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 and 14, 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 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 description begins Elizabeth E. Hoon, The Organization of the English Customs System, 1696–1786, N.Y., 1938. description ends 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, 14, 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, 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) description begins Appendixes to Quincy, Reports. description ends 425–426, 541–557. See generally Barrow, Colonial Customs description begins Thomas C. Barrow, The Colonial Customs Service, 1660–1775 (Harvard Univ. doctoral dissertation, 1961). description ends 262, 352–360; see also No. 44, note 21. As to the Surveyor General’s power to suspend and appoint, see note 11 below.

7. The text of Folger’s commission, dated at Boston, 17 Aug. 1764, and signed by Temple, is as follows:

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, 11, 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 below.

9. The reference is not clear. The phrase may simply echo the thought expressed in text at note 27 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 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 description begins Charles McLean Andrews, The Colonial Period of American History, New Haven, 1934–1938; 4 vols. description ends 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

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 above. After reciting the failure of the earlier act, it provided that if, in the same categories of actions, as well as

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:

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 description begins Thomas C. Barrow, The Colonial Customs Service, 1660–1775 (Harvard Univ. doctoral dissertation, 1961). description ends 37–41.

14. An undated MS copy of the relevant portion of this section in JA’s hand reads:

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 description begins Thomas C. Barrow, The Colonial Customs Service, 1660–1775 (Harvard Univ. doctoral dissertation, 1961). description ends 118–130, 133–136; 4 Andrews, Colonial Period description begins Charles McLean Andrews, The Colonial Period of American History, New Haven, 1934–1938; 4 vols. description ends 163–165, 213–215; No. 44.

15. Presumably a reference to 7 Geo. 3, c. 41, §3 (1767), which provided that

See Auchmuty’s discussion of this point, text at note 19 below.

16. According to Blackstone, when Edward IV assumed the throne,

1 Blackstone, Commentaries description begins William Blackstone, Commentaries on the Laws of England, Oxford, 1765–1769; 4 vols. description ends *204; see also 4 id. at *77–78; compare 1 Hale, Pleas of the Crown description begins Matthew Hale, Historia Placitorum Coronse: The History of the Pleas of the Crown, London, 1736; 2 vols. description ends 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 description begins C. Viner, General Abridgment of Law and Equity, Aldershot, 1741–1753; 23 vols. description ends , 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. description begins E. Lutwyche, Un Livre des Entries; contenant auxi un Report des Resolutions del Court sur diverse Exceptions prises as Pleadings et sur auters matters en ley, surdant (pur la plupart) en le Court de Common Bank, London, 1704; 2 vols. description ends 519. Trin. 6 W. & M. in Case of Knight v. the Corporation of Wells.” 16 Viner, Abridgment description begins C. Viner, General Abridgment of Law and Equity, Aldershot, 1741–1753; 23 vols. description ends , tit. [Officers and] Offices, G. 3, pl. 3.

19. 

20. 

21. For this usage, see No. 55, note 8.

22. That is, the parenthetical phrase in Folger’s commission, note 7 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,

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 description begins John Langdon Sibley and Clifford K. Shipton, Biographical Sketches of Graduates of Harvard University, in Cambridge, Massachusetts, Cambridge and Boston, 1873– . description ends 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 description begins Thomas C. Barrow, The Colonial Customs Service, 1660–1775 (Harvard Univ. doctoral dissertation, 1961). description ends 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, note12 above.

25. Otto v. Selwin, 2 Lev. description begins Creswell Levinz, Reports of Cases in the Court of King’s Bench and Common Pleas, during the time of Sir R. Foster, Sir R. Hyde and Sir J. Kelyng were Chief Justices: also cases in other Courts during that time, London, 1702. description ends 131, 83 Eng. Rep. description begins The English Reports; 176 vols. A collection and translation into English of all the early English reporters. description ends 483 (K.B. 1675), citing The Case of the Marshalsea, 10 Co. Rep. description begins Edward Coke, Reports, London, 1727; 13 parts. description ends 68b, 77 Eng. Rep. description begins The English Reports; 176 vols. A collection and translation into English of all the early English reporters. description ends 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 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.