Treasury Department Circular
to the Collectors of the Customs
July 22, 1792.
When an appeal was made to me, by certain Officers of the Customs, respecting the fees to which they were entitled under the Coasting Act,1 I took the only method then in my power, to aid my own judgment to a right decision. The Attorney General not being at the seat of Government, I applied to two of the most able Counsel in the city of New-York, (one of whom is the Attorney of the United States for the District) for their opinions.2 I carefully examined the law, myself; and, agreeing with those Gentlemen in the construction of it, I signified the result in a Circular communication.3
It, however, has since appeared that the construction, then adopted, has been deemed by some of the Officers of the Customs so clearly unfounded as, in their opinion, to warrant a departure from the instruction given.4 And it has also appeared that respectable law opinions were opposed to those of the Gentlemen whom I had consulted.5
Had I not been in continual expectation, that a new law would have obviated the difficulty, I should have taken much earlier measures to settle the question in some definitive, and, if possible, satisfactory mode. But session after session having passed, and further delay being still possible (though I confidently reckon on a new Coasting law in the course of the next session) I have thought it incumbent upon me to bring the affair to an issue.
Circumstanced as it was, amidst a diversity of legal opinions, it seemed to be the proper course to consult the Attorney General, who, by law, is the adviser of heads of departments, as to questions of law.
This has been done, and the event is, that his opinion differs from that which was originally adopted, and communicated by me. A copy of his answer to the questions put to him is herewith transmitted.6
In this state of a matter, which so directly concerns the interests of the Officers, I think it proper to rescind the instruction hereto-fore given; though my own view of the subject remains unchanged. Each Officer will then pursue that course, which appears to him conformable to law, to his own interest and safety, and to the good of the service.
Having said that my view of the subject remains unchanged, I think fit to specify more particularly, than I have yet done, the reasons which govern it.
1. It is conceived to be an important general rule (where no principle of public policy calls for a free interpretation) that the subject shall not be taxed or burthened by construction. This rule, I think, will be violated, if the sixty cents is made a several compensation for several services; because the coupling of the two objects, which are supposed to be distinct services, by the word “and,” and the naming of the compensation but once, at the end of the sentence, does, according to the most obvious, literal and grammatical construction, connect the two objects into one service, entitled to one compensation. The particle “for” does not, in my opinion, weaken this conclusion, as it is in such cases a mere expletive, used, or not, according to the ear of the writer. The rule which has been mentioned is particularly necessary to be attended to, in regard to fees of Office, since the experience of all countries has shewn, that latitude, in this particular, is liable to much abuse, to the great vexation and oppression of the citizen.
2. Though it is true that the words “and” and “or” are sometimes considered as synonimous in legal constructions; yet it is generally to answer some purpose, which the law favours, as the giving effect to some general maxim of law, some general rule of property, some general principle of public policy, &c. The constructive extension of fees of Office is presumed not to be of this nature. The very act upon which the present question arises appears anxious to guard against the danger of abuse from this quarter, by annexing penalties to the demanding of any other or greater fees than are allowed. If there had been no case in which the two items concurred as parts of one entire service, it would have been a good reason for considering them as distinct, though with some violence to literal construction; but as they do so unite in certain cases, it is a strong argument against the separation contended for.
3. It appears to have been the intention of the Legislature to make a separate enumeration of the same or exactly similar services, annexing to each a separate compensation; and avoiding the conjunction of dissimilar services, though attended with equal compensations, as in the instances of permits to land goods of foreign growth or manufacture and bonds; for each of which services twenty cents are allowed. The idea of greater affinity between the services in question, as a reason for their union, is not founded. In the cases, in which they are really distinct, they are as dissimilar as any two operations can be. The circumstance alluded to is said to be a slight one. Alone, it is confessed, it would have no very decisive weight, though it would not be to be disregarded; yet it is of a nature to fortify other considerations.
4. An Entry and the receiving of and qualifying to a Manifest, in all cases under the 27th section, are essentially one and the same act; to construe them as several in these cases, would be to multiply one act and one service into two acts and two services; and yet it is not perceived, if a several compensation is understood to be annexed to them, as several services, how it should not apply, when they are performed by one person, as well as when they are performed by two persons.
5. The association of an entry with the receiving of and qualifying to manifests in cases arising under the 27th section is a natural one; the two things being coupled, or rather the one thing constituting the other; but the association of the latter, in cases arising under the 25th and 26th sections where outward bound vessels are contemplated, with the entries of inward bound vessels, would be unnatural and incongruous. The entry being the primary and leading idea, the receiving of and qualifying to the manifest, as incidents to it, are naturally mentioned in the same clause; but not so, if they refer to a substantive and independent service, having a different object, and preceding the entry in the order of the transaction.
It has been objected that it would have been tautology to have mentioned the receiving of and qualifying to manifests, if they did not mean something distinct from the entry under the 27th section, of which they form a part. But there are other entries, those under the 28th section, with which they do not coincide; and the supposition is, that they were meant to describe the entries under the 27th section, and that a compensation for those under the 28th has been, through mistake, omitted.
6. The construction, which makes the services and the compensations several, will operate in many instances oppressively to the citizens engaged in the business. If a vessel takes on board foreign goods of no greater value than 200 dollars, or 400 gallons of ardent spirits, in one district, and delivers them in another, even in an adjoining one, she will have to pay—
|For receiving and qualifying to her manifest in the District from which she departs,||60|
|For a permit to proceed to the place of destination,||25|
|For receiving her entry at the port of delivery,||60|
|For a permit to land,||20|
Again, if a vessel takes on board a single barrel of flour in one district to be delivered in another, even an adjoining one, where there is a Collector or Surveyor, she will have to pay
|For receiving her entry at the port of delivery,||60|
|For receiving and qualifying to her manifest at the same port,||60|
In both cases considerably more than the freight of the articles may amount to—and more than, it is conceived, would be a due compensation for the services rendered, and a reasonable burthen on the trade.
An idea, indeed, has been entertained, that though the service be several and entitled to a distinct compensation, it is not so in regard to cases of the last mentioned kind, because the receiving of and qualifying to manifests is there involved in the entry. But this, it is conceived, would be a departure from consistency of construction. If a particular compensation is annexed to a particular service, as such, and in the abstract, it follows the service, and attaches itself to it, whether performed by the same or by different persons, whether separately or in connection with another service—especially, if the law designates the latter service as contradistinguished from the former. It is to be remembered too, that the entry always carries with it the receiving of a Manifest, though not always the qualifying to it.
It has been said, that whether the compensation would be excessive or not, is a question merely for the Legislature. But certainly a presumption of the intention of the Legislature, not to burthen the trade, is a circumstance, which ought to serve as a guide in the construction of provisions, which, it must be confessed, are not free from ambiguity. And this presumption in the present case is suggested by the general policy of the Coasting Act, which evidently aims at privileging and protecting the Coasting Trade.
I shall now take notice of some of the arguments which have been used for a construction opposite to that which I adopt, and which have not been already adverted to.
1. It has been observed that it is customary for the fees of entry and clearance to be equal—that this is so by the Collection Law7 of the United States, and that it is probable the Legislature intended to preserve the same equality in the Coasting Act.
But this equality would not attend the construction, for which it is made an argument.
The true Clearance in the Coasting Act is the permit to depart; and for that the fee is expressly twenty five cents. The entry-fee would be in every case sixty cents in cases under the 27th section, if uniformity of principle be preserved, it would be 120 cents. If the receiving and qualifying to the Manifest are taken in connection with the Clearance, then the expence of a Clearance would be 85 cents, that of an entry in some instance 60, in others 120—for by no mode of reasoning can the fee for the permit to depart, which is the real clearance, be excluded from the comparison.
2. It is objected to my construction, that greater services relating to foreign goods are less compensated, than lesser services relating to domestic commodities; which cannot reasonably be presumed to have been the intention of the Legislature.
This is true, and it constitutes an objection of weight, but not a conclusive one. It is not a very uncommon case for the law to be defective in provisions, necessary to fulfil the intentions of the framers of it; and where the main design of the law would not be fulfilled without supplying, by construction, the deficiency of provision, great latitude ought to be taken. But this is not so as to mere collateral points—no way essential to the principal objects of the law. There, omissions may easily be supposed and admitted, and they ought not to be supplied either by any violence to the literal expression, or at the price of more important inconveniences. Where the question is between individual advantage and public mischief; as by forming a precedent liable to abuse, or by throwing an undue burthen on a branch of industry;—no latitude of construction ought to be indulged to attain the former.
It is certain that the Act in question is very inaccurately drawn, and, in many particulars, unprovisional, which is the reason for admitting it to be so in the particular under consideration.
’Tis not the only instance in which entire classes of services are omitted to be compensated. In this predicament are licenses for vessels under twenty tons—the endorsing upon Registers, &c.—memorandums of changes of Masters and giving notice of them—the administering of oaths, generally, and even where they constitute distinct services, as where the Collector of one District takes the oath of an Owner, in order to the registering of a vessel in another District, which is also attended with the additional service of a transmission to the last mentioned Collector—Permits to land goods not of foreign growth and manufacture.
Hence the idea of finding a compensation for each service is a delusive ground of argument, and that of a proportional compensation is not less so. It belongs indeed to neither construction. It has been already seen that an entry, attended with the only additional circumstance of swearing the Master of a vessel to his Manifest, would carry double the compensation of an entry without that circumstance.
3. It has been remarked, as repelling the inference to be drawn from omissions in other cases, that in this the service has been mentioned by the Legislature, and as of equal respectability with an entry—and that, therefore, it ought not to be denied a compensation.
In what light it may be conceived to have been mentioned has been stated; as incidents to the entry in certain cases descriptive of it. But it will not follow that when circumstances, which are incidents in particular cases, are mentioned, in immediate connection with the main object, that the specification is intended to extend to other cases, in which they are incidents to a different service, namely, the certifying of the duplicate manifest and the permit to depart, or the clearance.
Three circumstances operate, in this view of the subject, against the supposition, that the receiving of and qualifying to manifests were intended to be renumerated as independent services.
1. They are in no case such. They are either pre-requisites to the certificate and permit directed by the 25 and 26th sections, which are the principal services there, or concomitants of the entry directed by the 27th section.
2. If the specification was intended to refer specially to cases under the 25 and 26th sections, as has been alleged, the expression would naturally have been “for receiving, qualifying to and certifying every manifest.”
3. The receiving and qualifying to manifests are constantly incidents to entries and clearances under the Collection Law; and yet they have no distinct renumeration as such. The qualifying to any document is, in none of the Revenue laws, a subject of particular compensation, and yet as the certificate is not mentioned, and as the permit to depart has a distinct fee, there seems to be no other act left, to which the fee of 60 cents is to attach itself. Is it probable that the Legislature intended so considerable a recompence for a service in this case, which in every other they have omitted to reward? Certainly, at least, the argument which asserts that those services would not be intended to be performed for nothing, fails. If they are rewarded under the Collection law, in the fee for a Clearance; so may they equally be conceived to be rewarded under the Coasting Act, in the fee for the permit to depart, which is there the Clearance also. This fee cannot even be said to be inadequate to the whole service, in that case to be performed; the parts of which are the administering an oath, the certifying upon the manifest, which is supposed to be produced by the party “that it had been sworn (or affirmed) to, and delivered according to law,” and the granting permit to depart. Some stress has been laid upon the word every.8 I take this to be, as here used, merely calculated to denote the singular number; and to operate distributively only, as to the plural word “vessels” which follows.
I shall barely add, for greater caution, that the instruction which is meant to be rescinded is merely that which relates to the meaning of the following clause: “For every entry of inward Cargo directed to be made in conformity with this Act, and for receiving of and qualifying to every manifest of vessels licensed to trade as afore-said.”
With much consideration, I am, Sir, your obedient Servant,
P.S. I should think it a better and more equitable construction of the Act than that which considers the two things as several, to reject, as mere surplussage, the words “and for receiving of and qualifying to every manifest of vessels licensed to Trade,”9 annexing no fee to it, in any case; but leaving the entry in every case, as well on the 28 and 27th sections, to be entitled to a fee of sixty cents.
LS, RG 36, Collector of Customs at Boston, Letters from the Treasury, 1789–1818, Vol. 5, National Archives; LS, Office of the Secretary, United States Treasury Department; LS, MS Division, New York Public Library; LC, Essex Institute, Salem, Massachusetts; LC, RG 56, Circulars of the Office of the Secretary, “Set T,” National Archives; LC, United States Finance Miscellany, Treasury Circulars, Library of Congress.
1. “An Act for Registering and Clearing Vessels, Regulating the Coasting Trade, and for other purposes” (1 Stat. description begins The Public Statutes at Large of the United States of America (Boston, 1845). description ends 55–65 [September 1, 1789]). For the relevant portions of the act, see Edmund Randolph to H, June 21, 1792, notes 4–8.
7. “An Act to provide more effectually for the collection of the duties imposed by law on goods, wares and merchandise imported into the United States, and on the tonnage of ships or vessels” (1 Stat. description begins The Public Statutes at Large of the United States of America (Boston, 1845). description ends 145–78 [August 4, 1790]).
8. See note 1.
9. See note 1.