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•
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
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•
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
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•
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
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
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
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
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
), 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
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