warrants as you shall from time to time receive from the Commissioners of our Treasury or our High Treasurer for the time being, and at such salaries as by the said Warrants shall be directed, and them from time to time to suspend, remove and displace as to you our said Commissioners or any three or more of you shall be thought necessary and expedient to our service in the premises.”
JA's page references, here and at note
Commission, fols. 86–87: “We have further given and Granted, and by these presents do give and Grant unto you our said Commissioners or any three or more of you, and to all and every the Collectors, Deputy Collectors, Ministers, Servants and other officers serving and attending in all and every the ports or other places within the limits of this your Commission aforesaid,” power “as well by night as by day to enter and go on Board any Ship, Boat or other Vessel . . . to Search and Survey and the persons therein being strictly to Examine touching or concerning the premises, and also in the daytime to enter and go into any House, Warehouse, Shop, Cellar and other place where any Goods, Wares or Merchandizes lye concealed or are suspected to lye concealed whereof the Customs and other Duties have not been or shall not be duly paid . . . and the said House, Warehouse, Shop, Cellar and other place to Search and Survey, and all and every the Trunks, Chests, Boxes and packs then and there found to break open and to do all and every other the matters and things which shall be found necessary for our service in such Cases and agreable to the Laws and Statutes relating to the said Revenues.”
Butler's commission as Tide Surveyor, dated 22 Aug. 1768, was in a standard form conveying powers to enter ships and, with a writ of assistance, buildings, to search for prohibited goods, “and the same to seize to his Majesty's use.” Salem Record Book, 1763–1772, p. 67. See also his instructions, 23 Aug. 1768, which deal with his authority to board vessels and “rummage” cargo, but contain no express power to seize. Id. at 68. There is no notation that this Commission was sworn, although it is clear (note 1 above) that Butler acted as Tide Surveyor. No objection on this point seems to have been made at the trial. If it had been, Butler might have been held to have seized under his earlier commission as “Customs Officer,” which conveyed the same powers. Id. at 63–64.
The correct citations are 6 Geo. 1, c. 21, §24 (1719), and 11 Geo. 1, c. 30, §32 (1724). These statutes provided that in trial upon forfeitures, penalties, and other matters relating to the customs, proof of the actual exercise of office at the time in controversy was sufficient to create a rebuttable presumption that the officer was authorized. They are set out in No. 45, notes id., text at note
That is, 13 & 14 Car. 2, c. 11, §15, note
Thus in MS. Perhaps JA started to write “any thing.” This sentence is in a thicker ink and appears more hurriedly written.