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
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
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
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
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
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
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
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
April 2d. 1768.