George Washington Papers

To George Washington from Shubael Swain, 3 September 1790

From Shubael Swain

Debtors apartment
Philada Septr 3. 1790

May it please your Excellency!

Impress’d with a sense of Gratitude and respect due your Eminent and Conspicuous Situation I pray leave with all deferance to approach you as an humble Supplicant.

Altho’ it might be an Improper Intrusion on the Important time that must Necessarily engage the Attention of the Father of this Riseing and Great Empire; Yet Emboldened by that generous and Unreserved Conduct which have ever been your distinguished Characterestic, Induce me to Implore your Attention and relate some Circumstances Which can by you be removed for my relief.

In the Month of November last I was intrusted with the Command of a Sloop1 from Nantucket to this port with a Cargo very Unproductive of Sources to either the Revenue or the Merchant as the Whole Amount did exceed [ ] pounds, I therefore Submit it to your Excellency to Judge Whether any appearance of fraud Could arise in my Conduct as I was no ways Interested in either Vessel or Cargo only by a Gratuity of Sixteen Dollars per Month, The owner of both Vessel and Cargo Was on board during the passage and the Cargo was Laid in previous to my taking the Charge, I could therefore only report my Arrival Which I did as in Conscience I could not Swear to the Manifest bei⟨ng a⟩ Just one2—that together with the Vessel being under Measurement Originated the proceedings Which afterwards followed that of Confineing our persons Until Trial Which we both had at a District Court3 and was thereby Sentenced to pay a fine of Fourhundred Dollars, Which my distressed Circumstances will not admit of having been in Confinement these Nine Month⟨s⟩ Without any relief for myself or family as their Subsistence depends on my Labour, I made application some time ago by petition to Congress praying a remission of fine Which petition was recommended by the Court and Jury and Several other respectable Citizens but did not Succeed in obtaining my Wish owing as I suspect to my petition not being presented4—I hope you will be pleased to Consider my Youth and Inexperience and grant me some relief as I am a Natural born Subject of the United States and your Signifying your Wish to Judge Hopkinson for my Liberation for Which Act of your humanity, Shall ever have the prayers of self and family.5

Shubael Swain

ALS, DNA: RG 59, Miscellaneous Letters, with endorsement in Thomas Nelson, Jr.’s hand, “from Shubael Swain Philada Septr 3rd 1790 referred to the Attorney-General.”

Shubael Swain (b. 1764) was the son of Reuben and Hannah Macy Swain, who lived on Nantucket until 1796. His ancestors had settled on the island in the seventeenth century (Alexander Starbuck, The History of Nantucket, County, Island, and Town, Including Genealogies of First Settlers [Rutland, Vt., 1969], 813, 819).

1Swain’s sloop has not been identified.

2Section 11 of “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” required a vessel’s commander to deliver his ship’s manifest to customs collectors upon arrival at port and subscribe “an oath or affirmation, before the collector or other proper officer . . . in the words following, to wit: ‘I, —— ——, do solemnly swear or affirm (as the case may be) that this is, to the best of my knowledge and belief, a just and true manifest of all the goods, wares and merchandise, on board the ——, at the port from which she last sailed, at the time of her sailing, or at any time since, and of which vessel I am at present master.’ And if the master or other person having charge or command of any such ship or vessel, shall refuse or neglect to make entry, or deliver his manifests and documents, pursuant to the directions of this act, or to take the oath or affirmation herein prescribed, he shall forfeit and pay five hundred dollars for each refusal or neglect” (1 Stat., description begins Richard Peters, ed. The Public Statutes at Large of the United States of America, from the Organization of the Government in 1789, to March 3, 1845 . . .. 8 vols. Boston, 1845-67. description ends 29, 38–39 [31 July 1789]).

3The case that Sharp Delany, collector for the port of Philadelphia, brought against Shubael Swain under sections 11 and 36 of the 31 July 1790 act was heard by Judge Francis Hopkinson in the Eastern District Court of Pennsylvania in April 1790. The following month Delany probably referred to it when he sent an account of the costs of an unidentified case to the secretary of the treasury on 5 May 1790, “for the purpose of shewing You the necessity of making some allterations in the mode of process. You will at once perceive there can be no inducement to any of the inferior officers of the Revenue to give information—as in the End unless the seizure should be very valuable no emoluments will come to their share. This seizure was made by me, and after all the trouble of prosecution &c I shall receive about Eight Dollars and should any seizure be made, without sufficient proof for condemnation, cost trouble & blame will be the seizing officers portion” (Syrett, Hamilton Papers, description begins Harold C. Syrett et al., eds. The Papers of Alexander Hamilton. 27 vols. New York, 1961–87. description ends 6:403–4; see also DHFC, description begins Linda Grant De Pauw et al., eds. Documentary History of the First Federal Congress of the United States of America, March 4, 1789-March 3, 1791. 20 vols. to date. Baltimore, 1972–. description ends 1:649).

4There is no evidence that Swain’s first petition was ever presented to Congress.

5While in Philadelphia, GW asked Clement Biddle, U.S. marshal of Pennsylvania, to bring Swain’s case to the attention of the attorney general. After his arrival home the president wrote to Edmund Randolph from Mount Vernon on 22 Sept. 1790: “I have received your letters of the 9th and 10th instant. Colonel Biddle misunderstood my intention in referring the letter, addressed to me by Shubael Swain, to your consideration—as it was merely to ascertain, on an enquiry into his case, whether there was any thing so favorable as to justify an interference in his behalf by the Secretary of the Treasury, to whom such favorable circumstance might be made known” (copy, DNA: RG 59, Miscellaneous Letters).

Although Randolph’s 9 and 10 Sept. 1790 letters to GW have not been found, the attorney general probably decided that Swain had no legal recourse in the courts and recommended that relief could only be effected through the executive or an act of Congress, and Hamilton declined jurisdiction over Swain’s fate. On 30 Nov. 1790 Swain again wrote GW from the Philadelphia jail, again requesting the president’s intervention and noting in an enclosed petition that “as he has had his Trial His Case does not Come before the Secretary of Treasuary To Grant Releif—that your petitioner has now Suffered Near twelve Months Close Imprisonment for the Said offence That he was not a Principal Director in the business—and that he has a wife in Nantucket who Depends on him for Support—& that his Freinds who have heartofore Supported him in Goal are unable Longer to Afford him releif—& he therefore must Perish in the approaching Inclement Season—and as the Honorable Judge of the District Court for the State of Pennsylvania has been pleased to recommend Him for Mercy—& he is informed it Can only be Obtained from your Excellency—he therefore Humbly Prays your Excellency would Take his Case into Consideration and To Remit his fine” (DNA: RG 59, Miscellaneous Letters).

In forwarding Swain’s petition and cover letter of 30 Nov. 1790, Biddle wrote to the president on 3 Dec. 1790: “The inclosed Petition was put into my hands by Shubal Swain who is a prisoner in my Custody and whose application to you in September last, I delivered by your orders to the Attorney General of the United States.

“Swain made application to Judge Hopkinson who recommended him to the Secretary of the Treasury, who I am informed considers his Case as not within his power to decide upon—The facts set forth in the petition are nearly conformable to what appeared in the Trial, or have since come to my knowledge and from the long Imprisonment which Swain has suffered I presume to forward the petition to you and to add that his behaviour in prison induces me to recommend him for mercy” (DNA: RG 59, Miscellaneous Letters).

Three weeks later, on 29 Dec. 1790, Swain finally had a petition presented to the U.S. House of Representatives. Dated 20 Dec. 1790, it was almost identical to his 30 Nov. 1790 petition to GW, except that Judge Hopkinson added the following postscript, signed and dated 28 Dec. 1790: “As there seems to have been no Provision made for pardoning Offences against the Laws of Trade, other than the Mercy of the Legislature, and as the Case of Sheubel Swain appears to be a hard one, I beg leave to recommend his Petition to their favourable Notice” (DNA: RG 46, First Congress, 1789–91, Records of Legislative Proceedings, Petitions and Memorials, Resolutions of State Legislatures, and Related Documents).

The House read Swain’s petition praying for the remission of his fine the same day it was presented and referred it to a committee composed of congressmen Benjamin Goodhue, Samuel Livermore, and Thomas Sinnickson “with instruction to prepare and bring in a bill or bills, pursuant to the prayer thereof.” The House received and read Goodhue’s 31 Dec. 1790 relief bill the same day it was presented and sent it to the Senate on 4 Jan. 1791. On 4 Jan. the Senate received Swain’s petition and read the accompanying House bill and on 6 Jan. rejected it. Swain remained in the Philadelphia jail at least until 25 Feb. 1791, when he again petitioned Congress, which tabled his petition (DHFC, description begins Linda Grant De Pauw et al., eds. Documentary History of the First Federal Congress of the United States of America, March 4, 1789-March 3, 1791. 20 vols. to date. Baltimore, 1972–. description ends 1:523, 525, 526, 649, 3:646, 651, 652).

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