Treasury Department Circular
to the Collectors of the Customs
July 20, 1792.
It is with great satisfaction I have it in my power to acknowledge the zeal and good disposition, with which the Officers of the Customs generally have executed the instructions which have, from time to time, proceeded from the Treasury Department. I am happy to be able to say, that the instances of exception are few, and I ascribe such as have happened rather to an inaccurate view of the subject than to improper intention.
But as a few instances exist of deliberate deviations from instructions, and as explanations, in one or two cases, disclose opinions which in practice would be subversive of uniformity in the execution of the laws, it becomes advisable to state the ideas, which are entertained at the Treasury respecting the nature of the power of the head of the department “to superintend the Collection of the Revenue,” and the obligation incident to it on the part of the Officers immediately charged with that Collection.
This will be done, to obviate, as far as possible, misconceptions, which may not only disturb the course of public business, but may lead to disagreeable discussions, and even, perhaps, to painful altercations.
It is my earnest wish to cultivate harmonious and cordial cooperation; and it is essential to this, that correct opinions should be mutually entertained. If those I shall express are liable to objections, I shall be glad they may be freely made, and I promise maturely and candidly to consider the force of them.
The Act constituting the Treasury Department,1 expressly makes it the duty of the head of the Department “to superintend the Collection of the Revenue.”
The power of superintending the Collection of the Revenue, as incident to the duty of doing it, comprises, in my opinion, among a variety of particulars, not necessary to be specified, the right of settling, for the Government of the Officers employed in the Collection of the several branches of the Revenue, the construction of the laws relating to the Revenue, in all cases of doubt.
This right is fairly implied in the force of the terms, “to superintend,” and is essential to uniformity and system in the execution of the laws.
It is evident that without it the most incongruous practices upon the same laws might obtain in different districts of the United States—according to the different portions of intelligence and attention of different Officers, and according to the different mediums through which objects are often seen, even with equal degrees of intelligence and attention.
Merchants might have to pay higher duties at one port, than at another, upon the same articles; higher fees at one port than at another for the same services; and might otherwise be subjected to very dissimilar burthens and requisitions. Such a state of things would undoubtedly be a state of disorder; inconsistent with every idea of a well regulated government, and would have a natural tendency to produce discontent and disgust among individuals, and to bring upon the laws contempt and odium.
It is true that a remedy, in a large proportion of the cases, might be obtained from the Courts of Justice; but the vexatious course of tedious law suits to decide whether the practice of one Officer, or of another, was the most legal, would be a mode of redress very unsatisfactory to suffering parties—and very ill suited, as an ordinary expedient, to the exigencies and convenience of Trade.
A reference has been made to the Oath of Office, prescribed by the first Collection law2 for the Officers of the Customs.
They are by that law severally required to swear or affirm, that they will execute and perform all the duties of their respective Offices according to law; whence it seems to have been inferred, that they are bound each to pursue his own opinion of the meaning of the law.
But it is conceived that an Officer of the Customs executes his duty, according to law, when, in the cases mentioned, he conforms his conduct to the construction, which is given to the law, by that Officer, who, by law, is constituted the general Superintendant of the Collection of the Revenue. The power to superintend must imply a right to judge and direct, of course an obligation to observe the directions which are given, on the part of those, to whom they are addressed. The observance of them therefore cannot be contrary to the engagement of an Officer to execute the duties of his Office according to law; because, as a general principle, it is a part of his duty, enjoined by the law, to pursue those directions; and because of course the responsibility for a wrong construction rests with the head of the department, when it proceeds from him.
It is not possible to conceive how an Officer can superintend the execution of a law, for the collection of a tax or duty, or for any other purpose, unless he is competent to the interpretation of the law, or in other words, has a right to judge of its meaning. If then that competency and right are attached to the head of the Treasury Department, as general Superintendant of the Collection of the Revenue, it must follow that his judgments are directory to those, who are merely Superintendants within particular spheres, as the Collectors of the Customs, within their respective districts. For it is an universal principle of jurisprudence, and a clear dictate of reason, that authorities within particular spheres, are subordinate to a general authority relating to the same subject, and pervading the whole of them.
I am aware of the reasonable limitations to which the general principle is subject; as restrictions, in the nature of things, upon abuses of authority, applying as well to the operation of laws as of instructions relating to their execution. But the admission of exceptions in extraordinary cases, does not militate against the general rule.
With regard to the oath,* which is prescribed to the Officers of the Customs, it is to be observed that it is equally prescribed to all of them, from the Collector down to the Inspector of the Customs. It is easy to discern the confusion which would result from the principle, that each of these Officers is bound, by his Oath, to pursue his own construction of the law, though contrary to that of his official Superior.
Two instances shall be mentioned, for the sake of illustration, in which the binding force of instructions from this department has been either questioned, or, in practice, denied.
One relates to the duty on Spikes. The Acts of the first and second session, which impose duties on imported articles,4 lay a duty of one cent per pound on “nails and spikes,” expressly naming each, and thereby implying that the one was not included in the other. In the Act of the last Session, “for raising a further sum of money for the protection of the frontiers, and for other purposes therein mentioned,”5 Nails are rated at two cents per pound, and nothing is said about Spikes.
The construction upon this at the Treasury, and which has been signified by the Comptroller,6 is, that the duty on spikes remains as before, and that the duty on nails only is varied; the reasons of which construction are, that the Legislature named spikes, in one instance, and did not name them in the other, and though there is a duty of ten per centum ad valorem on manufactures of iron generally; yet it is with the exception of those otherwise particularly enumerated; which expressions not being confined to the Act, in which they are used, by the usual word herein, or any word of similar import, naturally extend to enumerations in any prior Act, as well as to those in that in which they are used. Consequently spikes being among the enumerated articles, in the previously existing law, were considered as excepted, and as continuing under the same duty as before. The last Act does not alter the duties generally, but merely on such articles as are therein enumerated and described.
A doubt has nevertheless been communicated, not only as to the justness of this construction, but whether an Officer who doubts is, in such a case, at liberty, from the tenor of his Oath, to comply with it.
The other case alluded to, relates to the question of fees under the Coasting Act.7 The instructions which were given on this head,8 though punctually observed in most of the districts, have been materially departed from in some of them.
The first being a case, relating merely to the quantum of revenue, is certainly one in which the opinion of the Officer at the head of the finances of the United States ought to be conclusive.
The second being a question between the pecuniary rights of the Officers, and the pecuniary obligations of the Citizens, in a point in which their contentment or dissatisfaction with the laws, and the interest and convenience of a most precious branch of Commerce, the Coasting Trade, were materially concerned—it is conceived that the opinion of the Officer who, by law, is charged with the general superintendance of the Collection of the Revenue, ought to have prevailed.
These examples are mentioned to shew to those Officers, whose practice has been undeviatingly conformable to the general principle which has been inculcated—that the assertion of it has been called for by instances of departure from it: And the foregoing observations are addressed circularly, rather than to the individual Officers, whose practice in those instances has rendered them necessary, for three reasons—1. That as misconceptions have taken place in some instances, it is possible that similar misconceptions may happen in others, and it is wished to anticipate and prevent them, from an ardent desire to avoid sources of misunderstanding as well as occasions of interruption to the due course of the public business—2. From the possibility that deviations may have happened in more instances than are known at the Treasury—and 3. From a wish to pursue the most delicate mode of animadversion. But while I am desirous, on public principles, of establishing what I suppose to be correct views of the just and necessary authority of this Department, I trust that nothing I have said will tend to discourage freedom of observation on any instruction which may issue from it. I shall constantly think myself indebted to any Officer who shall give me an opportunity of revising an opinion, with the aid of his remarks, which may appear to him not consonant with law, with his own rights, or with the good of the service. To every communication of this sort I have always paid, and shall always pay careful attention. And as often as I can be convinced of an error, I shall, with chearfulness, acknowledge and retract it.
With great consideration, I am, Sir, your obedient Servant,
LS, Rhode Island Historical Society, Providence; LS, RG 36, Collector of Customs at Boston, Letters from the Treasury, 1789–1807, Vol. 4, National Archives; LS, MS Division, New York Public Library; LS, Office of the Secretary, United States Treasury Department; LC, Essex Institute, Salem, Massachusetts; copy, United States Finance Miscellany, Treasury Circulars, Library of Congress; copy, Circulars of the Office of the Secretary, “Set T,” National Archives.
1. H is referring to Section 2 of “An Act to establish the Treasury Department” (1 Stat. description begins The Public Statutes at Large of the United States of America (Boston, 1845). description ends 65–66 [September 2, 1789]).
2. This is a reference to “An Act to regulate the Collection of the Duties imposed by law on the tonnage of ships or vessels, and on goods, wares and merchandises imported into the United States” (1 Stat. description begins The Public Statutes at Large of the United States of America (Boston, 1845). description ends 29–49 [July 31, 1789]). The oath is prescribed in Section 8.
3. This is a reference to “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]).
4. “An Act for laying a Duty on Goods, Wares, and Merchandises imported into the United States” (1 Stat. description begins The Public Statutes at Large of the United States of America (Boston, 1845). description ends 24–27 [July 4, 1789]) and “An Act making further provision for the payment of the debts of the United States” (1 Stat. description begins The Public Statutes at Large of the United States of America (Boston, 1845). description ends 180–82 [August 10, 1790]).
6. Oliver Wolcott, Jr.
7. “An Act for Registering and Clearing Vessels, Regulating the Coasting Trade, and for other purposes” (1 Stat. description begins The Public Statutes at Large of the United States of America (Boston, 1845). description ends 55–65 [September 1, 1789]). For a discussion of this question, see “Treasury Department Circular to the Collectors of the Customs,” July 22, 1792.