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Browsing: Legal Papers of John Adams, Volume 2

Thomas Hutchinson's Draft of a Writ of Assistance -

[1761-12]
Know ye that whereas in and by an ...

Adams' Minutes of the Testimony -

[1768-03]
James Athern Esqr. ...

Editorial Note

In this, Adams' earliest known appearance in an Admiralty action for a violation of the Acts of Trade, he and James Otis argued for Timothy Folger, Searcher and Preventive Officer at Nantucket. The lawyers were not engaged on the side of royal authority, however. Folger was a native of the island, sympathetic to Massachusetts mercantile interests. Arrayed against him were the customs officers of the port of Boston, backed by the newly created American Board of Customs Commissioners.
The Boston customs establishment, like that in other English and colonial ports, was under the joint control of a Collector and a Comptroller. Until 1767 these officers were appointed by the Commissioners of Customs in England,1 and were responsible to John Temple, Surveyor General of the Customs for the Northern District, also an appointee of the Com• {p. 148} missioners. Temple was empowered to exercise disciplinary control over inferior officers and add his efforts to theirs in the control of illicit trade throughout the northern colonies. Acting in this capacity, he had commissioned Folger to serve at Nantucket in 1764.2
The Boston officers, Joseph Harrison, Collector, and Benjamin Hallowell, Comptroller, later claimed that they had always disapproved of Folger's position,3 and there is reason to believe that this claim was not entirely the product of hindsight. In the first place, there was a serious legal question whether Temple had power to appoint such an officer. Secondly, on a more immediate level, Nantucket was traditionally within the port of Boston, so that Folger's presence deprived Harrison and Hallowell of a portion of the income from fees and forfeitures which was a substantial part of their compensation.4
Finally, and most important, Folger represented a threat to the security of the revenue. Temple, who took office at the time of the writs of assistance controversy in 1761 (No. 44), had at first won a reputation as a dedicated and successful officer. From the beginning he had shown sympathy with the position of the Boston merchants, however, and his feelings soon manifested themselves in an open feud with Governor Bernard of Massachusetts and in doubts of the wisdom and efficacy of parliamentary efforts to raise a revenue in the colonies. Yet, although his brush with Bernard, in which he had dismissed James Cockle, Collector at Salem, on charges of corruption, had won him the acclaim of the merchants, it had also been approved by his superiors in England.5
{p. 149}
While Temple thus remained in favor, his appointment of Folger in 1764 is consistent with an intent to use his powers to mitigate the effect of the new duties and enforcement measures imposed by the American Act of that year.6 There was both practical justification and precedent for the appointment of an officer at Nantucket. The distance of the island from Boston made customs enforcement difficult and meant a long voyage around Cape Cod for vessels seeking to enter or clear. As a result, for at least forty years an officer appointed either by the Surveyor General or the Collector of Boston had been stationed there.7 Folger's background suggests other purposes, however. Descended from one of Nantucket's oldest families and deep in local politics, he had been master or part-owner in numerous whaling and trading voyages, and kept a store in which imported goods were sold. In addition he was engaged in extensive dealings in whale oil with various merchants, including John Hancock.8 Whether Temple in• {p. 150} tended it or not, there now existed at Nantucket a sizable loophole for evaders of the Acts of Trade.
If the Boston customs officers had borne Folger's appointment with misgivings, they had made no formal protest. Temple was not only their superior, but a dangerous opponent, as his contest with Bernard had shown. Moreover, the political lines were still vague enough so that, despite his opinions, Temple could not be characterized as an enemy of the revenue.9 The Townshend Acts, passed in the summer of 1767, changed both of these conditions. Temple's post as Surveyor General was eliminated in the creation of the American Board of Customs Commissioners, a five-man body which was to sit at Boston and carry out the functions of control and management previously within the province of the English Customs Commissioners. Temple was made a Commissioner, but his former authority was now to be exercised by a majority of the Board.10
At the same time the political situation was solidified by the colonial reaction to the import duties laid by the Acts.11 Inspired by the vote of the Boston town meeting in the fall of 1767, a drive for the nonimportation of British goods developed, uniting and defining the opposition to royal authority. Folger, elected to an unruly House of Representatives in 1767, was clearly a part of this opposition. In January 1767 Temple had married Elizabeth, daughter of James Bowdoin, a prominent merchant and member of the Council, who became one of the leaders in the fight for nonimportation. Whatever his prior vacillations, Temple too was now definitely aligned with the Boston faction.12 The other Commissioners saw as their first duty {p. 151} the plugging of procedural loopholes that encouraged smuggling. Temple, who felt that compliance could be obtained without undue restrictions, was from the beginning of their deliberations an articulate but ineffective minority of one.13 The Boston customs officers now had both higher authority to support them in opposing Folger and a clear-cut political basis for doing so.
After the Commissioners took office on 16 November 1767 they occupied themselves in clarifying the scope of the new statutes, which were to take effect on 20 November, and in determining the extent of their new domain and the current state of the customs establishment. From the moment when three of them arrived from England on 5 November in the midst of a well-behaved but hostile Pope Day celebration, they had been aware of the opposition to them; they thus seemed determined to move carefully.14
The first call to action came on 29 January 1768 when Folger reported that a week previously he had seized the sloop Cornelia, William Summers master, at Tarpaulin Cove in the Elizabeth Islands, the easterly boundary of Buzzards Bay. The vessel was ostensibly bound for New York from the Dutch island of St. Eustatia with a cargo of eighteen casks of Bohea tea, a commodity that could be imported only by way of England and upon pay• {p. 152} ment of the new duties.15 He had brought the Cornelia to Nantucket, sequestered her cargo in his house, and now sought advice on how to proceed. The Commissioners referred him to their solicitor, Samuel Fitch, for legal assistance and directed him to report the seizure to Harrison and Hallowell.16
These officers at once raised the question of Folger's authority to seize the vessel and, after consulting with Jonathan Sewall, Advocate General in Admiralty, informed Folger that his commission was invalid and that the seizure would fail if a claim were entered for the vessel or cargo. They offered, however, to let him accompany them to Nantucket to seize her again under proper authority. According to Harrison's later account, Folger agreed to do so and to join with them in the forfeiture proceedings in exchange for a substantial share as informer. When the time came to leave for the island, however, Folger backed out, explaining that his “friends” had advised him not to join, and that he was determined to file an information in his own right. Knowing that James Otis was one of Folger's “friends,” Harrison immediately dispatched Hallowell and George Lyde, Surveyor and Searcher of the port, to Nantucket, where they seized the Cornelia and cargo. Upon their return they found that Folger had, on 4 February, filed his information in the court of Admiralty. A new attempt to win him over failed, and, on 12 February, Harrison, Hallowell, and Lyde joined in a second information against vessel and tea.17
{p. 153}
Hearings in both actions were set for 29 February, then continued.18 In the meantime other pressures were building up. On 26 February, with Folger voting in the majority, the House approved nonimportation resolutions, which pledged it, among other things, “to discountenance the use of foreign superfluities, and to encourage the manufactures of this province.”19 The Customs Commissioners met on 7 March and dismissed Folger, determining that a nominee of the Boston collector should be appointed in his stead. There was an immediate outcry in the press that Folger had been dismissed solely because of his vote on the resolves. The Board, in a later statement of its position, admitted asking him about his vote, but insisted that “he had been before charged with being concerned in Trade, and he was only told that the Board had no further service for him.” The Commissioners also suggested that direct opposition to the principal officers of the port and open alliance with the antigovernment faction did not constitute the conduct expected in the customs service.20 For whatever reason, Folger was no longer searcher and preventive officer when the case of the Cornelia came to trial.
Both proceedings were tried in the court of Admiralty on 21 and 26 March before Judge Robert Auchmuty, probably in a combined hearing.21  {p. 154} No claim for vessel or goods appears to have been filed in either suit, but Adams and Otis were opposed by Jonathan Sewall, who had intervened in Folger's proceeding on behalf of the Crown and was doubtless of counsel for Harrison and his associates in their information. Adams' role is perhaps unfairly minimized in the later report of the Commissioners that Folger “having Mr. Otis for his Lawyer, the Cause was contested with great Spirit.”22
The three documents printed here are: (I) Adams' minutes on the depositions of several witnesses as to Folger's performance of his functions; (II) Adams' minutes of the arguments on both sides; and (III) Auchmuty's opinion and decree in the case, an unusual report which summarizes the arguments and deals with the questions involved in great detail.
Sewall's position was, first, that by statute only a duly commissioned customs officer could seize; second, that Folger had not been duly commissioned; and, third, that if his commission were valid, it had been terminated when Temple's office was merged in that of the American Board of Customs Commissioners. In reply Adams and Otis contended that no commission was necessary for the seizure, first, because under applicable statutes evidence of reputation as an officer was sufficient; second, because Folger had been a de facto officer whose acts were valid despite lack of authority. Then they argued in the alternative that Folger's commission was properly given by Temple, did empower him to make seizures, and was still in force despite the establishment of the American Customs Commissioners.
On 2 April, Auchmuty handed down his opinion and decree, dismissing Folger's information. He found that the statutes allowing reputation evidence created only a presumption, rebutted by the production of the invalid commission under which Folger had acted. Further, the common law rules validating the acts of a de facto officer were intended to protect innocent third parties who had relied upon the officer's apparent status; they could not be taken advantage of for his own profit by the officer himself. As for the commission, Auchmuty held that Temple had no power to create new officers, and, although he might have created a deputy, he had not done so in this case, thus making it unnecessary to consider in detail the effect of the creation of the American Commissioners.
Auchmuty's argument on the reputation statutes seems a proper construction. As for the de facto argument, he managed to turn Otis' own authority against him in pointing out the distinction between Folger's case and the cases chiefly relied on. If the arguments that Folger acted in good faith and that the proceeds of the forfeiture were a kind of compensation for his efforts might have altered the result, at least in a modern view, they do not seem to have been made by counsel.23
{p. 155}
The question of the commission is more difficult. As Adams seems to have argued, the statutes establishing the customs were vague as to the types and duties of officers, and ambiguous as to the source of the power to appoint.24 Temple's general powers probably could have been read as implying an authority to create lesser officers to implement them; if so, it would seem unduly restrictive to require that this authority be exercised only through the formal creation of a deputy surveyor general. The real question was whether an officer so created had the power to seize, in view of the statutory limitation on that power. As an original matter, the language of that limitation, “officers of his majesty's customs for the time being,”25 could be stretched to include a person situated as Folger was, but the point does not seem to have been pressed by Adams or Otis, and Auchmuty did not address himself to the question. Even if Folger were duly empowered to seize, however, another ground supported Auchmuty's decision.
This ground was the fact that not only had Temple been removed from office but that the office itself had been abolished. The analogy to officers whose powers survive the death of the principal, urged by Otis, was thus inapposite. Here, the existence of the authority which had created the lesser office, rather than the life of the individual who had made the appointment, had terminated; it seems obvious that lesser offices also should cease to exist, barring express confirmation or ratification.26 Adams and Otis urged certain statutes as confirmatory, but these acts clearly applied only to appointments by the English Commissioners. They apparently did not argue that the American Commissioners had ratified Folger's appointment by keeping him on after November 1767, or even by dismissing him as unfit, rather than as a usurper. Thus, despite the obvious political advantage in a finding against Folger, Auchmuty's opinion seems on the merits to be sound.
Having dismissed Folger's information, Auchmuty on 4 April decreed in favor of Harrison, Hallowell, and Lyde in the other proceeding.27 Fol• {p. 156} ger appealed both decisions to the High Court of Admiralty, but the result is not known. In any event, the vessel was sold, and the governor received his one-third share.28 The victory can have been small consolation to the Commissioners, however; they were almost at once embroiled in the disastrous consequences of the seizure of John Hancock's sloop Liberty (No. 46), which demonstrated that countering colonial resistance was more than a matter of plugging loopholes.
Not satisfied with the ordinary appellate process, Folger sailed to England in August 1768. There he petitioned the Lords of the Treasury for relief, asserting that the Cornelia and his position had both been unjustly taken away from him and that, as he had given up his position as shipmaster to serve as a customs officer, he was “now out of all employ whatsoever.” The last was a manifest exaggeration since he had been master on the voyage that brought him to England.29 His memorial was referred to the American Board of Customs Commissioners, who finally replied on 24 July 1769, denying the validity of Folger's complaints and pointing out his relations with the antigovernment faction.30 No record has been found of further action on the matter, but Folger was doubtless able to survive his losses, thanks to various maritime and mercantile ventures, which, despite his protestations, he never seems to have abandoned completely. That he did not fall out of political favor altogether appears in his appointment as {p. 157} Justice of the Peace for Nantucket County in 1771. Thereafter, he went on to play a leading role in that peculiar mixture of seamanship and diplomatic intrigue which was Nantucket's brief flirtation with neutrality during, and for a decade or so after, the Revolution.31
 
1. For the statutory authority of the Commissioners, see notes 13 51 and 14 52 below. The collector was primarily responsible for gathering the revenue; entering, registering, bonding, and clearing vessels; and prosecuting violations of the Acts. The comptroller checked the collector's performance of these duties and audited his accounts. In Boston these officers were assisted by a surveyor and searcher and a tide surveyor (both also commissioned by the Customs Commissioners), who were charged with boarding and searching vessels for illegal goods. There were also a deputy collector and about a dozen waiters, tidesmen, boatmen and the like, all appointed locally. See Instructions by the Commissioners of His Majesty's Customs to [] who is established Collector of His Majesty's Customs at [] 4 (London, ca. 1764); 4 Andrews, Colonial Period 204–212; letter of Joseph Harrison and Benjamin Hallowell to American Customs Commissioners, 30 April 1768, PRO, Treas. 1:465, fols. 179–193, printed in Wolkins, ed., “The Boston Customs District in 1768,” 58 MHS, Procs. 418, 429–432 (1924–1925). As JA suggests, text at note 2 40 below, the statutes did not even attempt to limit the numbers of these officers or to define their duties. Their titles and functions were modeled on the English establishment, which had evolved from medieval administrative practice without benefit of parliamentary control. See Hoon, English Customs 5–25; 4 Andrews, Colonial Period 178–221.
 
2. As to the surveyor general's powers, see 4 Andrews, Colonial Period 202–204. This office was also modeled on the English system. See Hoon, English Customs 113–114, 190–191. For Folger's deputation, see note 7 45 below.
 
3. In April 1768, after Folger had been dismissed, and again in July 1769, Harrison and Hallowell reported that their doubts of Folger stemmed from the beginning of his tenure. Wolkins, “Boston Customs District,” 58 MHS, Procs. 433–434; Harrison to Commissioners, 27 July 1769, PRO, Treas. 1:471, fols. 189–190.
 
4. The legal problems are discussed in text at notes 24–26 below. The position of Nantucket is described in Wolkins, “Boston Customs District,” 58 MHS, Procs. 421, 428–429. For the importance of fees, see id. at 438, 445; Harrison to Temple, 30 May 1766, 1 Bowdoin-Temple Papers (9 MHS, Colls., 6th ser.) 74–75 (1897); Barrow, Colonial Customs 272–274; Instructions by the Commissioners 1 (1764); 6 W. & M., c. 1, §5 (1694); 5 Geo. 3, c. 45, §27 (1765). Compare Sewall's comment, text at note 27 65 below.
 
5. Temple, born in Boston, but raised in England, was appointed surveyor general in Dec. 1760, but did not arrive in Boston until Nov. 1761. Treasury Warrant, 1 Dec. 1760, PRO, Treas. 11:26, p. 5 (a reference furnished the editors by Thomas C. Barrow). See 1 Bowdoin-Temple Papers xv–xvii; Quincy, Reports (Appendix) 428 note; Temple to Commissioners, Jan. 1762, Temple Letter Book, 1762–1768, fols. 7–9, MHi; Temple's Memorial, undated, id. at fol. 187. His early zeal is commended in Thomas Whately to Temple, 18 June 1764, id. at fols. 19–21. For the Cockle-Bernard affair, see Barrow, Colonial Customs 406–408; Ubbelohde, Vice Admiralty Courts 58–60; Whately to Temple, 5 Nov. 1764, 1 Bowdoin-Temple Papers 36–39; Joseph Harrison to Temple, 12 June 1765, id. at 57–58; Commissioners to Temple, 9 March 1765, 1 Bowdoin-Temple MSS, fol. 60, MHi. The feud with Bernard and opposition to the customs service seem to have begun with Temple's sympathy toward Benjamin Barons, dismissed as Collector in 1761. See note 6 44 below; Barrow, Colonial Customs 358–359; No. 44, note 21. For Temple's adverse reactions to the American Act, 4 Geo. 3, c. 15 (1764), and the Stamp Act, 5 Geo. 3, c. 12 (1765), see Temple to Whately, 10 Sept. 1764, 1 Bowdoin-Temple Papers 24–28. Temple and Bernard also could not agree on procedures for clearing vessels without stamps. See Edmund S. and Helen M. Morgan, The Stamp Act Crisis: Prologue to Revolution 134–139 (Chapel Hill, 1953).
 
6. 4 Geo. 3, c. 15 (1764). Folger was commissioned on 17 Aug. 1764. See note 7 45 below. For fears of the Boston customs officers, expressed in April 1768, see Wolkins, “Boston Customs District,” 58 MHS, Procs. 434–435. Temple had previously appointed several minor functionaries in the port of Boston, and had made one “Mr. Hubbard” deputy collector at Stamford, Conn., but these seem to have been ordinary dispensations of patronage. See id. at 418, 431–432; Harrison to Temple, 30 May 1766, 1 Bowdoin-Temple Papers 74–75. In 1764 and 1765, in addition to Folger, he appointed his brother-in-law, John Fenton, deputy collector at Albany; Edward Winslow, deputy collector at Plymouth; James McCobb, searcher and preventive officer at “the port of Kennebec”; and other similar officers at Charleston, Annapolis, Cape Breton, and Canso. Wolkins, “Boston Customs District,” 58 MHS, Procs. 418, 435–436; 1 Bowdoin-Temple Papers 66–70; PRO, Treas. 1:471, fols. 192–193; Book of Commissions, 1677–1774, fols. 44–45, 48, M-Ar; Temple to Commissioners, 10 April 1766, Temple Letter Book, 1762–1768, fol. 155. MHi. His appointments may all represent an effort to place favorably disposed men in strategic locations. For Temple's defense of the appointments, see Temple to Treasury, 10 Aug. 1769, 7 Bowdoin-Temple MSS 18–27, MHi.
 
7. Wolkins, “Boston Customs District,” 58 MHS, Procs. 432–433. See note 18 78 below.
 
8. On the Folger family, see Alexander Starbuck, The History of Nantucket 113, 740–755 (Boston, 1924), where the Timothy Folger in question here (1732–1814) is genealogically confused with his uncle at p. 749. Compare 1 Vital Records of Nantucket, Massachusetts, to the Year 1850 509 (Boston, 1925); 3 id. at 472 (Boston, 1927); 5 id. at 280 (Boston, 1928). Folger was appointed coroner in 1762. Whitmore, Mass. Civil List 159. His mercantile interests are catalogued in Joseph Harrison's Report to the American Customs Commissioners on Folger's memorial, PRO, Treas. 1:471, fols. 472–474. See also 1 Commerce of Rhode Island (69 MHS, Colls. ) 97–98 (1914). For the connection with Hancock, see, for example, Folger to Hancock, 28 June 1764, 2 Hancock Papers 165, MB; list of debts to Hancock, 4 May 1769, id. at 227. See also W. T. Baxter, The House of Hancock 169–174, 226–231 (Cambridge, Mass., 1945); Abram E. Brown, John Hancock His Book 274 (Boston, 1898); Edouard A. Stackpole, The Sea-Hunters 88 (N.Y., 1953). For his subsequent career, see note 31 below.
 
9. Harrison, appointed collector in 1766, was doubtless further inhibited by the fact that he had obtained his position in part through Temple's influence, and had assisted in presenting Temple's case in the matter of Cockle in England. See Temple to Whately, 3 Oct. 1764, 1 Bowdoin-Temple Papers 29; Harrison to Temple, 12 Jan. 1765, id. at 42–45; 12 July 1765, id. at 62–64. Moreover, Harrison may have had some sympathy for the colonial view himself. See William Molineux to——, June 1768, 3 Chalmers New England MSS 1, MH. Temple's strength was dependent in great part upon his family connection with the Grenvilles, who had been his patrons during his early years in England and continued to ease the way for him. See 1 Bowdoin-Temple Papers 1, and materials cited in note 5 above. See also Charles Paxton to George Townshend, 6 Nov. 1769, 56 MHS, Procs. 351–352 (1922–1923).
 
10. The Commissioners were authorized by 7 Geo. 3, c. 41 (1767). For their commission, see note 3 41 below. See also Clark, “The American Board of Customs, 1767–1783,” 45 AHR 777–785 (1940). The offices of all the colonial surveyors general were abolished and their commissions revoked when the Board was commissioned. Id. at 783; Samuel Venner to Thomas Bradshaw, 28 March 1768, PRO, Treas. 1:465, fols. 250–251.
 
11. 7 Geo. 3, c. 46, §§1–7 (1767)
 
12. On nonimportation, see Arthur M. Schlesinger, The Colonial Merchants and the American Revolution, 1763–1776 106–111 (N.Y., 1918). Folger sat for a single term in the House at this time. Starbuck, History of Nantucket 635; 18 A&R 225. For Temple's marriage, see 30 Boston Record Commissioners, Reports 329 (1903); 1 Bowdoin-Temple Papers 80–81. The Commissioners and Hutchinson both blamed Temple's opposition on his marriage, which brought him also into close relationship with James Pitts and John Erving, patriot members of the Council. See Hutchinson to ——, Dec. 1769, 26 Mass. Arch. 417; Commissioners to Treasury, 6 Jan. 1769, PRO, Treas. 1:471, fols. 438–439, 452.
 
13. For the disputes between Temple and the Commissioners, see Clark, “American Board of Customs,” 45 AHR 782, 790–791. Temple dissented in the Board's determination to flee to Castle William after the Liberty riots in June 1768 (No. 46) and in the dismissal of John Fisher, collector at Salem, for corruption in July 1768. In the latter case, he was upheld by the Lords of the Treasury, who ordered Fisher reinstated. See No. 47, note 7. Finally in Feb. 1769 the other four members of the Board complained formally and at length to the Treasury about Temple's continuing opposition to their doings. PRO, Treas. 1:471, fols. 429–430. See also sources on Temple's marriage, note 12 above. For a sympathetic view of Temple's position, see Memorial of Samuel Venner to the Duke of Grafton, 1 May 1769, PRO, Treas. 1:471, fols. 495, 497. As to Venner, see note 16 below. Temple was finally dismissed in the fall of 1770, but he soon obtained a position in the English customs and lived to be British consul at New York after the Revolution. Clark, “American Board of Customs,” 45 AHR 791; 1 Bowdoin-Temple Papers xvi–xvii, 151–152, 281–282.
 
14. See Commissioners to Lords of Treasury, 12 Feb. 1768, PRO, Treas. 1:465, fols. 330–334; Charles Paxton to George Townshend, 24 Feb. 1768, 56 MHS, Procs. 348–349 (1922–1923). For examples of their activities, see opinions of the solicitor general on construction of the statutes, 15 Dec. 1767 and 18 Jan. 1768, PRO, Treas. 1:465, fols. 138–144; extracts of general letters to the collector of each port, 10 Dec. 1767 and 11 Jan. 1768, id., 1:471, fols. 177, 179. The Minute Book of the Vice Admiralty Court shows that no seizures were prosecuted between Nov. 1767 and the entry of Folger's suit, note 17below. The arrival of the Commissioners is described in Clark, “American Board of Customs,” 45 AHR 785–786. Following the formula prescribed for the English Commissioners in 6 W. & M., c. 1, §5 (1694), Temple and Henry Hulton, “the first two named in the Commission,” took oath in the Superior Court, “before the Barons of the Exchequer,” on 16 Nov. 1767. See Minutes of the Commissioners, 16 Nov. 1767, 7 Bowdoin-Temple MSS 147, MHi; compare Min. Bk. 86, SCJ Suffolk, Aug. 1767, following N–115.
 
15. The import restrictions were laid by 7 Geo. 1, Stat. 1, c. 21, §9 (1721), and the duties by 7 Geo. 3, c. 46 (1767).
 
16. Letters of Folger to Commissioners, 29 Jan., 1 Feb. 1768, PRO, Treas. 1:471, fols. 171–174; Minutes of the Commissioners, 29 Jan., 1 Feb. 1768, 7 Bowdoin-Temple MSS 147, MHi. Compare the account of the Commissioners replying to Folger, 24 July 1769, PRO, 1:471, fol. 363. According to Samuel Venner, writing after his dismissal as secretary to the Commissioners (No. 46, notes 20, 27), almost as soon as the Board was constituted, the Commissioners had begun a concerted attack on Temple by questioning the legality of a list of his former appointments which he had submitted. Upon the seizure of the Cornelia,
“the Board having consulted Mr. Samuel Fitch, then acting as their Soliciter, he reported that a Libell should be filed in the Court of Vice Admiralty against the Vessel and Goods. But the Commissioners apprehending that this would give a Sanction to such Officers [i.e.Temple's appointees], immediately declared that Mr. Folger had no Power to make such Seizure, and directed the Collector and Comptroller of the Port of Boston to reseize the Vessel and Cargo.”
Venner to Duke of Grafton, 1 May 1769, PRO, Treas. 1:471, fol. 496.
The chief materials cited here and in note 17, above, supporting the view that Harrison and Hallowell took the initiative to reseize, were prepared by the Commissioners or the officers, and are thus as liable to prejudice as Venner's account. Temple's own copy of the Commissioners' Minutes indicates that he did not submit a list of his appointees until 14 March, however. 7 Bowdoin-Temple MSS 151, MHi. Folger's Memorial to the Treasury, 24 Nov. 1768, states that it was the collector and comptroller who declared the seizure illegal. PRO, Treas. 1:471, fols. 366–367. Although the Commissioners were probably unofficially aware of what was going on, the fairest conclusion seems to be that their opposition to Temple's appointments was brought about by Folger's case, rather than that the opposition to Folger was a calculated part of a scheme directed against Temple.
 
17. Folger v. The Cornelia and 18 Casks of Tea, Vice Adm. Min. Bk., 4 Feb. 1768; Harrison v. The Cornelia and 18 Casks of Tea, id., 12 Feb. 1768. See notices of monitions, Boston Gazette, 18 Feb. 1768, p. 1, col. 1. For accounts of the maneuvering prior to the filing of suit, see the materials cited above, note 16; Harrison and Hallowell to Commissioners (extract), 8 March 1768, PRO, Treas. 1:471, fols. 181–182; Folger's Memorial, 24 Nov. 1768, id., fols. 366–367; Harrison to Commissioners, 21 June 1769, id., fols. 472–475. Harrison's fears about Otis are substantiated by the latter's familiarity with Folger's commission in the incident of 11 Feb., described below, note 22 60 . It was Harrison's letter of 21 June 1769, containing the reference to Folger's “friends,” which started the bad blood between Otis and the customs officials leading to Otis' disastrous fight with Commissioner John Robinson. See Minutes of the Commissioners, 4 Aug. 1769, 7 Bowdoin-Temple MSS 188, MHi. As to the fight and subsequent litigation in which JA was of counsel for Otis, see 2 JA, Diary and Autobiography   47–48.
 
18. Vice Adm. Min. Bk., 4 Feb., 12 Feb. 1768.
 
19. Mass. House Jour. 1767–1768, p. 198–199. Boston Gazette, 29 Feb. 1768, p. 2, col. 2. See American Commissioners to Lords of Treasury, 28 March 1768, PRO, Treas. 1:465, fols. 363–364.
 
20. See Minutes of Commissioners, 7 March 1768, PRO, Treas. 1:471, fol. 159; Boston Gazette, 14 March 1768, p. 3, col. 1; Commissioners to Treasury, 24 July 1769, PRO, Treas. 1:471, fols. 364–365. Compare Hutchinson to ——, Dec. 1769, 26 Mass. Arch. 417, 418. Temple did not dissent from Folger's dismissal, but on 10 May 1768, he wrote a testimonial for him. PRO, Treas. 1:465, fols. 248–250. There was a specific prohibition against engaging in trade and an injunction to report any such activity by inferior officers in the Collector's instructions. Instructions by the Commissioners 6 (1764). Most of Temple's other appointees were reappointed. See note 18 78 below. As late as 12 March the Commissioners were willing to offer Folger a settlement. Minutes of the Commissioners, 12 March 1768, 7 Bowdoin-Temple MSS 153, MHi.
 
21. Vice Adm. Min. Bk., 4 Feb., 12 Feb. 1768. See Rowe, Letters and Diary 157, 158. Interrogatories on Folger's behalf were served on the Commissioners. After taking Fitch's advice, they directed him to except to the interrogatories. Minutes of the Commissioners, 24, 25 March 1768, 7 Bowdoin-Temple MSS 155–157, MHi. It is not known whether the exceptions were filed, or what the result was.
 
22. Commissioners to Treasury, 24 July 1769, PRO, Treas. 1:471, fol. 364.
 
23. The rule at common law in the United States in the 19th century was that a de facto officer was not entitled to compensation (except, perhaps, his expenses), even when he had acted in good faith. Floyd R. Mechem, A Treatise on the Law of Public Offices and Officers §§331–334, 342 (Chicago, 1890). More recently some courts have allowed compensation, even where there is a rightful claimant, if the de facto officer has acted in good faith. Eugene McQuillin, The Law of Municipal Corporations, vol. 4, §12.181 (Chicago, 3d edn., 1949); Charles S. Rhyne, Municipal Law 145 (Washington, 1957).
 
24. See JA's argument, text at notes 2–6 40–44 below. The statutes, 25 Car. 2, c. 7, §3 (1673), and 7 & 8 Will. 3, c. 22, §11 (1696), which deal with the power of the English Commissioners over the colonial customs, are quoted in notes 13 51 , 14 52 , below. For the narrower question whether the Commissioners themselves were authorized to appoint under these Acts without warrant from the Treasury, see No. 50 at notes 3–8.
 
25. 13 & 14 Car. 2, c. 11, §15 (1662), quoted in note 2 2 below.
 
26. There was authority to this effect in the 18th century. See 16 Viner, Abridgment , tit. Officers and Offices, O. 4, pl. 7. For similar modern authority, see Mechem, Public Offices §407; 3 McQuillin, Municipal Corporations §§12.115, 12.121.
 
27. Vice Adm. Min. Bk., 12 Feb. 1768. See Harrison and Hallowell to Commissioners, 8 April 1768, PRO, Treas. 1:471, fol. 183.
 
28. Vice Adm. Min. Bk., 4 Feb., 12 Feb. 1768. See order of sale, Massachusetts Gazette, 15 April 1768, p. 3, col. 2. Andrews suggested that the Minute Book must be in error in recording that this appeal was to the High Court, because he believed that after 1766 Vice Admiralty appeals lay only to the Privy Council. Andrews, “Vice Admiralty Courts in the Colonies,” in Records of the Vice Admiralty Court of Rhode Island, 1716–1752 22 note (Washington, ed. Dorothy S. Towle, 1936). Subsequent research has disclosed that the High Court and the Privy Council continued to exercise concurrent jurisdiction in appeals, at least in cases under the Acts of Trade, after 1766. See Smith, Appeals to the Privy Council 191–192. A newspaper correspondent reported that “The first Civilian in this Kingdom has undertaken for Capt. Folgier in his Appeal from your [i.e. the Boston] Court of Admiralty; and it is expected that he will not only succeed in the appeal, but also have a handsome appointment.” Boston News-Letter, 12 Jan. 1769, p. 2, col. 2.
 
29. Rowe, Letters and Diary 173. Boston News-Letter, 25 Aug. 1768, p. 2, col. 3. Commissioners to Treasury, 24 July 1769, PRO, Treas. 1:471, fol. 365. Folger's memorial, received on 24 Nov. 1768, is found in id. at fols. 366–368. It was accompanied by Temple's testimonial, note 20 above.
 
30. American Commissioners to Treasury, 24 July 1769, PRO, Treas. 1:471, fols. 363–365. The reply was accompanied by much documentation, including statements of the customs officers, earlier letters from their records concerning the surveyor general's powers, and Auchmuty's opinion and decree (Doc. III). The documents, which have been heavily relied on in this account, are scattered throughout PRO, Treas. 1:465, 471. Folger returned to Massachusetts in April 1769. Massachusetts Gazette, 27 April 1769, p. 1, col. 3. In June he applied to the Commissioners for reinstatement, but action was deferred pending reply to the Memorial. Minutes of the Commissioners, 6, 20 June 1769, 7 Bowdoin-Temple MSS 180, MHi. Temple, who apparently saw the attack on Folger as an attack on himself, wrote at length to the Treasury in Folger's behalf, asserting the power of the surveyor general to appoint inferior officers and the legality of seizures made under such appointments. Temple to Bradshaw, 10 Aug. 1769, 7 Bowdoin-Temple MSS 18–27, MHi.
 
31. As to Folger's commercial activities, see notes 8, 29, above. For his appointment as Justice, see Whitmore, Mass. Civil List 148. The adventures of Folger and Nantucket from 1775 to 1795 are chronicled in Stackpole, Sea Hunters 66–144. See also Starbuck, History of Nantucket 206–259, 384–414. In 1785 Folger served again as a Representative to the General Court. Id. at 636. He was related to Benjamin Franklin and in 1771 provided him with a map of the Gulf Stream, upon which Franklin relied in later scientific writings. Id. at 374–375. For Folger's later contact with JA, see No. 58, note 9.
Cite web page as: Founding Families: Digital Editions of the Papers of the Winthrops and the Adamses, ed.C. James Taylor. Boston: Massachusetts Historical Society, 2007.
http://www.masshist.org/ff/