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Browsing: Legal Papers of John Adams, Volume 2


Docno: ADMS-05-02-02-0006-0003-0003

Author: Adams, John
Date: 1768-03

Adams' Minutes of the Argument1

Court of Vice Admiralty, Boston, March 1768

Folger vs. Hallowell.
The Affairs and Transactions of the Customs and Revenue, are very loose. Customs and Duties and subsidies, have from Time to Time been granted by Parliament to his Majesty and the Collection and Management of them has been committed by Parliament to his Majesty, in short the Crown seems to have been entrusted with a discretionary Power <by the Parli> of appointing as many Sorts of Officers and as many in Number, as are or shall be thought convenient. We hear of Surveyors, Collectors, Searchers, and Comptrollers but there is not any act of Parliament, which describes and limits their Provinces and Powers.2
Compare the Commission of the Commissioners with the Act of Parliament on which it is grounded. How small the Foundation! How mighty the super Structure! Are there no Powers in the Commission which are not pointed out in the Act?3
{ 160 }
Compare the Act that empowers the King to constitute Commissioners at Home, with the Powers exercisd by them,4 and by the late Surveyors General as Representatives of them.5 The Commission empowers to suspend, and remove &c. Does the Act of Parliament enable the K. to give such Powers to Commissioners?
Where did Mr. Lechmere get his Authority to suspend Mr. Barons as Collector of this Port? He claimed an Authority, and exercised it of suspending.6 Yet there is no Act of Parliament in the whole Statute Book, that enables the K. or Commissioners of Customs or any Body else to create such an officer as Surveyor General.
Sewall.
Folgiers Commission. Preventive officer. In my behalf.7 All Temples { 161 } Authority ceased, on Arrival of Commissioners. Made vs. Claimers.8 Exclusion of officers and [their?] dues.9
Reputation and Exercise sufficient. 6. G. 1, c. 21, §24.10 11. G. 1, c. 30, §32.11
{ 162 }
Continuance of Deputations &c. after Death of Commissioners. 12. Ann. St. 2, c. 8, §13.12
Comrs. of Customs. 25th. Car. 2, Chap. 7 §3.13
Comrs. of Customs and Lds. of Treasury to appoint officers. 7. & 8. W. 3. Chapt. 22§11.14
{ 163 }
7. G. 3d15
Mr. Otis. Admitted an officer De Facto, and therfore have given up their Cause. Distinction between King De Jure and De Facto.16 Maxim officers to be favoured.
Viners Abridgment Tit. Officers, and Offices G, Plea 2. Keeper of Goal De Facto, and De Jure.17 Mayor De Facto.18 G. 4, Plea 2. All Judicial Acts shall be good.19Colour of Election all Judicial and Ministerial Acts good.20
{ 164 }
Evidence that he was in Fact an officer, an officer De Facto.
If it should appear that the King was deceived21 in his Grant and issued a Commission to the Commissioners that was void, would it be pretended that all their Acts and Orders through the Continent were void? No. Their Reputation And Exercise, sufficient to make their Acts and orders good.
All the Officers Comptrollers, Searchers Inspectors and even Commissioners them selves are only Preventive officers, none of them are to collect his Majesty's Duties.
Wonderfull Parenthesis (in my Behalf).22 These Words cant make Folger a Deputy, merely Surplussage, currente Calamo, and may go out again without injuring the Commission.
If not rejected as surplusage, yet capable of several Constructions that will not vitiate or render void the Commission.
Whether the Surveyor General had, and the Commissioners have a Power to dismember a Port, or to make any Alterations in a Port, Yet if they will undertake to do it, it must be good till set aside by superiour Authority.
Lechmere went to England and appointed Coll. Brinley his Deputy in his Absence, and many of the officers got him to allow them salaries &c. Wages, Fees or some thing that they never could get before, and particularly the present Commissioner Paxton got a large sum at that Time.23
{ 165 }
A Deputy Sherriff would be liable to an Action if he should act after the death of his Principal, but this is not the Case of the Custom House officers. Their Deputations or other Authorities, are not nullified by the Demise of the Crown, any more than the Judges.24
2 Lev. 131. 10. Co.——.25
Sewall. General Question, whether Mr. Folger had any Authority to make the Seizure.
The supposition of his having another Commission besides this from Temple.
Q. whether I have not offered such Evidence of his Having no Authority, as shall oblige Folger to produce <his> some other Commission.
The Act of 6. G. 1, c. 21, §24.26 intended for the security of the Officers and off the Revenue. It is inconsistent with Common sense to suppose that the Legislature had any such Case in View, as this before your Honour.
This Act not extended to America.
I believe there is no Bottom to this Affair of the Customs.
By fair Contract the officers entituled to all the Fees within Their District.27
{ 166 }
In my Behalf, intended to make him Deputy, not to make a new office or officer. No Person can make a Deputy but the Principal. No Surveyor General can make a Deputy Collector, any more than I, as Advocate can make a Deputy Judge of Admiralty, or than your Honour can make Deputy Advocate General.
Surveyor and Searcher.28
1. In JA 's hand. Adams Papers, Microfilms, Reel No. 185. The first four paragraphs seem to be JA 's notes for an argument that in the absence of specific statutory language an officer's authority was to be found in his commission or in customary practice. See the statutes in notes 13 51 and 14 52 , below. Compare note 1 above. The notes were probably written out at leisure before Sewall's argument, which ensues.
2. See note 1 above.
3. Presumably the American Board of Customs Commissioners, notes 10, 14, above. The act authorizing their positions provided that the customs in the plantations might “be put under the management and direction of such commissioners, to reside in the said plantations, as his Majesty, his heirs, and successors, by his or their commission or commissions under the great seal of Great Britain, shall judge to be most for the advantage of trade, and security of the revenue of the said British colonies.” The commissioners, “or any three or more of them,” were to “have the same powers and authorities for carrying into execution the several laws relating to the revenues and trade” of the colonies as other acts gave to the English commissioners, and it was to be lawful for the King “in such commission or commissions, to make provision for putting in execution the several laws relating to the customs and trade of the said British colonies.” 7 Geo. 3, c. 41, §§1, 2 (1767). Their commission, which is set out in Book of Commissions, 1677–1774, fols. 83–92, M-Ar, was detailed, providing not only the general powers conveyed by the Act, but power to appoint and suspend inferior officers (see No. 50, note 15); power to apply the funds collected to rewards and salaries; power to administer oaths, to enter and search vessels and buildings, to compound forfeitures, to compel obedience from inferior officers and assistance from other officials; and authority to oversee the accounts of the entire system. In addition the Commissioners were granted salaries, were relieved of liability for the defaults of inferior officers, and were freed from obligations for jury service and other local offices. Part of the text is quoted in No. 50, notes 15, 16.
4. The English Customs Commissioners were first appointed by royal patent in 1671 and seem to have functioned by that authority until the passage of 9 Geo. 1, c. 21, §1 (1722), which, to remedy a defect in the Act of Union with Scotland of 1707, provided that
“the customs and other duties, now under the management of the several and respective commissioners of the customs of England and Scotland, shall and may be put under the management of one commission of the customs for the whole united kingdom, or under the management of several commissions of the customs for England and Scotland respectively, from time to time, as his Majesty shall judge to be most for the advantage of trade and security of his revenues.”
The Act also made it lawful for the King “in such commission or commissions to make provision for putting in execution the several laws relating to the customs.” id. §2. See Hoon, English Customs 56–57. The very extensive powers actually granted in the commissioners' patents, including the appointment and dismissal of inferior officers, are summarized in id. at 59–60. For their authority over the colonial customs, see notes 13 51 , 14 52 , below.
5. That is, John Temple and the surveyors general for the other continental districts, whose commissions were revoked upon the appointment of the American Board of Customs Commissioners. See note 10 above. For their powers, see text at note 2 above.
6. Benjamin Barons, appointed Collector in 1759, was already on bad terms with the rest of the customs establishment, and sought to turn the system to his own profit by allying himself with the Boston merchants. In June 1761 he was dismissed by Thomas Lechmere, the Surveyor General, on charges of interfering with the Admiralty courts and the customs officers; he was not reinstated, despite the appeals of the merchants and the tacit support of Temple, who succeeded Lechmere in the midst of the squabble. See notes 5, 6 37 , above. The dispute produced extensive litigation, including the case of the writs of assistance (No. 44), and the cases of Gray v. Paxton and Erving v. Cradock. Quincy, Reports (Appendix) 425–426, 541–557. See generally Barrow, Colonial Customs 262, 352–360; see also No. 44, note 21. As to the Surveyor General's power to suspend and appoint, see note 11 77 below.
7. The text of Folger's commission, dated at Boston, 17 Aug. 1764, and signed by Temple, is as follows:
“To all People to whom these presents shall come, Know ye, That I the Surveyor General of his Majesty's Customs in the Northern District of America, By Vertue of the Power and Authority to me given, Do hereby appoint Timothy Folger to be Searcher and preventive Officer in his Majesty's Customs at the Island of Nantucket in the Province of Massachusetts Bay and by Vertue of these presents he hath Power to enter any Ship, Bottom, Boat, or any other Vessel, as also into any Shop, House, Warehouse, Hostry, or other Place whatsoever, to make diligent Search into any Trunk, Chest, Pack, Case, Truss, or any other Parcel or Package whatsoever, for any Goods, Wares or Merchandize, prohibited to be Imported or Exported, or whereof the Customs or other Duties have not been duly paid, and the same to Seize (in my behalf) to his Majesty's Use, and also put in Execution all other the lawful Powers and Authorities for discharging the Trust reposed in him as an Officer of the Customs In all things proceeding as the Law directs; Hereby praying and requiring all Officers both Civil and Military In the Province of the Massachusetts Bay to be aiding and assisting to him the said Timothy Folger in all things as becometh.” Book of Commissions, 1677–1774, fol. 39, M-Ar.
Folger took the necessary oaths before Governor Bernard on 18 August. Ibid.
8. Probably an argument by Sewall that Folger's defenses under the Acts of 6 and 11 Geo. 1, notes 10 48 , 11 49 , below, might properly have been made against parties claiming the vessel, but were not valid against other royal officials. Compare Auchmuty's opinion, text following note 5 71 below.
9. The reference is not clear. The phrase may simply echo the thought expressed in text at note 27 65 below, or it may refer to the practice of exempting customs officers from local obligations such as the payment of provincial taxes, jury duty, and military service. See note 3 41 above. See the complaint of the Commissioners to the Lords of the Treasury that the Province assessors were seeking to levy on their salaries, 27 July 1769, PRO, Treas. 1:471, fols. 459–460; see also 4 Andrews, Colonial Period 204.
There follows a gap of half a page in the MS . The materials which follow in text through note 53 were probably JA 's notes for his own argument.
10. 6 Geo. 1, c. 21, §24 (1719), provided that
“if upon trial or trials of or in any information, action, suit or prosecution whatsoever relating to his Majesty's duties of customs and excise, or to either of them, or to any other his duties whatsoever, or to any seizure or seizures, penalty or penalties, forfeiture or forfeitures, relating to the said duties, or any of them, or if upon any trial or trials of or in any action, suit or prosecution whatsoever against any person or persons, for anything done by virtue or in pursuance of any act or acts of parliament relating to the said duties, any or either of them, any question or questions shall be made, or any doubt or doubts, dispute or disputes, shall arise or happen, touching or concerning the keeping of any office or offices of excise in any city or cities, town or towns, or touching or concerning any one or more defendants being an officer or officers of or for the said duties, any or either of them, that in every such case and cases proof shall and may be made, or evidence given, either of the actual keeping of such office or offices of excise in such city or cities, town or towns, or of such one or more defendants actually exercising of and being employed and intrusted in such office or offices respectively, before and at the respective time and times when the matter or matters in question upon such trial or trials shall happen to have been done or committed, or omitted, or neglected to have been done or performed, without producing any particular person or persons to prove the names of the particular and respective commissioners to any commissions in the respective cases before-mentioned, any or either of them, to be of their own hand-writing; and that in every such case and cases respectively such proof and evidence shall be deemed and taken to be legal and sufficient evidence, unless or until by other evidence the contrary shall or do appear.”
11. 11 Geo. 1, c. 30, §32 (1724), simplified the language and clarified the coverage and procedure of the Act of 6 Geo. 1, note 10 48 above. After reciting the failure of the earlier act, it provided that if, in the same categories of actions, as well as
“upon the trial of any information or indictment for assaulting, resisting or obstructing any officer or officers of the customs, excise or duties upon salt, or other duties due and payable to his Majesty, in the execution of his or their respective office or offices, or for rescuing any goods or merchandizes seized or to be seized by any such officer or officers; any question shall arise, whether any person be an officer of his Majesty, his heirs or successors, of or for any of the said duties: in every of the said cases, proof shall and may be made and admitted, that such person was reputed to be and had acted in, and in fact exercised such office, and at the respective time and times, when the matter or matters in controversy upon such trial or trials shall happen to have been done or committed, or omitted to have been done or performed, without producing or proving the particular commission, deputation, or other authority, whereby such officer was constituted and appointed, and that in every such case such proof shall be deemed and taken by the judges or justices before whom any such trial shall be had, to be good and legal evidence, unless by other evidence the contrary shall be made to appear; any law or usage to the contrary hereof notwithstanding.”
12. 12 Anne, Stat. 2, c. 8, §13 (1713), continued by 5 Geo. 1, c. 7 (1718), provided that all “collectors, surveyors, or other inferior officers” appointed by the Commissioners of the Customs “shall be deemed to remain and continue in their respective offices and imployments, notwithstanding the death or removal of any of the commissioners of the customs who deputed and appointed such officers, until the deputations of such officers respectively shall be by the said commissioners, or any other superior authority, revoked, annulled, or made void.”
13. An undated MS copy of this section in JA 's hand reads:
“And for the better Collection of the several Rates and Duties aforesaid imposed by this Act, be it enacted and it is hereby further enacted by the Authority aforesaid, that this whole Business shall be ordered and managed, and the several Duties hereby imposed shall be caused to be levyed by the Commissioners of the Customs in England now and for the Time being, by and under the Authority and Directions of the Lord Treasurer of England or Commissioners of the Treasury for the Time being.” Adams Papers, Microfilms, Reel No. 185.
The section is part of the Act of 1673 which first imposed duties to be collected in the colonies; it served as the basis for the first organized establishment of a colonial customs service, although isolated officials had been sent out before. See A. Berriedale Keith, Constitutional History of the First British Empire 76 (Oxford, 1930); Barrow, Colonial Customs 37–41.
14. An undated MS copy of the relevant portion of this section in JA 's hand reads:
“And for the better executing the several Acts of Parliament relating to the Plantation Trade, be it enacted, that the Ld. Treasurer, Commissioners of the Treasury, and the Commissioners of the Customs in England for the Time being, shall and may constitute and appoint such and so many officers of the Customs in any City, Town, River, Port, Harbour, or Creek, of or belonging to any of the Islands Tracts of Land and Properties, when and as often as to them shall seem needfull.” Adams Papers, Microfilms, Reel No. 185.
This statute, passed in 1696, consolidated and defined the authority of the colonial customs service, gave its officers the powers and duties of their English counterparts, and facilitated placing them upon the English establishment. See Barrow, Colonial Customs 118–130, 133–136; 4 Andrews, Colonial Period 163–165, 213–215; No. 44.
15. Presumably a reference to 7 Geo. 3, c. 41, §3 (1767), which provided that
“all deputations, and other authorities, granted by the commissioners of the customs in England before the passing of this act, or which may be granted by them before any commission or commissions shall issue in pursuance of this act, to any officer or officers acting in the said colonies or plantations, shall continue in force as fully, to all intents and purposes, as if this act had not been made, until the deputations or other authorities, so granted to such officer or officers respectively, shall be revoked, annulled, or made void, by the high treasurer of Great Britain, or commissioners of the treasury for the time being.”
See Auchmuty's discussion of this point, text at note 19 79 below.
16. According to Blackstone, when Edward IV assumed the throne,
“after a breach of succession that continued for three descents, and above threescore years, the distinction of a king de jure, and a king de facto began to be first taken; in order to indemnify such as had submitted to the late establishment, and to provide for the peace of the kingdom by confirming all honors conferred, and all acts done, by those who were now called the usurpers, not tending to disherison of the rightful heir.”
1 Blackstone, Commentaries *204; see also 4 id. at *77–78; compare 1 Hale, Pleas of the Crown 101–103 notes. If Otis here referred to Blackstone's formulation, he was on treacherous ground, since the doctrine seems intended to protect those who had relied upon a usurper, but not to support the claims of the usurper against those of the rightful “heir”—in this case the de jure officers.
17. “The Words Sheriff, Gaoler, &c. in the Statute 13 E. 1. cap. 11. extend to all Keepers of Gaols; and therefore if one hath the keeping of a Gaol by Wrong or De facto, and suffers an Escape, he is within this Statute as much as he that has the keeping of it De Jure. 2 Inst. 381, 382.” 16 Viner, Abridgment , tit. [Officers and] Offices, G. 3, pl. 2.
18. “An Action will lie against a Mayor de Facto for a false Return upon a Writ of Mandamus. Lutw. 519. Trin. 6 W. & M. in Case of Knight v. the Corporation of Wells.” 16 Viner, Abridgment , tit. [Officers and] Offices, G. 3, pl. 3.
19.
“Acts done by an Officer De Facto, and not De Jure, are good; As if one being created Bishop, the former Bishop not being deprived or removed, admits one to a Benefice upon a Presentation, or collates by lapse, these are good and not avoidable. Arg. Quod Curia Concessit; for the Law favours Acts of one in a reputed Authority, and the inferior shall never inquire if his Authority be lawful. Cro. E. 699. Mich. 41 & 42 Eliz. B.R. in Case of Harris v. Jays. [In the margin:] S.P. Where the Bishop De Facto made a Lease which was confirmed by the Dean and Chapter, and after the Bishop De Jure died in the Life of the Bishop De Facto; it was resolved, that he not being lawful Bishop, and this Lease being to charge the Possessions of the Bishoprick, it is void; altho' all Judicial Acts, as Admissions, Institutions, Certificates, &c. shall be good; but not such voluntary Acts as tend to the Depauperation of the Successor, and so affirmed a Judgement given in B.R. in Ireland. Cro. J. 552, 554. Reuan Obrian & al. v. Knivan.” 16 Viner, Abridgment , tit. [Officers and] Offices, G. 4, pl. 2.
20.
“If one is elected Mayor of a Corporation without being duly qualified according to a late Charter, to be chose into that Office, and after such Election he puts the Seal of the Corporation to a Bond, this Obligation is good: For by his coming into the Office by Colour of an Election, he was thereby Mayor De Facto, and all Judicial and Ministerial Acts done by him are good; and tho' the Corporation might have removed and displaced him, yet this not being done he had Power to seal the Bond. Lutw. 508. 519. Trin. 6 W. & M. Knight v. the Corporation of Wells.” 16 Viner, Abridgment , tit. [Officers and] Offices, G. 4, pl. 3.
21. For this usage, see No. 55, note 8 14 .
22. That is, the parenthetical phrase in Folger's commission, note 7 45 above. Otis had earlier had to defend this phrase in a coffeehouse gathering when William Molineux, the radical leader, attacked Temple and Folger, asserting that the latter had been appointed only to provide profit for the former. When a question was raised as to the validity of Folger's commission,
“Mr. Otis said the commission, he thought, was very Good, but that there was one Expression in it that some People Hesitated about and Repeated the Sentence in the Commission which Runs thus—and in my Behalf to seize for his Majesty's Use—Upon repeating of this Sentence Mr. Mollineux [said] 'Now Gentlemen, you see that I am Right in what I said,' and seemed to lay great Stress upon these words—in my Behalf—signifying that whatever seizures were made by Folger, he, the said Folger, was not to have the profit arising from such seizures but the Surveyor General and that the Surveyor General gave him his Commission on these terms.” Rowe, Letters and Diary 150–151 (11 Feb. 1768).
The commissions which Temple gave to Edward Winslow as deputy collector at Plymouth and James McCobb as searcher and preventive officer at Kennebec omitted the phrase. Book of Commissions, 1677–1774, fols. 44–45, 48, M-Ar.
23. Further documentation of this incident has not been found. Brinley was undoubtedly Col. Thomas Brinley (d. 1765), a leading resident of Roxbury, whose son, Thomas, Harvard 1744, was a loyalist who fled to Halifax in 1776. 11 Sibley-Shipton, Harvard Graduates 366–367. Since Lechmere should have obtained permission from England for his trip and the appointment of a deputy, it is possible that Brinley was acting with the sanction of the Commissioners. See Barrow, Colonial Customs 296–298.
24. By statute every “office or employment, civil or military,” was continued for six months after the death of the sovereign, unless revoked by the successor. 1 Anne, stat. 1, c. 8, §2 (1701). A requirement subsequently imposed by 6 Anne, c. 7, §18 (1707), that all such officers take a new oath before continuing in office was replaced by 1 Geo. 2, c. 5, §2 (1727), and id., stat. 2, c. 23, §7 (1728). See Samuel Baldwin, A Survey of the British Customs, part 2, p. 195 (London, 1770). Compare 12 Anne, stat. 2, c. 8, §13, note 12 50 above.
25. Otto v. Selwin, 2 Lev. 131, 83 Eng. Rep. 483 (K.B. 1675), citing The Case of the Marshalsea, 10 Co. Rep. 68b, 77 Eng. Rep. 1027 (C.P. 1612). Otto held, per Hale, C.J., that an officer of the Court of Admiralty, pleading the warrant of that court in justification in an action of trespass and false imprisonment against him, need not plead and prove that the Admiralty had jurisdiction of the original cause. The Case of the Marshalsea had held that the warrant of a court lacking jurisdiction of the cause was not a defense in an action of false imprisonment; Hale distinguished that case on the ground that the lack of jurisdiction had there appeared (it was in fact conceded arguendo). Otis seems to be citing Otto for the proposition that when the actions of an officer are justified by a document regular on its face, the burden of proving an underlying irregularity lies with the opposing party.
26. Note 10 48 above.
27. That is, the officers appointed by the English Customs Commissioners are entitled to all the fees without competition from officers appointed by other sources. See text and note 4 above.
28. The MS breaks off here and the reference is unexplained. The office of Surveyor and Searcher is described in note 1 above. George Lyde, the incumbent, had accompanied Hallowell in reseizing the Cornelia and was a party to the action. See text at note 17 above.

Docno: ADMS-05-02-02-0006-0003-0004

Author: Auchmuty, Robert
Date: 1768-04-02

Auchmuty's Opinion and Decree1

Court of Vice Admiralty, Boston, 2 April 1768

Information
Timothy Folger vs. Sloop Cornelia and Eighteen Casks Tea. On this information the Advocate general in behalf of the King intervened.
In determining this cause, I shall consider the matters on each side of the question principally relied on by the Gentlemen in their arguments and much in the same order as proposed.
The Advocate general in behalf of the King urged, that none but the Officers of the Customs could seize in cases similar to this, relying on the 14 Car. 2d. for this point.2 That the informer, who in the information, calls himself searcher and preventive Officer in the Island of Nantuckett never was an Officer of the Customs, and that granting he was, his Authority ceased on the commissioners of the Customs in North America entering upon the Execution of their Office. Because the Informer was authorized and appointed, as by an authenticated copy of his Commission exhibited by the said advocate appears, by the { 167 } Honble. John Temple Esqr. late surveyor general of the northern district; whose office was entirely vacated and made void by the said commissioners executing their said Office, which was prior to the seizure set fourth in said Information. That the three known principal officers of the Customs in the port of Boston, of which the said island of Nantuckett is a member, had seized and informed against the same vessel and goods which information was pending in this Court; wherefore on his Majesty's behalf said advocate prayed that the libel of the said informer might be dismissed unless he could shew his authority to seize.
To all which it was answer'd by James Otis and John Adams Esqrs. advocates for the informer, first that he was not held to produce any commission to authorize him to make or hold said seizure, because it was sufficient to prove himself a reputed Officer of the Customs, by acting as such at the time of seizing. To support which the statutes of the 6 Geo. 1 and the 11. of the same reign were produced.3 Secondly, that considering the exhibits, proofs and Advocate's concession in the case, it evidently appeared, the Informer was either an Officer of the Customs de facto, or de jure or both. If the latter a right of seizing must undoubtedly have been in him. If only the informer,4 yet even by the rules of the common law, without the aid of the Statutes, it was sufficient. Thirdly, that the Informer was an Officer de jure by his commission from the said late surveyor general, produced by the advocate and by the Court allowed to be filed as evidence and lastly, that the Authority granted by said commission did not cease on the Surveyor generals office being vacated by the appointment of the Commissioners of the customs in North America, and their Executing their office. To prove which the 12. Ann. and the 7. Geo. 3. were cited and relied on.5
The force and operation of the two statutes of Geo. 1. must be considered in order to determine whether the same comprehend the present case, Those were formed to guard the revenue, by protecting the real Officers thereof against certain inconveniences. A construction therefore of the statutes different from that design or exceeding such Inconveniences must be erroneous: In the first act by the perview which immediately relates to the section under consideration it clearly appears, the mischiefs intended to be remedied were, the trouble and expence Officers were necessarily at in procuring the condemnation of { 168 } Goods seized, and in consequence thereof the enacting part enables officers to give proof of their actually exercising and being imployed and entrusted in an Office, without producing evidence to prove the names of the Commissioners to any Commission to be their hand writing. But there are only two Cases in which such proof of reputation is Admissible, First, when the trial is between the Officer seizing and the Claimer. Secondly when the Officer is prosecuted for any thing done by virtue of any act relating to duties. If therefore the present dispute is not such an instance as is pointed out by the Act, it cannot be within it Because this Act, which is enlarged by the 11. Geo. 1. but for the same purposes, gives a remedy not known at common law, in particular cases. Therefore by the rules of law relative to the constructions of Acts, such remedies cannot be extended to alter the Common law in any others than those particular instances mentioned in the Act. This rule is founded on the deference always justly paid to the common law by the Judges in construing statutes and by which the common law is preserved from Constructive innovations. It is indisputable that the present controversy is not a Trial between an Officer and Claimer, or a civil action or other process brought against an Officer by a Subject, but a litigation founded on the intervention of the Kings Advocate in behalf of his Majesty, The point is now between the King and one who claims to be an Officer of the Customs under his Majesty: therefore to extend the said Acts or either of them to such a case would be both absurd and illegal. Illegal, because by so construing the Act, the King himself would be thereby affected, tho' not mentioned therein, and tho' considering the nature and tendency of the Act, he cannot consistently with the rules of law, be constructively included. Absurd because it would be foreclosing his Majesty from whom all the powers of Officers mediately or immediately flow from trying whether one asserting to be his Officer was so, and notwithstanding the admission of such an enquiry, it appears to me, the letter as well as the spirit of the Acts will be preserved entire; and so no reason presents why it should not be granted. I am sensible, it is objected that the trial now is founded on an information, and relates to a seizure, and from thence concluded to be within the express words of the Acts. To this it may be answered, that those Acts are not to be construed by the different modes of prosecution therein enumerated, nor by the general expressions pointing out the causes of such prosecutions; but by the mischeifs intended to be remedied, and not guarded against by the common law, and therefore, tho' a Case in one sense may depend on a seizure and information, yet if none of the mischeifs mentioned { 169 } in and designed to be redressed by said acts, attend it, the law will not adjudge such a Case to be within the Acts. It is an established rule that tho' a Case be within the letter of an Act, if not within the real meaning thereof, it cannot be included therein, A construction different from that I have given would make said Acts productive of a very great repugnancy, by forcing the same to operate in favour of persons, without an enquiry whether they were or were not properly Officers of the Crown to the prejudice of others duly appointed, for the protection and advantage of whom said statutes most undoubtedly were designed. And lastly, that by the duly authenticated Copy of the Informers commission exhibited by the Advocate, evidence appears to the contrary of the informers being an Officer of right at the time of making the seizure, as far as a negative can. The reservation in the Acts made in these Words, “unless by other Evidence the contrary shall be made to appear,” entitles even a claimer, a fortiori his Majesty, to prove if he can; that the Officer seizing, notwithstanding his being reputed and acting as such, really was not, otherwise the statutes are justly chargable with one of the greatest irregularities known in the law, in preferring the lowest kind of evidence to the highest. To support the words “other evidence to the contrary” intend to confine the evidence to a persons being an Officer de facto, in exclusion of an enquiry if one de jure, must render the Acts totally ridiculous. Because when once the fact of his being an Officer de facto is established by positive evidence, it must be impossible negatively to prove the contrary. In short, tho' the acts give great releif to Officers even claimers are not by force thereof left remediless, nor do the Acts place persons proving their reputation as Officers absolutely beyond the inspection and reach of law. But the burthen of Strict legal proof is by force of the same acts removed from the Officer, in certain Cases; and if the Claimer or prosecutor would avail himself against the proof resulting from reputation, he is obliged to produce legal evidence, that notwithstanding such reputation the person seizing either was never commissioned, or if he was, the authority thereby conferred was determined, or he had exceeded his Authority. Therefore I do adjudge and decree, that said Acts are not sufficient to authorize the informer to prosecute said information without shewing a further right so to do.
I shall next determine what influence the rules of the common law touching Officers de facto ought to have in this cause.
Those rules appear to me to be calculated only to make such as presume to act as Marshall or Mayor &c. without being completely qualified, answerable for their own misconduct, in cases where the Interest { 170 } of others is concerned, but not to extend to such as immediately tend to their own private advantage.6 They are institutions to prevent mischeifs happening to some, through an undue exercise of power by others, rather than to give a sanction to it for the sole benefit of the Actors. It is but just that he who undertakes as a publick Officer the Execution of any thing without a full Authority for so doing, and of which he is to be the judge in the first instance, and does it in such a manner as renders another a sufferer, should be adjudged accountable therefor. But It by no means follows that such an undertaker should advance his own Interest by his own wrong Act, in direct opposition to the legal Officer: Therefore the law cases above alluded to and the one in trial materially differ from each other. Also the cases of the parson and bishop appear to me not applicable to the present dispute, for the same and other reasons.7 In both the latter instances their acts which may be considered as judicial, are allowed good for the benefit of others their inferiours in the law sense and so not obliged to know the legality of the induction of the parson, or the deprivation or removal of the Bishop; Where a Bishop de facto does an act which charges the possession of the bishoprick, as a lease of lands, it is void.8 The true reason of which I take to be, he shall not by any act advance his own private interest, and thereby deprive an Officer de jure of his. This case is more applicable to the present dispute than any of the others. And indeed without observing this rule all distinction between Officers de facto and de jure must cease. But to close this subject the very making of the acts9 evidently shew that at common law, Officers of the Customs could not be sufficiently guarded by proving themselves such de facto: then consequently none of those rules abstractedly were able to support the doings of such an Officer, even when the contest was not between him and the King, but a Claimer. So that tho' by the Exhibits in the case it is both proved and granted that the informer was { 171 } an Officer de facto, yet as the Statutes allow of proof being made against his being one de jure, and the common law does not avail him in this point, I am next to enquire what proof there is of his being the latter.
The proof of this point arises out of his Commission and the Authority of the late surveyor general to grant the same. It is certain the informer was by said commission created, if any thing, either a New Officer, or deputy surveyor general. It could not be a deputation as searcher and preventive Officer, if there had been any such Office known, because the surveyor general could not make a deputy to another Officer, that power being lodged only in the principal. As to the first, considering that the Island of Nantuckett is a member of the port of Boston, it is necessary to examine whether the late surveyor general had any authority, without positive orders or instructions from the Commissioners of the Customs in England under the direction of the Commissioners of the treasury to create new Officers, when there were proper Officers of the port duly commissioned and acting; and secondly if not, whether by the said Commission the Informer was deputy surveyor general.
As the statute did confine the appointment of the Officers of the Customs to the Lord treasurer Commissioners of the treasury and Commissioners of the Customs in England for the time being,10 it is impossible that any surveyor general could legally appoint or create new Offices and Officers without an authority for so doing from those who by the law had that power. It was said in the argument, that the late surveyor general had equal authority with the Commissioners of the Customs in England but it was neither attempted or possible to be proved on an inspection of his instructions as far as relate to this enquiery and consideration thereof.11 I do not perceive any thing which { 172 } proves or has a tendency to prove a power in him to create new Offices or Officers. His power of suspending for misbehavior, and appointing others in the places of the persons so suspended or of such as decease by no means can be extended to create new officers ad libitum. The former is a contracted and limitted power, and was usually lodged with all surveyor generals by the Commissioners of the Customs, and founded in necessity. The latter comprehends almost all the powers of both the Commissioners of the treasury and Customs and it is not to be supposed they ever delegated such Authority to any person whatsoever, there being neither necessity or law for so doing. It was urged in favor of such appointments of the Surveyor generals, that great inconveniences will follow if they are not adjudged valid, as many have been made, particularly one at Plymouth a member of this port.12 If the fact is so, of which there is no evidence excepting the instance at Plymouth, it ought not to regulate a judgment on the validity of such appointments, because that would be Establishing a practice not founded in law, in opposition to law. Nor can I conceive it the duty of [a] judge to depart from the law to cure inconveniences resulting from the misapprehensions of any other Officer, without something very express to warrant his so doing. Secondly if the late surveyor general had authority to appoint a deputy, which is very supposeable though not proved, it is clear he has not executed that power in the appointment of the informer, but attempted one entirely different, and therefore it is not a deputation as Surveyor general. These two points being determined makes a minute enquiry into the objection of the said commissions being superceded by the appointment of the Commissioners of the Customs in North America and { 173 } their exercise of that Office, needless; I shall therefore only say, that neither the statute of Ann, or of his present Majesty extend to any deputations save those granted by the Commissioners of the Customs in England.13 These acts also prove the legislature never conceived of or had in contemplation any other appointments then such as were made by the Commissioners of the Customs in England as aforesaid. If they had, doubtless the death and removal of surveyor generals would have been guarded against, as well as that of the commissioners. Those who made the last act must certainly have known, that the Office of surveyor general was merged in that of the Commissioners: therefore it is against reason to imagine, it was intended first to destroy the Office of principal, and secondly, to secure his deputys, or to extend the words of the proviso expressly mentioning certain Officers, to others probably not known, and if known, certainly not noticed. Therefore haveing fully heard the Kings Advocate and the Advocates for the informer and after a mature consideration of their arguments and of all the statutes and authoritys quoted and used, proofs allegations and exhibits adduced in the cause, I decree the information against the aforesaid sloop and tea filed by the said Timothy Folger to be dismissed.
[signed] Rob[ert] Auchmuty Judge
1. MS , endorsed: “Copy. Decree in the Court of Admiralty at Boston in the Case of Folger &ca. vs. Sloop Cornelia, and 18 Casks of Tea.” Subscribed: “A true copy. Att[estatu]r Ez. Price D. Regr.” PRO, Treas. 1:471, fols. 152–158 (photostats in DLC:British Reproductions).
2. 13 & 14 Car. 2, c. 11, §15 (1662) provided that no ship or goods were to be seized for violations of the Acts of Trade
“but by the person or persons who are or shall be appointed by his majesty to manage his customs, or officers of his majesty's customs for the time being, or such other person or persons as shall be deputed and authorized thereunto by warrant from the lord treasurer or under-treasurer, or by special commission from his majesty under the great or privy seal.”
Seizures by others were to be void. This section was presumably made applicable in the colonies by 7 & 8 Will. 3, c. 22, §7 (1696). It was interpreted strictly in England. See Hoon, English Customs 271–272.
3. Notes 10 48 , 11 49 , above.
4. Apparently an inadvertence for “former.”
5. Notes 12 50 , 15 53 , above.
6. A reference to the cases from Viner cited by Otis, notes 17–20 55–58 above. At the same place in the Abridgment it is also stated, “He who occupies as Marshal in B.R. be he Officer of Right or by Tort, shall be charged with the Escapes. Br. Escape, pl. 18, cites 39 H. 6. 33.” 16 Viner, Abridgment , tit. [Officers and] Offices, G. 3, pl. 1.
7. The case of the parson is evidently the following passage in Viner not taken down by JA :
“Where an Abbot or Parson is inducted erroneously, and makes a Grant or Obligation, and after is deprived or dereigned for Precontract or such like, this shall bind; because he was an Abbot or Parson in Possession, but a Usurper who usurps before Installation, or Induction, or Presentation, where another Abbot or Parson is Rightfully in Possession, or if one enters, and occupies in the Time of Vacation without any Election or Presentation, the Deed of such is void. Br. Non est Factum, pl. 3, cites 9 H. 6. 32.” 16 Viner, Abridgment , tit. [Officers and] Offices, G. 4, pl. 1.
8. See note 19 57 above.
9. The statutes of Geo. 1, notes 10 48 , 11 49 , above.
10. 7 & 8 Will. 3, c. 22, §11 (1696), note 14 52 above. Compare No. 50.
11. Temple's instructions and commission have unfortunately not been found. For the powers of surveyors general, see note 2 above.
When Temple's predecessor, Thomas Lechmere, suspended Benjamin Barons in 1759 (prior to his dismissal in 1761, note 6 44 above), he appointed George Cradock temporary collector, relying on the powers given him by the Commissioners of Customs “for managing and causing to be levied and collected His Majesty's customs,” and “to appoint officers that may be for the service of His Majesty's Revenue.” See Cradock's commission, 13 Dec. 1759, SF 172363. Lechmere used this formula in other appointments. See Book of Commissions, 1756–1767, fols. 80–81, 203, M-Ar. Temple contented himself with reciting “the Powers and Authority to me given.” See Folger's commission, note 7 45 above, and examples cited, note 6 above. Accompanying the American Commissioners' reply to the Treasury on Folger's memorial in 1769 (note 30 above), were extracts from letters of the English Commissioners in 1740 and 1765 in which they had questioned not the Surveyor General's authority to appoint deputy collectors, but the wisdom and propriety of his doing so without consulting them. PRO, Treas. 1:471, fols. 192–193; Wolkins, “Boston Customs District,” 58 MHS, Procs. 432–433. This material does not seem to have been put in evidence, perhaps because it dealt with the office of collector, rather than that of preventive officer.
12. See Temple's appointments, including that of Edward Winslow at Plymouth, in note 6 above. The “inconvenience” was simple enough to remedy. The Commissioners confirmed Winslow in his office and either confirmed or replaced other Temple appointees. Samuel Proctor was appointed to Folger's place, but was forced from the island in the fall of 1768. PRO, Treas. 1:471, fols. 461–463; Boston News-Letter, 11 Aug. 1768, p. 2, col. 1; Minutes of the Commissioners, 15 March 1768, 7 Bowdoin-Temple MSS 151–153, MHi; Massachusetts Gazette, 3 Nov. 1768, p. 1, col. 3. Although it does not seem to have been put in evidence, Temple's predecessors had been appointing officers at Nantucket since at least 1740, a fact which was relied on in this case by both sides in their memorials to the Treasury. Folger claimed that it showed the antiquity of the practice; the Commissioners pointed out that the English Commissioners had often rejected such appointments. See Wolkins, “Boston Customs District,” 58 MHS, Procs. 432–433; PRO, Treas. 1:471, fols. 363–365, 366–367; Minutes of Commissioners, 15 March 1768, 7 Bowdoin-Temple MSS 152–153, MHi.
13. 12 Anne, Stat. 2, c. 8, §13 (1713), note 12 50 above; 7 Geo. 3, c. 41, §3 (1767), note 15 53 above.