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 the Commissioners.5 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 Commissioners confirmed.6 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
1. Butler v. The Union, Vice Adm. Min. Bk., 12 May 1769; Massachusetts Gazette, 18 May 1769, p. 1, col. 3. The Union was seized for an alleged unloading of molasses before entry on a former voyage in March 1768. On learning of the seizure the Commissioners directed that she be libeled in Butler’s name and that prosecutions be commenced against her master, Edward Hales, and one John Gary, for aiding in the unloading contrary to 4 Geo. 3, c. 15, §37, the act under which Hancock was prosecuted. See No. 46, notes 5–6; Commissioners to Salem Customs Officers, 5 May 1769, Salem Custom House Record Book, 1763–1772, p. 285, MSaE. Butler, appointed “Customs Officer” in March 1768, had immediately made himself so disliked that the customs boat in his charge was burned by a mob. In spite, or perhaps because, of this he was appointed Tide Surveyor of the Port in Aug. 1768, with the function of inspecting cargoes. He served in this capacity until at least Jan. 1775. See id. at 63–64, 227–234, 241–242; note 17 below. See also Salem Custom House Letter Book Outwards, 1772–1775, 9 Jan. 1775, Office of the U.S. Collector of Customs, Boston, Mass.
2. Minutes of the Commissioners, 22 June 1769, 7 Bowdoin-Temple MSS 180, MHi. It is not clear whether the reference was to Samuel or Josiah Quincy Jr. Sewall voyaged to Halifax and back aboard the Rose, the vessel involved in Rex v. Corbet, No. 56, which at this time was engaged in removing a portion of the British garrison from Boston. Boston News-Letter, 22 June 1769, p. 2, col. 1; Massachusetts Gazette, 13 July 1769, p. 1, col. 2. See “A Journal of the Times,” 25, 29 June 1769, Dickerson, Boston under Military Rule description begins Oliver M. Dickerson, ed., Boston under Military Rule, 1768–1769, As Revealed in A Journal of the Times, Boston, 1936. description ends 112–113.
4. Vice Adm. Min. Bk., 12 May 1769. Dismissal suggests a disposition on such a preliminary question. See Folger v. The Cornelia, No. 45, Doc. III, where the information was dismissed in a case similar to that here. Likewise, in Dawson v. The Dolphin, No. 51, Doc. II, the libel was dismissed on the ground that it did not state a cause of action. Compare Dawson v. Lighter and Molasses, cited in No. 47, note 5, where the decree upheld the libel as to part of the seizure and adjudged the remainder not forfeit.
5. See text at note 4 below.
6. See note 6 below. In colonial appointments the English Commissioners had followed the system used in England, whereby they in practice recommended candidates for principal positions within their jurisdiction, but made the actual appointments only upon Treasury warrant. Hoon, English Customs description begins Elizabeth E. Hoon, The Organization of the English Customs System, 1696–1786, N.Y., 1938. description ends 195–198. Failure to remedy this lack of control over appointments was a major error in the creation of the American Board which led to much of its later difficulty. Clark, “The American Board of Customs,” 45 AHR description begins American Historical Review. description ends 777, 795–797. The one major exception to this practice was the commissioning of naval personnel as customs officers. See Hoon, English Customs description begins Elizabeth E. Hoon, The Organization of the English Customs System, 1696–1786, N.Y., 1938. description ends 272. In a case in the Massachusetts Vice Admiralty Court in 1763, with Auchmuty as Advocate General, counsel for the claimants of a vessel seized by an officer of the navy had argued that the statute’s conjunction of Treasury and Commissioners required a warrant. Nevertheless, the vessel was condemned. Bishop v. The Freemason, Quincy, Reports description begins Josiah Quincy Jr., Reports of Cases Argued and Adjudged in the Superior Court of Judicature of the Province of Massachusetts Bay, between 1761 and 1772, ed. Samuel M. Quincy, Boston, 1865. description ends 387 (Mass. Vice Adm., 1763). On appeal in the High Court of Admiralty, it seems to have been argued that there was a standing order from the Treasury authorizing such commissions. The condemnation was affirmed without comment on this point. The Freemason v. Bishop, Burrell description begins William Burrell, Reports, Court of Admiralty and upon Appeal, 1758–1774, London, 1885. description ends 55, 167 Eng. Rep. description begins The English Reports; 176 vols. A collection and translation into English of all the early English reporters. description ends 469 (High Ct. Adm., 1767). See No. 51, note 1; No. 52, note 5.
7. This was the English interpretation. Hoon, English Customs description begins Elizabeth E. Hoon, The Organization of the English Customs System, 1696–1786, N.Y., 1938. description ends 195. Apparently, however, the need for securing seizures sometimes caused the rule to be overlooked in practice. Id. at 198, 271–272.
9. No. 45, Doc. III. In Nov. 1772 Butler was allowed to join in the successful prosecution of a vessel which he had seized under the direction of the Collector. Commissioners to Salem Customs Officers, 30 Nov., 14 Dec. 1772, Salem Letter Book Inwards, 1772–1775. The authority to seize in this case was undoubtedly the Collector’s.