To David Sewall
November 13th. 1790
I have received through the Clerk of the District Court, your statement of facts on the petition of George Tyler.1 Some doubts which arose in my mind on the subject, added to my being on the point of removal from New York to Philadelphia delayed a determination. The day before yesterday a letter from the Collector of Penobscot of the 20th. of September2 (an extract from which together with copies of the declarations referred to in it are inclosed) came to hand; which has greatly increased the doubts I, at first entertained about the propriety of a remission or mitigation of the penalties to which the party is subject.3
As I am however unwilling to precipitate the execution of a sentence of so serious a nature as that which hangs over the Petitioner, I have concluded to remit the statement to you, in order that it may be ascertained, whether the objections which as matters now stand operate against a remission or mitigation, can be satisfactorily removed.
The following observations naturally arise out of the documents before me—
The petition speaks of Finley Malcom of Robinstown, in the County of Washington: but the Collector represents him as being of St. Andrews. And the statement of the Judge is silent as to his place of residence.4
The petition represents the Collector as having remitted his share of the penalty, from a conviction that it was incurred without wilful negligence or intention of fraud. The statement of the Judge does not express the reason, but mentions the fact and connects it with circumstances which lead to an inference that the motive assigned for it by the Petitioner was the true one. But the Collector affirms his full conviction of a fraudulent intention, and alleges, as his reason for remitting his share of the penalty, a desire of manifesting that he had acted in the prosecution from a sense of duty not from a view to gain.
The statement of the Judge represents, that the case, at the trial, was generally considered as a hard one with respect to Tyler. But the Collector declares, that he has heared no person speak upon the subject who was not of opinion, that the Petitioner had not the least claim to a mitigation and adds his persuasion, that a mitigation would have a very bad effect upon the minds of people where all the circumstances are known, and that should he get clear of the penalty, none that shall hereafter transgress will doubt of obtaining the benefit of a mitigation. And it appears from the statement of the Judge, that the Jury had no hesitation, having found a verdict against the defendant without leaving the bar, or as it is expressed on the stand which is presumed to be the same thing.
The statement of the Judge mentions, that the articles in question were put on board on the American side of the river Shoduck5 affording, with the suggestion of the petitioner as to Malcom’s residence, room for an implication, that they were brought from a County of the State of Massachusetts: But the Collector represents, that they were brought from St. Andrews, which is on the opposite side of the Shoduck, and in the occupancy of subjects of Great Britain. And the declarations of the Master of the Vessel and of one of her passengers transmitted by him as containing the substance of what was sworn at the Trial, confirm the same fact.
The statement of the Judge speaks of the presence of the Attorney of the District, without saying anything about the presence or the notification of any person claiming an interest in the penalty or forfeiture. But the law expressly requires, that the latter as well as the former shall be notified.6 The Collector, who appears to be that person, states as his only source of knowlege of there having been an application to the Judge, casual information received by him from Gentlemen who attended the District Court.
These things appear to require some further explanation. While a disposition unduly rigorous ought not to be indulged in those to whom the execution of the laws is committed, their duty requires, that they should be vigilantly on their guard against all artifices and contrivances to elude them.
I have the honor to be With due respect, Sir, Your most obedt. Servt.
Secretary of the Treasury
David Sewall Esquire
Judge of the District Court of the United States for the District of Maine
LS, Columbia University Libraries.
1. Presumably this case was referred to H under the terms of “An Act to provide for mitigating or remitting the forfeitures and penalties accruing under the revenue laws, in certain cases therein mentioned” (1 Stat. description begins The Public Statutes at Large of the United States of America (Boston, 1845). description ends 122–23 [May 26, 1790]).
2. Letter not found. John Lee was the collector of the customs at Penobscot.
3. Although H does not refer specifically to the section of the Collection Law which Tyler has violated, the facts stated by H point to violation of Section 66. Apparently, Tyler imported British goods via Robbinstown, District of Maine, which he claimed falsely were American manufactures. Section 66 provides that any person who takes a false oath under this law “shall … be punished by fine or imprisonment, or both, in the discretion of the court before whom the conviction shall be had, so as the fine shall not exceed one thousand dollars, and the term of imprisonment shall not exceed twelve months.” See “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 175–76 [August 4, 1790]).
4. This was the region of the disputed international frontier between the United States and Canada. (See “Conversation with George Beckwith,” October 15, 1790, note 6.) Robbinstown was at the mouth of the Schoodic River which empties into Passamaquoddy Bay. On the east shore of the Schoodic was St. Andrews, New Brunswick. For revenue purposes Robbinstown was part of the district of Passamaquoddy whose collector of customs resided on Frederick Isle in Passamaquoddy Bay about seventeen miles south of the town.
5. The Schoodic River.