In this forfeiture proceeding, as in Folger v. The Cornelia
, No. 45
, Adams argued in favor of the power of an inferior officer of the customs to seize a vessel. In this case, however, he was defending the interests of an officer appointed by the Commissioners of Customs. On 12 May 1769 Jonathan Sewall had filed a libel against the brigantine Union
in behalf of John Butler, tide surveyor in the port of Salem, who had earlier seized the vessel at Marblehead. Claimants were cited to appear on 22 May, at which time an exception attacking Butler's authority was evidently filed, and the case continued for argument.1
On 22 June the Commissioners directed their solicitor “to engage Mr. Adams and Mr. Quincy to assist the Advocate General in supporting the Libel” against the Union.
This action is doubtless accounted for by the fact that, from 24 June to 12 July, Sew all was on a trip to Halifax, the seat of his new jurisdiction as Judge of Admiralty.2
The trial was probably held during Sewall's absence, because Adams' minutes, printed below, do not mention the Advocate General and indicate that Adams himself argued the case for Butler. James Otis appeared for the claimants.
Butler had been commissioned by the American Commissioners of Customs without warrant from the Treasury. By statute, only the Commissioners themselves, “officers of his majesty's customs for the time being,” or others appointed by Crown or Treasury, could make a valid seizure.3
Adams argued first that Butler was de jure
an “officer of his majesty's customs” because the American Commissioners had by statute and commission all the powers of their English counterparts to appoint such officers. His second point was that, by statute, exercise of office made Butler a de facto
“officer” regardless of his commission. Despite these arguments, the libel was dismissed, presumably on the theory that the seizure was void because Butler lacked authority.4
Although the statutes and other instruments involved are ambiguous, there are reasonable grounds for such a result. The statute establishing the colonial customs system had provided that “officers of the customs” should be appointed by the Treasury and
It had long been the rule for the English Commissioners to make such appointments only upon warrant from the Treasury, a practice which the patent of the American
It was thus sound construction to hold that the “officers of his majesty's customs” empowered to make seizures were only those officers appointed upon warrant.7
If this view were adopted, the portion of the Commissioners' patent cited by Adams which gave their lesser employees power to enter vessels and premises “to Search and Survey” and do all other necessary acts “agreable to the Laws and Statutes relating to the said Revenues,”8
would be expressly limited by the statutory provisions to powers other than that of making seizure. Insofar as Butler's commission gave him such a power, it would thus be void.
The question of Butler's statutory de facto
authority was controlled by the holding in Folger v. The Cornelia
that the statutes in question created only a presumption, which could be rebutted by evidence of lack of authority. The principles of that case, which had concerned an officer friendly to local mercantile interests, thus seem to have been applied evenhandedly where the officer was loyal to the Crown.9