Butler vs. Brigg Union.
14. Car. 2d, c. 11, §.15. Seizures confined to Officers of his Majestys Customs, for the Time being.2
7. & 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
Butlers 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[harles]
he is not appointed by his Majesty, nor an officer of the Customs. He is merely a preventive officer.
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[s]
2. 13 & 14 Car. 2, c. 11, §15 (1662), set out in No. 45, note
3. 7 & 8 Will. 3, c. 22, §6 (1696), set out in No. 44, notes
4. 7 & 8 Will. 3, c. 22, §11 (1696), set out inNo. 45, note
5. 7 Geo. 3, c. 41 (1767), the act creating the American Board of Customs Commissioners, set out in No. 45, note
6. 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
below, are to a form of the Commission printed—apparently at Boston—from this record. A copy is in MBAt
: Tracts, A–24. See also No. 45, note
7. 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.”
8. 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.
9. 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
. See also id.
, text at note
10. That is, 13 & 14 Car. 2, c. 11, §15, note
11. Thus in MS
. Perhaps JA started to write “any thing.” This sentence is in a thicker ink and appears more hurriedly written.