To James Duane1
Treasury Department April 5 1793
I return herewith the statement sent me in the case of Lemuel Toby and the Ship Lydia,2 in order that a further enquiry & statement may be had.
I am not at present satisfied of the innocence of the transaction, as it respects all the parties, who may be concerned, and as it is a shape in which fraud may present itself with great success, I am solicitous for a pretty strict scrutiny.
A Hogshead such as those we use with us is an Article so very distinguishable from a pipe, so different in the handling & stowage, that it is scarcely supposeable that the Captain could have been ignorant that the h’hds in question were on board & that they were not pipes.
It is still less supposeable that the Shippers of them could have considered them as pipes which it is presumable, (from their having been called so in the manifest) was the denomination given them.
The following particulars for different reasons appear to me desirable to be known
1 The Owner or Owners of the Ship
2 The Owner, Shipper & Consignees of the Geneva in question.
3 The denomination in the bills of lading & invoices of the Vessells containing it whether h’hds or pipes
4 The position of the H’hds in the Ship in relation to the use of the Cargo, as whether low down—midway—or at the top
5th The behaviour of the Ship upon her arrival on the Coast or within the Hook, whether she loitered or came immediately up—whether at the time of her arrival the Cutter was on the Coast or near the hook & had communication with her or not.
If the Ship was within reach, I should request an inspection of the Account of her Cargo while taking in, and of her log book, to ascertain the denomination there given to the H’hds.
I observe, it is stated, there were no certificates with the H’hds. If this has only been inferred negatively, a revision of the fact, with a more critical eye may be found useful.
It will readily occur that if they had been in possesion of the master, or any other person they may have been suppressed—and if any fraud was intended, the Oath of a party liable to suspicion would not be conclusive respecting such a point.
It would be reasonable in such a case to ask of the Consignee a production of his Correspondence.
It is with reluctance, I at any time give the trouble of a revision or restatement, but the present Case is in my opinion of a nature to require particular vigilance & circumspection. I doubt not the aditional attention requisite will be chearfully bestowed.
With respectful Consideration I have the honor to be Sir Yr Obdt Servt
James Duane Esq
Copy, New-York Historical Society, New York City.
2. This case was referred to H under the terms of Section 1 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]), which reads in part as follows: “Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That whenever any person who now is, or hereafter shall be liable to a fine, penalty or forfeiture, or interested in any vessel, goods, wares or merchandise, or other thing which may be subject to seizure and forfeiture, by force of the laws of the United States now existing, or which may hereafter exist, for collecting duties of impost and tonnage, and for regulating the coasting trade, shall prefer his petition to the judge of the district in which such fine, penalty or forfeiture may have accrued, truly and particularly setting forth the circumstances of his case, and shall pray that the same may be mitigated or remitted; the said judge shall inquire in a summary manner into the circumstances of the case, first causing reasonable notice to be given to the person or persons claiming such fine, penalty or forfeiture, and to the attorney of the United States for such district, that each may have an opportunity of showing cause against the mitigation or remission thereof; and shall cause the facts which shall appear upon such inquiry, to be stated and annexed to the petition, and direct their transmission to the Secretary of the Treasury of the United States, who shall thereupon have power to mitigate or remit such fine, penalty or forfeiture, or any part thereof, if in his opinion the same was incurred without wilful negligence or any intention of fraud.…”
This act was extended by “An Act to continue in force the act intituled ‘An act to provide for mitigating or remitting the Penalties and Forfeitures accruing under the Revenue Laws in certain Cases,’ and to make further Provision for the payment of Pensions to Invalids” (1 Stat. description begins The Public Statutes at Large of the United States of America (Boston, 1845). description ends 275 [May 8, 1792]).
On May 23, 1793, H issued a warrant of remission in this case. In the warrant Toby’s first name is given as Samuel. The warrant reads in part as follows: “And whereas I, the said Secretary of the Treasury, have maturely considered the said statement of facts and petition and although it doth appear to me most probable that there was no intention of fraud nor wilful negligence in the said Samuel Toby, yet the case is not wholly free from circumstances of suspicion, and the practice is in itself dangerous. Now therefore know ye that I, the said Secretary of the Treasury, in consideration of the premisses, and by virtue of the power and authority to me given … have decided to remit and by these presents do remit to the said Samuel Toby all the right, claim and demand of the United States and of all others whomsoever to the said forfeiture; he, the said Samuel Toby, first paying one half of the appraised value of the nine Casks of gin forfeited, for the benefit of such parties other than the United States, who may be interested in the said forfeiture, together with all reasonable costs and charges attending the proceedings …” (DS, RG 21, Records of the United States District Court for the Southern District of New York, Warrants of Remission, National Archives).