To Otho H. Williams1
Treasury department, 19 July 1792
It was with real reluctance and regret that I found myself, as I conceived, in a situation, not only to be justified but constrained to use a stile of expostulation in my letter of the 28th. of last month.2 It is my earnest wish that the public business committed to my superintendance may proceed with harmony and cordiallity between myself & those united with me in the execution of it. And I may truely add that my impression of you have always been of a nature to give force to that sentiment in a case, in which you were concerned. But I thought and still think, that the affair, which is the subject of this correspondence warranted dissatisfaction on my part. And as far as there may have been an expression of it, I do not fear that it can be a matter of surprize, to any one whose sensibility is not too much alarmed to leave the judgment impartial.
Let the circumstances be reviewed.
The Legislature pass an Act introducting a new branch of the Revenue, involving among other things the appointment of a new sett of Officers.3 They are aware that the new provision will have to encounter objections and obstacles; and that among other topics of objection the multiplication of Officers and the expence of Collection are likely to be urged. Towards obviating both, they indicate their sense, that it may be expedient to call in the aid of the Officers of the customs, in the execution of the law.
The expence of executing this new system being untried is unknown. Difficulties are found to attend a previous legislative speculation of the proper compensations and allowances. It is therefore made the duty of the executive to regulate that detail, under a limitation as to the totality of the expence to be incured.4
The executive, in concerting the necessary arrangements for carrying the law into effect, finds itself urged to avail itself of the aid contemplated by the legislature, not only by the same considerations which influenced them, and by respect for the intimation in the law on that head, but by a conviction, upon examination, that the restriction as to expence rendered such an expedient indispensable, from the impossibility of compensating a sufficient number of distinct officers.
The President therefore, in his general arrangement concludes to appoint—the Collectors of the Customs, at ports where there are no Surveyors, and the Surveyors at Ports where those Officers are established—Inspectors of the Revenue for the respective ports; charging them with the performance of services which though originating under the new system are immediately connected with the revenue of the Customs, which were before entrusted to their care and management.
The Secretary of the Treasury, in the details, connected with and resulting from the general plan, designates another description of Officers of the Customs, namely the Inspectors, as assistance to those who had previously been appointed by the President.
And relying on the efficacy of this resource, no other is pointed out, by which the Inspectors of the Revenue for ports can procure the requisite assistance for fulfilling the law. The instructions5 respecting the whole matter are transmitted to all the Collectors of the Customs, and their co-operation is desired.
I mentioned in my former letter,6 as a motive to this arrangement, that there was no danger of an interferance of duties. In this you differ from me. Let facts decide.
The duties of a Surveyor of the Customs by the 6th. Section of the Collection law7 are “to superintend and direct the Inspectors, measurers, and guagers within his district, to visit and inspect the ships and vessels which arrive within his district, with power to put on board one or more inspectors, to ascertain the proof of distilled Spirits, to examine whether goods imported in any ship or vessel and the deliveries thereof are conformable to the entries of such goods and the permits for landing the same” and he is placed under the Controul of the Collector.
The duties of the Inspector of the Revenue for a port under the Act in question8 and the inspections concerning it are—1st to receive the reports of Masters of vessels having on board distilled spirits brought from foreign ports, 2d. to receive from owners, importers and consignees, entries of such Spirits after they have been previously certified by the Collector of the Customs and to inspect record and indorse the permits granted by them. 3rdly to superintend the landing of Spirits, cause the Casks and vessels containing them to be marked and to Issue the requisite certificates to accompany them 4—to certify the quantities and particulars of distilled Spirits entered and landed at one port in cases in which a part of those imported in a vessel are intended to be delivered at another port. 5th—to superintend the shipment of distilled spirits intended to be exported in order to their being entitled to the benefit of drawbacks.
On comparing the particulars of the duties of these two offices it will be seen, that they are either substantially the same or closely allied to each other, and that they would be more naturally performed by the same than by different persons.
If the law had in the first instance annexed the duties of an Inspector of the Revenue for a Port to those of the Surveyor of a Port (which perhaps would have been a desirable course) no doubt could have been entertained of their perfect congruity. Their being united by an executive arrangement cannot, in this respect, vary the effect.
Responsibility to different superiors,9 is the only circumstance which can give colour to suppose the possibility of collusion. But the duties in the two Cases are so much parts of a whole that it would be no easy matter to make them clash, even by design; and if so improper a design could appear, there are not wanting means of repressing it.
The union therefore of the Offices of Surveyor and Inspector of the revenue, for a part, clearly does not naturally involve any interference of duties.
It remains to see if that of Inspector of the Customs and deputy inspector of the Revenue for a port is chargeable with any greater degree of incompatibility.10
As Inspector of the Customs, the person who bears that Office, is by the Collection law put under the immediate direction of the Surveyor. As deputy Inspector of the Revenue he is under the immediate direction of the same person in the capacity of Inspector of the Revenue. Here the responsibility to the same superior, in both capacities is found to second the analogy of duties.
As Inspector of the Customs his duties are not specifically defined by law—he is to be employed generally in aid of the Customs, and by the day, upon a compensation not exceeding a dollar and a quarter day. But from certain intimations in the law, and from practice, the prominent features of his duty consists in aiding the Surveyor in the inspection of vessels and in overseeing the landing of goods. I say in aiding the Surveyor, because it is expressly declared, that the Surveyor shall superintend and direct him and shall have power to put on board of each Vessel one or more Inspectors.
As deputy Inspector of the Revenue, under the arrangement which has been adopted, he is to assist the same Surveyor in the capacity of Inspector of the Revenue, in overseeing the landing of certain goods, with the additional circumstance of marking the Casks and packages containing them, when landed, and of delivering descriptive certificates to accompany them.
This additional circumstance may be regarded as a natural appendage of the principal service to be performed, and in most cases may be executed without difficulty by the same person.
If on particular occasion, through any extraordinary press of business, some embarrassment might be experienced, the remedy as I mentioned in my former letter would be a special and temporary appointment of additional Inspectors, an expedient in the discretion and power of the Collector, and the use of which in certain cases is contemplated by the collection law itself, which expressly authorizes the Surveyor to put on board a vessel, one or more inspectors.
To this you made two objections. First, that men selected for their integrity and abilities might be diverted from the business of the Customs, by a department over which you had no controul, to execute that of the revenue, leaving you to supply their places by unworthy or ignorant persons picked up in a hurry. Secondly—That it might expose those whom you had selected to perform certain duties to less compensation, in performing others, than they would be entitled to for performing those to which they had been appointed, or perhaps to no compensation at all.
The answer to the first objection is plainly this. The officers in question in the capacity of deputy Inspectors of the Revenue have no services to perform, but such as are in substance, however they may be in form, exclusively relative to the Customs; They have no concern with any but imported articles, the duties upon which are paid to and received by the Collector of the Customs only; and the direct object of the services they are to perform is the security of that branch of the revenue. They have nothing to do with the in-land duties. They are therefore in fact, though not in Name, auxiliary officers of the Customs. The criterian, upon this occasion, must be that the services to be performed are relative to duties on imported articles, which duties are payable to officers of the Customs. And it has been shewn that the services to be performed in both cases are either the same or coincident. Nothing therefore like a neglect of the service of the Customs was involved in the arrangement, on the contrary it tended to second and promote that service.
It may be further answered that you would alway have a right to say to the Inspector of the Revenue, who as Surveyor is under your controul “The established Inspectors being at this time too much occupied otherwise to perform the additional services of marking &c, you are for the present to employ for these purposes occasional Inspectors, whom I will appoint to assist you.” It would become his duty in such case to Conform and the inconvenience to which you allude might be avoided.
To the second objection it may be answered—That the compensation from the course prescribed, would rest with yourself, within the limit of a dollar and a quarter per day since the persons employed would be to be compensated as Inspectors of the Customs.
What you remark by anticipation in opposition to this is I conceive easily obviated. If a particular form from the Treasury, from an imperfect view of the law in the first instance, confined the compensation of Inspectors to cases of attendance on board of vessels, the error was by your own shewing rectified on further consideration, and the sense of the law was admitted to be that compensation would follow any services rendered by the Inspectors in aid of the Customs.
But you observe that it was “impossible for you to conceive the propriety, even if it might be admitted at the Treasury, of charging the Customs with expences incidental to the Revenue.”
But when it is observed, as is truely the case, that these expences are incidental to the Customs and not to the Revenue as distinguished from them, in other words “the in-land duties” it cannot be very difficult to conceive the propriety of the charge, which likewise, it was to have been presumed from the arrangement adopted by the head of the department would have been admitted at the Treasury. And it surely would have been perfectly safe and intirely in order, to have left the responsibility for a wrong construction in such a case where the law has placed it, namely with the Treasury. I might perhaps have contented myself on this point of the interferance of duties with refering to your own words in your letter of the 3d. of May last to the Surveyor11—in which you admit that the duties of the two offices though distinct are “practicable by the same persons.”
From the question of interference, I return to the review of the cause of the transaction, which is the subject in discussion.
The arrangement adopted and notified from the Department of the Treasury, is carried into general execution, without objection or complaint, though in some instances representations are prefered of the considerable addition, which is made to the duties of the Officers of the Customs, and of the reasonableness of some further compensation; which are of necessity refered to future consideration, when greater latitude in the article of expence should be allowed by the Legislature; an event which took place last session of Congress,12 and the effects of which have been hereto-fore suspended, only by the requisite preliminary inquiries and investigations.
A question arises in your district, as to the obligation of the Inspectors of the Customs to perform the additional services required of them. Not a syllable of this is communicated to the Treasury. No opportunity is offered of reconsidering the arrangement—none of providing, by a new instruction to the Officers of the Revenue, a substitute for the expected co-operation of the Inspectors of the Customs in cases of refusal, if such refusal were justifiable.
On an application from those Officers to you—you write to the Surveyor enjoining him to avoid as much as possible demanding of the Inspectors of the Customs services which may interfere with their particular duties as such, and especially such as they are unwilling to undertake—declaring your opinion that they are not bound to officiate in the capacities of deputy Inspectors and that their services must be voluntary.
You state, that in fact you gave no answer at all to the representation of the Inspectors. The Surveyor however States, that the opinion given to him, in the above mentioned letter was also given to the Inspectors, and that in consequence of it, they refused to mark. It would be improper for me now to decide which of these two apparently contradictory statements is the most accurate—but with one only before it was natural I should suppose it correct, especially when I adverted to the Result.
The Surveyor further states, that your deputy “took pains to induce the Inspectors not to mark.”
From a disposition the reverse of unconciliating, I was disposed to suppress these unpleasant particulars. But the turn which your letter has given to the thing appears to me to render it necessary they should now be brought to view.
The issue of the whole affair is, as stated by the Surveyor—that the Inspectors refuse to mark—that he in consequence is compelled to have the Spirits, which are landed Stored, without it, ’till from courtesy and a disposition to oblige him, he is able to prevail upon two or three Inspectors to perform the services at their leisure—that the Merchants complain, and talk of protesting against the officers—that some of the Inspectors go so far as not only to refuse to mark, but to declare that they “will not examine to see if spirits when landed are accompanied with the proper certificates.”
I appeal to your own candour and good sense. Was all this as it ought to have been? Was not the public service embarrassed? Were not the wheels of administration so far clogged? Was no example of disorder given? Had I no causes to feel dissatisfied or pained at such a scene? Could I consistantly with what was due to my official situation, or the public service, forbear to expostulate?
I proceed to take notice of some particulars in your letter.
You express your surprize that what has occured shd. have been represented to me “as a controversy between the officers respecting the limits of duty.” In your letter of the 3d. of May to the Surveyor you state that it has been intimated to you that “a misunderstanding subsisted between the Surveyor and the Inspectors of the Customs for the port of Baltimore respecting the duty of the latter, when deputed by the Inspector of the Revenue to aid the execution of the duties of the latter office.” I regard this misunderstanding as a controversy between the officers concerned respecting the limits of duty—and this was all that was meant by the observation
You ask whether you could have apprehended that the business of the Customs was to have been retarded by that of the Revenue; or that if additional aid was necessary it was material to the Government by which department it was procured? and you add, that there were officers enough in one department and it never occured to you that it was your duty to create more, in order to supply the other, in which the power of creation is by law made adequate to its occasions.
The first of these questions have been already answered. The service to be performed was in every substanial sense, the business of the Customs, and there were means in your power to forward all the parts of it without suffering any part to be retarded by another. But could you imagine, if additional aid was necessary, it was material, by which department it was procured? The instructions, which had been given on the subject, were imparted to you, and the only agents, which these contemplated for the services in question, were the Inspectors of the Customs. No pecuniary provision was made to enable the Officers of Inspection to procure additional aid by exercising their power of creation. It was natural therefore to suppose, that if necessary it was to be procured through the same means from which the aid in ordinary cases was to be derived. Oeconomy recommended the main expedient; uniformity the auxiliry one.
I am satisfied, from your assertion, that the expedient did not occur to you; but if the difficulty, which appeared to you in the case, had been suggested to me, an explanation would have obviated the necessity of embarrasment. I wish this had been done.
If there were existing officers enough in the Revenue department, to answer the purposes, it is unknown to me.
You say that you feel not a little from my suggestion that the Inspectors’ not performing the duties required of them whether legally obligatory on them or not would be a good reason to substitute others.
I can see no cause to retract that opinion—nor am I unwilling to submit to the severest examination the idea, that there are causes in which a non compliance with official requisitions of superior authority, reasonable in themselves, forming a part of a general arrangement, dictated by particular circumstances, and productive of material convenience to the public service, though not strictly within the compass of the duties legally annexed to an office—would betray a disposition so unaccommodating and improper as to justify the substituting of persons better disposed.
I meet without hesitation the allusion you make to the case of the Surveyor. If he had refused to accept and execute the Office of Inspector of the Revenue, I have no doubt that the chief Magistrate would have been justifiable in seeking and substituting some other person, who would have been willing (in conformity to a general arrangement deemed by him eligible for the public service and even intimated as expedient by the Legislature) to act in the double capacity of Surveyor and Supervisor of the Revenue. Nor do I perceive how it can be doubted, as long as it is admitted that the public good ought to be the guide in the exercise of legal discretion; and that there is a discretion in the chief Magistrate to substitute a person willing to fulfil the legal and reasonable intentions of Government, to one who is not so disposed.
This doctrine too is such an one, as I do not feel myself degraded by supposing equally applicable to the Secretary of the Treasury with any other officer in the department; and I shall flatter myself, that I have competent ideas of my Official and personal dignity.
But while I adhere to the principle, I am sensible, that, like every other, it is capable of being abused, but the right or the ill use of it must in this, as in every other case, depend on the circumstances.
You remark on the respectability of the Charactors, who at present fill the offices of Inspectors. I had too much confidence in your care and judgment to doubt that so respectable a trust would be confided to respectable men. But I acknowledge that I can see nothing derogatory in the services, which are expected from them, as deputy Inspectors of the Revenue. If they have been made so, by the manner of executing them, it ought to be corrected, and I shall readily co-operate in any manner for that end, which upon a knowledge of facts shall appear to be requisite.
Upon the concluding passages of your letter, I shall make no other remark, than that you seem to have made there, as in one or two other instances, a more personal application, than was intended by me, of some observations merely general and argumentative.
In thus fully develloping the view I have taken of the subject I have been influenced by a wish at least to prevent a final difference of opinion between us. If this wish does not succeed, I shall regret it—but having acted upon mature reflection, according to the best light of my judgment and with no feelings whatever, of which I am conscious, to misguide it, it will be a matter of course, on my part to persevere in the expectations I have signified, as far as the complete execution of the arrangement which has been made, may require.
With consideration and esteem I remain, Sir Your obedient Servant
Copy, Maryland Historical Society, Baltimore.
1. Williams was collector of customs at Baltimore.
2. This is a mistake. H meant to refer to his letter of June 18, 1792, to which Williams had replied on June 28.
3. This is a reference to “An Act repealing, after the last day of June next, the duties hereto-fore laid upon Distilled Spirits imported from abroad, and laying others in their stead; and also upon Spirits distilled within the United States, and for appropriating the same” (1 Stat. description begins The Public Statutes at Large of the United States of America (Boston, 1845). description ends 199–214 [March 3, 1791]).
4. See H to Williams, June 18, 1792, note 6.
5. H is referring to instructions enclosed in “Treasury Department Circular to the Collectors of the Customs,” May 26, 1791.
7. “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 145–78 [August 4, 1790]).
8. These duties are given in several sections of the act of March 3, 1791.
9. When a surveyor also held the office of inspector of the revenue, he was, in his capacity as surveyor, responsible to the collector of the customs and, as inspector, to the supervisor of the revenue.
10. The act of March 3, 1791, imposing duties on distilled spirits and prescribing regulations for their collection, authorized the President to designate officers of the customs as inspectors of the revenue. Inspectors of the customs in Baltimore had accordingly been made deputy inspectors of the revenue. Williams had objected to this arrangement in his letter to H of June 28, 1792.
12. This is a reference to Section 16 of “An Act concerning the Duties on Spirits distilled within the United States” (1 Stat. description begins The Public Statutes at Large of the United States of America (Boston, 1845). description ends 267–71 [May 8, 1792]). For this section, see Ballard to H, May 31, 1792.