Adams’ Minutes of the Argument1
Court of Vice Admiralty, Boston, March 1768
Folger vs. Hallowell.
The Affairs and Transactions of the Customs and Revenue, are very loose. Customs and Duties and subsidies, have from Time to Time been granted by Parliament to his Majesty and the Collection and Management of them has been committed by Parliament to his Majesty, in short the Crown seems to have been entrusted with a discretionary Power <
by the Parli> of appointing as many Sorts of Officers and as many in Number, as are or shall be thought convenient. We hear of Surveyors, Collectors, Searchers, and Comptrollers but there is not any act of Parliament, which describes and limits their Provinces and Powers.2
Compare the Commission of the Commissioners with the Act of Parliament on which it is grounded. How small the Foundation! How mighty the super Structure! Are there no Powers in the Commission which are not pointed out in the Act?3
Compare the Act that empowers the King to constitute Commissioners at Home, with the Powers exercisd by them,4 and by the late Surveyors General as Representatives of them.5 The Commission empowers to suspend, and remove &c. Does the Act of Parliament enable the K. to give such Powers to Commissioners?
Where did Mr. Lechmere get his Authority to suspend Mr. Barons as Collector of this Port? He claimed an Authority, and exercised it of suspending.6 Yet there is no Act of Parliament in the whole Statute Book, that enables the K. or Commissioners of Customs or any Body else to create such an officer as Surveyor General.
Continuance of Deputations &c. after Death of Commissioners. 12. Ann. St. 2, c. 8, §13.12
Comrs. of Customs. 25th. Car. 2, Chap. 7 §3.13
Comrs. of Customs and Lds. of Treasury to appoint officers. 7. & 8. W. 3. Chapt. 22§11.14
7. G. 3d15
Mr. Otis. Admitted an officer De Facto, and therfore have given up their Cause. Distinction between King De Jure and De Facto.16 Maxim officers to be favoured.
Viners Abridgment Tit. Officers, and Offices G, Plea 2. Keeper of Goal De Facto, and De Jure.17 Mayor De Facto.18 G. 4, Plea 2. All Judicial Acts shall be good.19Colour of Election all Judicial and Ministerial Acts good.20
Evidence that he was in Fact an officer, an officer De Facto.
If it should appear that the King was deceived21 in his Grant and issued a Commission to the Commissioners that was void, would it be pretended that all their Acts and Orders through the Continent were void? No. Their Reputation And Exercise, sufficient to make their Acts and orders good.
All the Officers Comptrollers, Searchers Inspectors and even Commissioners them selves are only Preventive officers, none of them are to collect his Majesty’s Duties.
Wonderfull Parenthesis (in my Behalf).22 These Words cant make Folger a Deputy, merely Surplussage, currente Calamo, and may go out again without injuring the Commission.
If not rejected as surplusage, yet capable of several Constructions that will not vitiate or render void the Commission.
Whether the Surveyor General had, and the Commissioners have a Power to dismember a Port, or to make any Alterations in a Port, Yet if they will undertake to do it, it must be good till set aside by superiour Authority.
Lechmere went to England and appointed Coll. Brinley his Deputy in his Absence, and many of the officers got him to allow them salaries &c. Wages, Fees or some thing that they never could get before, and particularly the present Commissioner Paxton got a large sum at that Time.23
A Deputy Sherriff would be liable to an Action if he should act after the death of his Principal, but this is not the Case of the Custom House officers. Their Deputations or other Authorities, are not nullified by the Demise of the Crown, any more than the Judges.24
2 Lev. 131. 10. Co.——.25
Sewall. General Question, whether Mr. Folger had any Authority to make the Seizure.
The supposition of his having another Commission besides this from Temple.
Q. whether I have not offered such Evidence of his Having no Authority, as shall oblige Folger to produce <
his> some other Commission.
The Act of 6. G. 1, c. 21, §24.26 intended for the security of the Officers and off the Revenue. It is inconsistent with Common sense to suppose that the Legislature had any such Case in View, as this before your Honour.
This Act not extended to America.
I believe there is no Bottom to this Affair of the Customs.
By fair Contract the officers entituled to all the Fees within Their District.27
In my Behalf, intended to make him Deputy, not to make a new office or officer. No Person can make a Deputy but the Principal. No Surveyor General can make a Deputy Collector, any more than I, as Advocate can make a Deputy Judge of Admiralty, or than your Honour can make Deputy Advocate General.
Surveyor and Searcher.28
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.
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 customs and other duties, now under the management of the several and respective commissioners of the customs of England and Scotland, shall and may be put under the management of one commission of the customs for the whole united kingdom, or under the management of several commissions of the customs for England and Scotland respectively, from time to time, as his Majesty shall judge to be most for the advantage of trade and security of his revenues.”
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:
“To all People to whom these presents shall come, Know ye, That I the Surveyor General of his Majesty’s Customs in the Northern District of America, By Vertue of the Power and Authority to me given, Do hereby appoint Timothy Folger to be Searcher and preventive Officer in his Majesty’s Customs at the Island of Nantucket in the Province of Massachusetts Bay and by Vertue of these presents he hath Power to enter any Ship, Bottom, Boat, or any other Vessel, as also into any Shop, House, Warehouse, Hostry, or other Place whatsoever, to make diligent Search into any Trunk, Chest, Pack, Case, Truss, or any other Parcel or Package whatsoever, for any Goods, Wares or Merchandize, prohibited to be Imported or Exported, or whereof the Customs or other Duties have not been duly paid, and the same to Seize (in my behalf) to his Majesty’s Use, and also put in Execution all other the lawful Powers and Authorities for discharging the Trust reposed in him as an Officer of the Customs In all things proceeding as the Law directs; Hereby praying and requiring all Officers both Civil and Military In the Province of the Massachusetts Bay to be aiding and assisting to him the said Timothy Folger in all things as becometh.” Book of Commissions, 1677–1774, fol. 39, M-Ar.
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
“if upon trial or trials of or in any information, action, suit or prosecution whatsoever relating to his Majesty’s duties of customs and excise, or to either of them, or to any other his duties whatsoever, or to any seizure or seizures, penalty or penalties, forfeiture or forfeitures, relating to the said duties, or any of them, or if upon any trial or trials of or in any action, suit or prosecution whatsoever against any person or persons, for anything done by virtue or in pursuance of any act or acts of parliament relating to the said duties, any or either of them, any question or questions shall be made, or any doubt or doubts, dispute or disputes, shall arise or happen, touching or concerning the keeping of any office or offices of excise in any city or cities, town or towns, or touching or concerning any one or more defendants being an officer or officers of or for the said duties, any or either of them, that in every such case and cases proof shall and may be made, or evidence given, either of the actual keeping of such office or offices of excise in such city or cities, town or towns, or of such one or more defendants actually exercising of and being employed and intrusted in such office or offices respectively, before and at the respective time and times when the matter or matters in question upon such trial or trials shall happen to have been done or committed, or omitted, or neglected to have been done or performed, without producing any particular person or persons to prove the names of the particular and respective commissioners to any commissions in the respective cases before-mentioned, any or either of them, to be of their own hand-writing; and that in every such case and cases respectively such proof and evidence shall be deemed and taken to be legal and sufficient evidence, unless or until by other evidence the contrary shall or do appear.”
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
“upon the trial of any information or indictment for assaulting, resisting or obstructing any officer or officers of the customs, excise or duties upon salt, or other duties due and payable to his Majesty, in the execution of his or their respective office or offices, or for rescuing any goods or merchandizes seized or to be seized by any such officer or officers; any question shall arise, whether any person be an officer of his Majesty, his heirs or successors, of or for any of the said duties: in every of the said cases, proof shall and may be made and admitted, that such person was reputed to be and had acted in, and in fact exercised such office, and at the respective time and times, when the matter or matters in controversy upon such trial or trials shall happen to have been done or committed, or omitted to have been done or performed, without producing or proving the particular commission, deputation, or other authority, whereby such officer was constituted and appointed, and that in every such case such proof shall be deemed and taken by the judges or justices before whom any such trial shall be had, to be good and legal evidence, unless by other evidence the contrary shall be made to appear; any law or usage to the contrary hereof notwithstanding.”
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:
“And for the better Collection of the several Rates and Duties aforesaid imposed by this Act, be it enacted and it is hereby further enacted by the Authority aforesaid, that this whole Business shall be ordered and managed, and the several Duties hereby imposed shall be caused to be levyed by the Commissioners of the Customs in England now and for the Time being, by and under the Authority and Directions of the Lord Treasurer of England or Commissioners of the Treasury for the Time being.” Adams Papers, Microfilms, Reel No. 185.
14. An undated MS copy of the relevant portion of this section in JA’s hand reads:
“And for the better executing the several Acts of Parliament relating to the Plantation Trade, be it enacted, that the Ld. Treasurer, Commissioners of the Treasury, and the Commissioners of the Customs in England for the Time being, shall and may constitute and appoint such and so many officers of the Customs in any City, Town, River, Port, Harbour, or Creek, of or belonging to any of the Islands Tracts of Land and Properties, when and as often as to them shall seem needfull.” Adams Papers, Microfilms, Reel No. 185.
15. Presumably a reference to 7 Geo. 3, c. 41, §3 (1767), which provided that
“all deputations, and other authorities, granted by the commissioners of the customs in England before the passing of this act, or which may be granted by them before any commission or commissions shall issue in pursuance of this act, to any officer or officers acting in the said colonies or plantations, shall continue in force as fully, to all intents and purposes, as if this act had not been made, until the deputations or other authorities, so granted to such officer or officers respectively, shall be revoked, annulled, or made void, by the high treasurer of Great Britain, or commissioners of the treasury for the time being.”
16. According to Blackstone, when Edward IV assumed the throne,
“after a breach of succession that continued for three descents, and above threescore years, the distinction of a king de jure, and a king de facto began to be first taken; in order to indemnify such as had submitted to the late establishment, and to provide for the peace of the kingdom by confirming all honors conferred, and all acts done, by those who were now called the usurpers, not tending to disherison of the rightful heir.”
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.
“Acts done by an Officer De Facto, and not De Jure, are good; As if one being created Bishop, the former Bishop not being deprived or removed, admits one to a Benefice upon a Presentation, or collates by lapse, these are good and not avoidable. Arg. Quod Curia Concessit; for the Law favours Acts of one in a reputed Authority, and the inferior shall never inquire if his Authority be lawful. Cro. E. 699. Mich. 41 & 42 Eliz. B.R. in Case of Harris v. Jays. [In the margin:] S.P. Where the Bishop De Facto made a Lease which was confirmed by the Dean and Chapter, and after the Bishop De Jure died in the Life of the Bishop De Facto; it was resolved, that he not being lawful Bishop, and this Lease being to charge the Possessions of the Bishoprick, it is void; altho’ all Judicial Acts, as Admissions, Institutions, Certificates, &c. shall be good; but not such voluntary Acts as tend to the Depauperation of the Successor, and so affirmed a Judgement given in B.R. in Ireland. Cro. J. 552, 554. Reuan Obrian & al. v. Knivan.” 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. 4, pl. 2.
“If one is elected Mayor of a Corporation without being duly qualified according to a late Charter, to be chose into that Office, and after such Election he puts the Seal of the Corporation to a Bond, this Obligation is good: For by his coming into the Office by Colour of an Election, he was thereby Mayor De Facto, and all Judicial and Ministerial Acts done by him are good; and tho’ the Corporation might have removed and displaced him, yet this not being done he had Power to seal the Bond. Lutw. 508. 519. Trin. 6 W. & M. 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. 4, pl. 3.
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,
“Mr. Otis said the commission, he thought, was very Good, but that there was one Expression in it that some People Hesitated about and Repeated the Sentence in the Commission which Runs thus—and in my Behalf to seize for his Majesty’s Use—Upon repeating of this Sentence Mr. Mollineux [said] ’Now Gentlemen, you see that I am Right in what I said,’ and seemed to lay great Stress upon these words—in my Behalf—signifying that whatever seizures were made by Folger, he, the said Folger, was not to have the profit arising from such seizures but the Surveyor General and that the Surveyor General gave him his Commission on these terms.” Rowe, Letters and Diary description begins Letters and Diary of John Rowe, Boston Merchant, 1759–1762, 1764–1779, ed. Anne Rowe Cunningham, Boston, 1903. description ends 150–151 (11 Feb. 1768).
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.
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.