I intended to have done myself the honor of waiting on you this evening but the dampness of the weather prevents my going abroad I therefore take the liberty of enclosing my opinion on the paragraph in the constitution which you were pleased to mention; the result of my conference with Mr Jay on the subject of sea letters; and the lights I have received by examining the laws of Pensylvania and Massachusetts touching the Naval Officer and the collector of the customs or duties. With the greatest respect I have the honor to be, May it please the president Your most obedient & Most humble servant

Enclosure

On this clause of the Constitution touching the powers of the President viz. “He shall nominate and by and with the advice and consent of the Senate shall appoint Ambassadors, other public ministers and Consuls, judges of the supreme court and all other officers of the United States whose appointments are not herein otherwise provided for and which shall be established by law.” It appears that ambassadors, other public minister and consuls, and judges of the Supreme court are on the same footing, that is officers recognised by the Constitution & the existence of whose offices does not depend on, or require a law for their establishment, Though an Act will be necessary for their support: that as he has power, by and with the advice and consent of the Senate to make treaties, provided two thirds of the Senators present concur, So treaties being made he may in consequence thereof at his discretion nominate and by and with the advice and consent of the Senate appoint Ambassadors, other public ministers and consuls, consequent to such treaties. The last words “and which shall be established by law” appear by every rule of construction to be confined to “all other officers of the United States whose appointments are not herein (namely in the constitution) otherwise provided for.[”]

Touching the granting of Sea letters

On the 12 february 1788, Congress Resolved That the Secretary for foreign [affairs] for the time being be and he is hereby authorised and directed upon application made to him for that purpose to grant in the usual form Sea-letters for any vessel or vessels owned entirely & navigated chiefly by citizens of the United States and bound on long and distant voyages at his discretion; provided always that it be made to appear to him by oath or affirmation or by such other evidence as shall by him be deemed Satisfactory by the person or persons applying therefor, that the vessel or vessels, for which such Sea letters shall be required, shall together with all and every part of her cargo be owned entirely and commanded by officers citizens of the United States and shall be navigated for the most part by the same. That for this purpose the Secretary for foreign affairs be and he is hereby instructed to procure a sufficient number of blank Sea letters drafted in the usual form and signed by the president of Congress for the purpose aforesaid, and that the same when filled up be sealed with the seal of the United States, and certified by the Secretary of Congress.1

The usual form of the Sea letters is as follows Most serene, Serene, Most puissant, puissant, high illustrious, noble, honorable, venerable, wise, and prudent Emperors, kings, republics, princes, dukes, earls, barons, lords, burgomasters, counsellors, as also judges, officers, justiciaries and regents of all the good cities and places, whether ecclessiastical or secular, who shall see these patents, or hear them read.

We the United States in Congress assembled make known that [ ] captain of the ship called [ ] is a citizen of the United States of America and that the ship which he commands belongs to citizens of the said United States and as we wish to see the said [ ] prosper in his lawful affairs our prayer is to all the before mentioned and to each of them separately where the said [ ] shall arrive with his vessel and cargo, that they may please to receive him with goodness and treat him in a becoming manner, permitting him upon the usual tolls and expences in passing and repassing, to pass navigate and frequent the ports, passes and territories, to the end to transact his business where and in what manner he shall judge proper, whereof we will willingly be endebted. In testimony we have caused the great Seal of the United States to be hereunto affixed Witness his Excellency [ ] President of the United States in Congress assembled this [ ] day of [ ] in the year of our Lord [ ] & of the sovereignty and independence of the United States of America [ ].”

Though there can be no doubt but that the President may in virtue of his powers grant Sea letters to vessels belonging to citizens of the United States bound on long and distant voyages, yet it does not appear from the foregoing resolution and form of Sea Letters that the Secretary for foreign affairs can now grant Sea letters in the usual form nor the Secretary of Congress Seal and certify the same; nor that the Sea letters now to be issued can run in the form prescribed. On consultation, both the Secretary of Congress and the Secretary for foreign affairs concur in this Opinion.

Touching the naval Office and the Office of Collector of the Customs in Pensylvania

By a law of Pensylvania passed the 10 Sept. 17782 Masters of vessels shall within 48 hours after arrival in port enter at a naval Office & make report, on oath, of all goods wares & merchandize in such vessel, setting forth the packages, marks & numbers thereof and the nature of their contents & his own name and the name and burthen of the ship, and the names and abodes of the owner or owners thereof, the port or place where the cargo was shipped with the documents usually furnished in such place: Masters of Vessels outward bound are first to report to the said Office the intended voyage & before the vessels proceed to sail deliver, under oath to be administered by the Officer, a manifest of the outward cargos. All vessels belonging to subjects of the State to be registered in the said office, for which purpose one or more of the owners shall certify on oath or affirmation to the naval Officer the name burthen, shape and Kind of vessel together with the name of the master, the place of construction and the name or names of the owner or owners thereof and the parts or shares they respectively hold in the same; and the naval officer shall register such vessel in a book kept for the purpose and furnish an attested copy of Such register.

The naval officer is paid by fees fixed by law for entering & clearing out for entering registers & granting certificates thereof and for permits to unload. By an act passed 23 Decr 17803 an impost as laid on goods imported, which impost was to be received by the naval Officer who was to keep a true account of his doings and once in every month pay over to the treasurer of the State the monies received, & once in every six Months or oftner if required settle with the State auditor; for this service he was allowed ½ per cent on the Monies received & paid over and 2/ from the party executing any bond for each bond given for duties. It appears that by an Act passed the 15 March 1784 Sharp Delaney was appointed Collector.4 This act is not in the office—But by an Act passed the 2 April 1785 entitled a supplement to the Acts for raising an impost and to secure more effectually the revenues arising from the same5 it appears that both officers were continued and their duties as far as they relate to the collection of the impost are regulated as follows

1. All goods imported are to be entered with the collector.

2. Such entry before permit is given for landing is to be examined & compared by the naval Officer with the manifest of the cargo lodged by the Master of the vessel at his office and a certificate of his approving the same to be sent to the collectors office & filed upon which the collector is to grant a permit for unloading.

3. The collector or deputy collector, or the naval officer or his deputy, on reasonable cause of suspicion, may open and examine any bale, box &c. and if fraud be discovered, the goods shall be forfeited one half thereof to the use of the State, the other half to him or them who made the seizure.

4. The book of register Kept by the naval officer for registering entries made at the collectors office, and the manifests lodged and filed in the naval office by the masters of vessels or a fair transcript thereof to be lodged in the comptrollers office as checks for the examination & settlement of the accounts of the collector. The naval officer to be allowed six pence for every entry he examines and to take an oath for the faithful discharge of his duty.

The collector to give bond with sufficient sureties for faithfully accounting and paying over the money received.

a M[r] Phyle has been naval officer of the port of Philadelphia And Mr Sharp Delaney Collector of the said port.6

In the commonwealth of Massachusetts

By an act passed 1 Novr 17817 an excise is laid on wine, rum, brandy & teas and on wheel carriages and for the collection thereof one collector is to be annually appointed for each county.

By an act passed March 17828 persons importing wine rum brandy or teas, and all persons distilling spirituous liquors are prohibited from selling the same without permits so to do from the collector of excise or his deputy.

By an act passed Novr 17829 a new duty or excise was laid on a great number of articles therein specified, both imported and made in the state. No imported goods are to be landed without a permit from the naval officers or in case of no naval officer in the port from the collector of excise in the county, and where there is no naval officer, collector or deputy in the port, from the town clerk or a selectman. No permit for landing to be given by a naval officer till a manifest of the cargo, on oath, is lodged with him. Collectors and naval officers are empowered to seize.

The collector of each county is to account with the treasurer of the commonwealth for the money received for duties or penalties & to pay the same into the treasury quarterly.

The collectors appointed in the several counties under former acts are to receive & collect the duties mentioned in this act till others are chosen in their room. Suitable persons are to be appointed annually for executing the duties assigned to collectors with such allowances for their services as shall be determined when they shall be appointed.

On the 22 March 178310 an impost was laid on certain goods wares and merchandize which was to be collected by the same officers in the same manner and under the same regulations as prescribed in the Act of Novr 1782. A further impost was laid July 178411 And in addition to this another act was passed July 178512 laying an impost and excise on a great number of enumerated articles, which duties of impost and excise were to be collect⟨e⟩d by the same persons and in the same manner as prescribed in the acts to which this is an Addition.

In July 1784 an Act was passed establishing naval offices in the several towns of Boston, Salem, Marblehead, Newburyport, Gloucester, Ipswich, Beverly, York, Penobscot, Pepperelborough, Falmouth, Booth bay, Goldborough, Machias, Passomoquaddy, Bath, Plymouth, Barnstable, Dartmouth Dighton Edgar town & Sherburne in Nantucket.13

The naval officers are to give bond & be sworn; their duties are to grant registers for and to enter and clear out vessels; to take manifests on oath of cargoes imported or exported & keep records thereof; to grant bills of health to take bonds required; to secure duties on the lading of vessels hovering on the coasts; to make a weekly return to the county collector of the vessels entered or cleared at their offices, with Copies of the manifests of the cargoes; and every six months to render to the secretary of the state a fair transcript of the entries & clearances & manifests of cargoes. And by an Act of the 2d of the same Month they are to receive and account for a duty of tonnage laid for support of light houses.14 An act of the same month regulates the fees to be received by the naval officers and prescribes the forms or registers, clearances permits &c. to be used in the Offices.15

From these acts it appears that the impost and excise are blended & collected by the same officers and that for the collection of them there is a collector for each county in the commonwealth; And that besides the collectors office there is a naval office for entering and clearing Vessels &c.

The propriety of keeping up both offices and the necessity of the naval officer being an Officer of the United States is apparent from these considerations.

1. The naval officer can greatly assist the collector of the duties and furnish the best documents to check the accounts of the collector.

2. He can keep a register of the vessels belonging to Citizens of the United States & enforce the acts of Navigation.

3. He is the proper officer to furnish the papers required by the treaties of Commerce between the United States and foreign nations.