Treasury Department September the [ ] 1796
The Secretary of the Treasury most respectfully reports to the President of the United States.
That on the 8th of June he received a letter from William Jackson Surveyor of the Port of Philadelphia containing a representation against the Official Conduct of Sharp Delany Collector for the District of Pennsylvania, for having taken Robert Hopkins one of the Inspectors from his duty, on an excursion into the Country. The Collector being absent and the Secretary fully engaged in pressing business, nothing more was done at that time, than to submit the Surveyors letter to the President who, immediately directed that a strict inquiry into the truth of the allegation should be made by the Secretary. On or about the 3d day of July the Collector returned to Philadelphia, and on the 7th day of the same month, the Secretary commenced the enquiry in the following manner.
A letter was written to the Comptroller of the Treasury transmitting a Copy of the Surveyor’s letter of June 8th with certain documents which had been suggested as being material in the proposed investigation, and requesting him to appoint a time and place convenient to himself and the parties, for the purpose of observing that allegations, testimony and explinations which might be offered, were carefully and impartially reduced to writing.
On the same day a Letter was written to the Collector transmitting a Copy of the charge and informing him that the Comptroller would superintend the enquiry, similar in formation was at the same time communicated to the Surveyor.
On the 13th of July the enquiry commenced at the Custom House under the Superintendence of the Comptroller, when the following specific charges were adduced by the Surveyor.
“1st That the said Collector on the 4th day of June last when the business of the Port of Philadelphia was so pressing, as to require the best exertions of every Inspector belonging to the said Port to perform it, did take from his duty to attend him Mr Delany, Robert Hopkins, one of the Inspectors for the said Port, and did continue the said Hopkins with him from the 4th day of June to the 3d day of July 1796.”
“2d That the Collector (after being informed that the Surveyor had suspended the said Hopkins from his Office, for absenting himself from his duty as an Inspector, without the consent, and against the direction of the Surveyor) did insist upon reinstating the said Hopkins in his Office, before any hearing was had upon the said suspension—and for this purpose the said Collector did issue an order in writing, directing the said Hopkins to resume his Office, and notifying all whom it might concern that the said Hopkins was to be considered as an Inspector of the said Port of Philadelphia, the suspension of the said Hopkins by the said Surveyor notwithstanding.”
“3d That the said Collector, has within the space of the last thirteen Months or thereabouts at different times, and at those seasons when the greatest degree of business generally prevails in the Port of Philadelphia taken the said Hopkins from his duty as an Inspector for the said Port, to attend him, Mr Delany, on an excursion in the State of Pennsylvania, or into the State of New Jersey for upwards of Sixty days.”
“4th That the said Collector has paid unto the said Hopkins, and has charged to the United States, in the Accounts which the said Collector has rendered against the United States, his pay as an Inspector for the Port of Philadelphia, for a period of time, when the said Hopkins was not only not performing the duty of an Inspector, but when both the said Collector and the said Hopkins were beyond the limits of the Pennsylvania District being absent together, on an excursion into the State of New-Jersey.”
On the 27th day of August the Comptroller of the Treasury made his report, which with the testimony and documents adduced in the course of the enquiry and the comments of the parties thereon are herewith submitted. It is a satisfaction to the Secretary to be able to state, that though the passions of the parties, have been highly excited they have mutually born testimony to the moderation and impartiality with which the investigation has been conducted by the Comptroller.
As preliminary to the comments which the Secretary is to make on the charges and evidence now submitted, he conceives that it will not be useless to state his ideas of the powers and duties annexed to the Offices, of Collector, Naval Officer, and Surveyor.
The general duties of a Collector are.
1st to receive and record all reports manifests and documents to be exhibited on the entry Vessels or Merchandize.
2d To estimate all duties payable to the public, to grant all permits for unlading and delivering goods, to receive all monies and bonds and to account therefor to the Treasury.
3d To employ or appoint all Inspectors, Weighers, Guagers and measurers and to provide Stores weights and measures, with the approbation of the Secretary of the Treasury.
4th To exercise a general superintendance over whatever concerns the collection of duties and the execution of the Revenue Laws of the United States.
The general duties of a Naval Officer are.
1st To receive copies of all manifests, and concurrently with the Collector, to estimate all duties and to keep separate records thereof.
2d To countersign all permits, clearances certificates and debentures granted by the Collector.
3d As incident to the foregoing powers and duties he is to maintain suitable checks upon all receipts of money by the Collector and to certify the amount thereof to the Treasury when required.
The general duties of a Surveyor are.
1st To superintend and direct all Inspectors, weighers, measurers and Gaugers in his District.
2d To visit and inspect Ships and Vessels as they arrive and to put on board them one or more Inspectors.
3d To examine and compare the quantities of Goods entered with the Collector, with the quantities delivered pursuant to permits.
The Surveyors of the Customs in addition to the duties above recited, are charged with special duties under their Commissions as Inspectors of the Revenue for Ports; these duties consist in inspecting the unlading and transporting of distilled Spirits, Wines and Teas, and in granting certificates to accompany the same; As Inspectors of the Revenue for Ports; the Surveyors are subject to the instructions of the Supervisors of the Revenue in all other respects they are by Law “subject to the controul of the Collectors.”
The Inspectors of the Customs, are Officers whose duty it is to observe the conduct of Vessels, while in the Ports or within the Revenue jurisdiction of the United States; It is conceived to be most regular that the details of their duties within the Districts to which they belong, should be assigned to them by the Surveyors—the Collectors only have the power however to place an Inspector on board a Vessel to attend her from one District to another District—how far the Collectors may legally interfere in the distribution of particular services to Inspectors within a District is doubtful; in the opinion of the Secretary however the exercise of such a power, without special reasons, wd be inexpedient.
From this summary view of the duties of the Officers of the Customs it is easy to collect the intention of the Legislature respecting them and to infer that the following general course of conduct is no less prescribed by Law than by propriety and duty to the public.
The Collector is to have a general superintendence over the Surveyor and Inspectors and is to be considered as responsible for a faithful execution of the Laws; his principal and appropriate duties ought however to be considered as requiring particular attention to the course of Office business—The Surveyor ought to superintend and direct the business and duties which are to be performed on the Wharves and on board of Vessels; The naval Officer ought to regard it as his duty to examine accounts and documents, to keep records thereof for the purpose of maintaining a check upon the Collector’s accounts, and to detect or prevent errors. good sense, moderation and propriety require of the Collectors, that their agency in directing the conduct of the Inspectors, Weighers Gaugers and measurers should be exerted through the Surveyors whose power of superintendence ought to be real and effectual—good sense, moderation and propriety also require of the Surveyors, that they should freely consult with and be guided by the opinions of the Collectors except in cases of real diversity of sentiment as to their duties, when they ought to concur in stating for the decision of the Treasury, the questions upon which their doubts arise.
As the construction of the Law establishing the compensation of Inspectors of the Customs, constitutes one of the questions to be considered, the Secretary takes the liberty to state his opinion and knowledge of the practice which has obtained on this subject.
By the terms of the Law, the compensation of Inspectors is a diem allowance for every day they are actually employed in aid of the Customs. Until the first day of April 1795, this allowance was a Sum not exceeding one Dollar and sixty six cents diem. The compensation prior to April 1795 was evidently disproportionate to the importance of the trust; at present it may be deemed truly moderate. Though doubts may be entertained whether the strict Letter of the Law, recd in any case warrant a payment to an Inspector for any day on which some service was not actually performed; Yet a different practice consistent as it is believed with equity, with the spirit of the Law, and the good of the service; has governed: no secret or concealment as to the prevailing rule has at any time existed; on the contrary, the practice which has obtained was freely communicated by my predecessor and myself to a Committee of the House of Representatives to whom it was referred in the Session of 1795 to consider and report upon the compensations proper to be allowed to the Officers of the Customs; no doubt is now entertained but that the uniform diem allowance which was established alike for the Inspector in the principal and most expensive and for those in the smallest and least expensive Ports, was occasioned by the information communicated by the Treasury.
The practice referred to is this; that in the out Ports, the Collectors engage Inspectors to attend at those seasons when business occurs, or occasionally as is found practicable and most economical—the situation of a district as presenting a facility or difficulty of committing illicit practices, the course of business and various circumstances which it is difficult to enumerate, influence the appointment of a greater or lesser number of Inspectors, and the continuance of their pay, either constantly or occasionally. The charges of the Collectors are critically examined and if any thing doubtful or improper appears it is corrected by the Treasury. While however the state of a Port requires the time of an Inspector to be constantly devoted to the public, he is considered as actually employed in the sense of the Law and of the established usage.
What has been last said applies principally to the out ports, where but little business occurs; in the principal Ports, the constant service and attention of some Inspectors has been deemed always necessary. for the purpose of securing the services of faithful and competent characters, who possess a due degree of skill and experience it has been a practice to employ such a number as during the busy seasons of the year may be able, with their best and most diligent exertions to transact the business and this number is considered as constantly retained while they devote their attention exclusively to their duties. it is believed that this practice affords the best security for having the business well done and that it is on the whole most economical. It is certain that respectable Men can generally with facility establish themselves in this Country in permanent and steady employments—it is well known that they are not to be engaged upon condition of being liable to be dismissed at short notice—the compensation diem established by Law being as low if not lower than what is paid to ordinary porters and labourers for daily services, is a proof that an idea of some permanency of compensation exceeding that allowed to day labourers must be understood between the Collectors & Inspectors. If this idea was to be rejected and a different practice adopted, the Inspectors would of course be appointed from a Class of society much inferior to what they are at present; a greater number would be sometimes employed that at others—no skill or experience would be retained in this Class of Officers, frauds would be committed; while the direct expense upon the Revenue would be in no degree diminished.
Upon the principles before stated, the number of Inspectors ought to be such as on an average of the service to be performed in an entire year, would be reasonably employed, and such as during the most busy seasons, could be active exertions discharge the duties required by the public. Thus by extra exertions in one Season compensating for relaxations in another.
It is easy to see that in a service of this nature some thing must be left to discretion; and that the Laws cannot enter into details which preclude the exercise of opinion; cases will occur in which a partial belief will obtain that there has been a want of economy, where at the same time the circumstances may be too doubtful and complicated to justify censure; to evince the difficulty of forming a correct judgment upon these subjects; a comparison of the expences of collecting the Revenue in two Districts is presented.
In the year 1794 the duties payed and secured in the District of Pennsylvania exceeded two Millions of Dollars; of the property imported upon which these duties accrued, one third at least was exported and of course subject to a double expence of collection charged to the public during the year 1794 amounted to less than Thirty six thousand Dollars, or 1 & 4/5th Centum on the Sums paid and secured. During the same year the duties paid and secured in the District of New London of which General Huntington is Collector amounted to about One hundred and Seventeen thousand Dollars or 6 & 84/100 Centum on the Sums paid or secured. Thus it appears that in proportion to the duties paid or secured the expences in the District of New London compared with these, in the District of Pennsylvania are nearly in the proportion of four to one, while at the same time General Huntington’s character as an Officer is conspicuous and exemplary. No single criterion can be selected for judging of the conduct of an Officer; and a complex view must embrace too many considerations to produce a uniform opinion even in minds which are impartial.
It is not objected against Mr Delany that he has employed too great a number of Inspectors; but that he has to the injury of the public service taken Mr Hopkins from his duty on an excursion into the Country; This is the essence of the first charge.
That Mr Hopkins was absent with the Collector from June 4th to July 3d 1796 is certain, the question which arises therefore is, was the public service injured by this absence?
The general current of the testimony on this point appears to be, that the principal press of business was in the Months of April and May; in the beginning of June, the Inspectors say they were diligently employed, from and after the 10th of June there appears to have been a considerable remission of business.
With respect to the Ship John from inspecting which Mr Hopkins was taken, it appears that his absence commenced on Saturday morning the 4th of June; that no deliveries were made in the after noon of that day, and that on Monday morning of the 6th of June, the unlading was compleated. It results therefore from the testimony respecting the general state of the business, as well as the particular facts respecting the Ship John, that the absence of Inspector Hopkins, did not expose the Revenue arising from that Vessel to additional risque; the injury to the public from his absence, if any has existed must therefore have arisen from the manner of his quitting his duties and not from the absence itself independently considered. On this point the Secretary’s opinion will be hereafter expressed.
The second charge is in substance; that after the Surveyor had by a written notice suspended Robert Hopkins from his Office as Inspector, the Collector by a writing reinstated the said Inspector in his Office, before the charges preferred against him had been heared and determined.
On this point the Secretary is of opinion that the Surveyor had no power to suspend Robert Hopkins from Office. The power of a Surveyor over an Inspector is believed to have been accurately defined by General Macpherson, the present Naval Officer as appears from his testimony herewith transmitted. When an Inspector is deemed to be guilty of improper conduct, the Surveyor may direct him to desist from the business in which such improper conduct appears; or from all business if the public security so requires, until a Report can be made to the Collector; The Collectors have generally the power of deciding on questions respecting the conduct of Inspectors. Their decisions ought to be made with due respect to the opinions of the Surveyors—Indecent disrespect, or disobedient conduct towards a Surveyor would be a ground for dismission by a Collector; a refusal to dismiss an Inspector, when sufficient reasons were shewn for a dismission, would be a good cause of complaint against a Collector. The power of dismission however rests with the Collector and not with the Surveyor; to admit the power of appointment to be vested in one officer and the power of dismission in a different Officer would be to introduce a principle of disorgination and hostility, ruinous to the public service—It is a different thing to order an Officer to desist from particular duties, or even from all duties until an enquiry can be instituted from what it is, to suspend him from Office, in attempting to exercise this last power, the Surveyor has exceeded his authority.
The case has been supposed of a collusion between a Collector and an Inspector of a nature to render the Collector an improper person to decide on the conduct of the Inspector—If such a case should happen it would render necessary a representation to the Treasury for the purpose of being communicated to the President, but it could not increase the powers of a subordinate Officer.
In respect to the second charge, the Secretary is for the reasons above stated of opinion that there is no ground to culpate the Collector.
The third charge is that the Collector has within the space of about thirteen Months, at different times, when the business is generally most urgent, taken Robert Hopkins from his duty as Inspector, to attend the said Collector on excursions into the Country for upwards of Sixty days.
It appears from the testimony that Mr. Hopkins was appointed an Inspector in the Spring of 1793 & that since his appointment he has been absent in the company of Mr Delany during the following periods.
|from the 18th to the 28th day of June 1794||10 days|
|In the Month of May 95 two weeks & in the||21 days|
|Month of June 95 one week|
|During the Month of September 1795||30 days|
|from the 4th of June to the 3d of July 1796||29 days|
|Amounting in the whole to||90 days|
It appears that during the first and second periods of absence the Inspector has been allowed pay which has been charged to the United States; It is positively declared both by the Collector and Mr Hopkins that no pay was allowed for the Month of September 1795. Whether any pay will be allowed during the last absence in June and July, may depend upon the Judgment which shall be formed upon the charges under consideration.
The censure conveyed by this charge appears to be, that the Collector & Inspector were absent at busy seasons of the year and that the public service has suffered.
It is difficult to judge of a charge of this nature especially in respect to a distant period, and when as in the present case the Officer best acquainted with the case, being the late Surveyor, is dead. The general tenor of the testimony is that April and May & October & November are the most busy periods—during the last two Weeks of May 1795, the Collector & Inspector were absent; there appears however to be a general concurrence in the testimony, that the public business suffered no injury; so far as the Collector is implicated personally in the charge of neglect, the Secretary conceives it to be his duty to state, that he has known the Collector’s health to be feeble and declining, for some time past, and that in general his personal attention to his Office is exemplary and beyond what is bestowed by the Collectors of several of the principal Ports. Of particular times and circumstances, the Secretary has no knowledge. On a view of the whole evidence there does not appear ground to declare that the public interest has suffered by the absence of the Collector or Inspector.
The fourth charge is that the Collector has paid to Mr Hopkins his pay as an Inspector, not only for a time when he was not performing his duty, but for a time when he was absent with the Collector, beyond the limits of the District of Pennsylvania: as it cannot be concealed that this charge bears the aspect of an accusation of fraud and perversion of public Money, it is of a serious nature and merits a particular enquiry & consideration.
The first period of absence with the Collector, for which Mr Hopkins received pay is from the 18th to the 28th of June 1794 being ten days.
The following rules obtain in the Settlement of the Inspectors Accounts. A book is kept in the Surveyors Office, in which the Inspectors enter their daily services; at the end of a quarter, an abstract is drawn from this book, of the services rendered by each Inspector, which is certified by the Surveyor and paid by the Deputy Collector.
The Deputy Collector is entrusted with monies from time to time on account, from which partial payments are made occasionally, during a quarter—the quartily accounts of the Inspectors as rendered to the Treasury, therefore embrace a Settlement of Sums paid at various times—It is alledged in the testimony and appears probable from the nature of the business, that the Inspectors accounts are generally settled and paid, without any special consultations with the Collector.
The Law having established the compensation, the only question which can arise, is what services have been performed? this is settled by the Certificate of the Surveyor; no advantage would therefore arise from a minute attention to these settlements by the Collector, and if it were bestowed, business of more difficulty and consequence would most probably suffer.
With respect to the payment during the first absence in June 1794 it appears that an account was presented to the late Surveyor, without any specification of service during the absence. & that the late Surveyor refused to sign it, because Mr Hopkins had been absent from his duty, sometime in the Month of June, and as three Months were included in one account, the Surveyor would by his signature to the Account have allowed the whole thereof. But notwithstanding this objection it appears that afterwards the Account was presented again with these words inserted against the absent time “Coasting and other duty by order of the Collector.” Upon which the Surveyor certified the Account in the following manner “Examined and found right, Walter Stewart Surveyor.” The words against the absent time are not in the hand writing of the Collector, nor is there any evidence that they were inserted by his direction. It thus appears that General Stewart knew of Mr Hopkins’s absence, that he first objected to the account, and afterwards allowed it; he probably, though this only conjecture, consulted with the Collector, and was satisfied by him that Hopkins’s absence was on account of sickness or for some reason which ought not to occasion a forfeiture of his pay. As General Stewart was an honourable Man, as it is known that he felt no particular attachment to the Collector, and as the circumstances of the case must have been specially considered at the time, it is but reasonable to conclude, that no fraud could have been contemplated as existing. If the payment must be considered as fraudulent the character of the late Surveyor is necessarily implicated in the supposed fraud with that of the Collector—it appears to the Secretary that a conclusion so severe ought not to be drawn from the facts before stated.
The second absence of Mr Hopkins appears to have been between the 18th of May and the 19th of June 1795. In the Inspectors account, the following services are stated: from the 18th to the 31st of May attending the Brig Brothers, Moser from Jackemel and from June 1st to the 9th attending Coasting. The account is certified by Daniel Brower late Deputy Surveyor, in the following words “The above account is just and true” It has been paid and charged to the United States—It does not appear that the account attracted any special attention or caused any discussion at the time of Settlement.
The third absence was during the Month of September 1795—Mr Hopkins has sworn that he received no pay during this period—the Collector has asserted, the same fact. The accounts for the quarter ending with September 1795, have not been rendered for settlement—the affidavit of Mr Hopkins was publickly made and before persons who knew whether he spoke the truth or not—his general character is said to be good; he must be believed; of course the only question is, whether the public suffered an injury by his absence: this as before observed by the Secretary upon the third charge does not appear.
The fourth absence, is that upon which the present enquiry has arisen, namely from the 4th of June to the 3d of July 1796. no Certificate of service has been granted by the Surveyor; no payment is suggested as having been made, but if the fact were otherwise, it could only be considered as a declaration by the Collector, that in his opinion the Inspector was entitled to pay, the state of the case being known, there cannot exist that secrecy and collusion which constitute the essence of fraud.
To justify the claim made for pay by Mr Hopkins during his absences in June 1794 and in May and June 1795, it is alledged that he was in ill health—in respect to the first period the principal if not the only evidence of this fact, is his own declaration; the distance of time is such that special testimony could hardly be expected; this absence was about ten days and is that absence which attracted the particular attention of the late Surveyor General Stewart.
In respect to the second absence in May and June 1795 it is proved, that Mr Hopkins had been sick of a pleurisy but a short time before his departure; he had however so far recovered as to resume his duties; it is conceivable that a Man may attend to business, when a proper regard to the state of his health would justify or require relaxation; it is credible that self love may justify to a virtuous mind the presentation of an account for pay on the ground of indisposition when in fact no injury to health was to be justly apprehended from a customary attention to business—it is possible that a man whose general character is unexceptionable, may have fraudulently affected sickness as a pretext for indulging his pleasures; on the facts stated different minds will form different conclusions in respect to the conduct of Mr Hopkins; to the Secretary they do not appear sufficiently marked to justify a public imputation of fraud.
It has been stated that the Inspector’s accounts contain charges for specific services, when in fact no such services were performed; this is true and requires explanation. It appears to have been a practice with the Inspectors, during the sickness or necessary absence of their comrades to perform services on account of each other, and to enter the services of the substitute in the account of the person for whom they were performed. This has been done and allowed by the present Surveyor, the practice is inaccurate and must be corrected; every account ought to contain true recital of facts, which it now appears the Inspector’s account do not: But though inaccurate the practice cannot be called fraudulent; as it has obtained both before and since the charges now under consideration were presented.
A circumstance happened in the course of the enquiry, upon which the Surveyor has remarked with great asperity, and as appears to the Secretary upon mistaken principles; The case is as follows.
On the settlement of the Collector’s accounts for the quarter ending—December 31st 1794 in the Comptrollers Office, certain deductions had been made from the charges for the services of Inspectors, for which deductions the following reasons were communicated to the Collector.
“The accounts of David Rose and Jonas Simonds Inspectors are suspended for explanation; as they do not specify according to the usual practice the particular duties on which they were employed during the time for which the compensation is charged.” This information was communicated to the Collector in November 1795.
On the examination before the Comptroller the Collector proposed to the Inspectors from whose accounts deductions had been made, the following question, “what has been the usual practice among the Inspectors with respect to their mutually accommodating and assisting each other in case of absence of duty, from sickness, or from any other cause, and has it been usual or not, for their accounts to be allowed and paid during the time of such absence.”
The answers to the question were in substance, that it has been the usual practice, when an Inspector was sick or wished to be absent for a short time to engage some other Inspector, to exert himself to have the duty of the sick or absent person performed, and that in such case pay has been allowed.
It is alledged by the Surveyor, that the proceedings of the Treasury above referred to, establish a negative to the facts stated by the Inspectors in their reply; that the Collector knew of these proceedings—and that he improperly permitted the Inspectors to give erroneous answers.
To the Secretary, it appears, that the proceedings of the Treasury establish nothing but that the accounts referred to, appeared to be informal or incorrect and were suspended for explanation, they were not disallowed. besides the question of the Collector evidently had reference to the usages of the Custom House: The answers of the Inspectors were doubtless correct and at any rate could not have been different, if all the proceedings of the Treasury above referred to, had been fully explained at the time.
On a deliberate view of the whole subject it appears to the Secretary, that there is no sufficient ground whereon to establish a charge of fraud or wilful neglect of duty against either the Collector or Inspector Hopkins; it nevertheless appears that in two particulars the conduct of the Collector is liable to a just criticism, for which an admonition will be proper.
1st It appears that leave of absence was granted to Mr Hopkins, without any consultation with the Surveyor, and that a direct application was authorized by the Collector to an Inspector to take charge of the Ship John on board which Mr Hopkins was doing duty without any previous conference with the said Surveyor.
It appears to the Secretary that the Collector was not justified by the occasion in such an interference with the usual duties of the Surveyor and that considerations of duty policy and respect, ought to have produced a style of conduct less disagreeable, there is reason to believe that on other occasions, the Collector has been less circumspect in his demeanour towards the former and present Surveyor than was proper, that he has really given just cause for discontent, and that this error requires correction to prevent a diminution of that influence and discipline which the Surveyors ought to maintain over the Inspectors.
2nd There appear in the repeated excursions of the Collector in company with Mr Hopkins indications of intimacy and partiality, which have generated discontents among the Officers in some degree injurious to the public service; whether this intimacy was or was not founded on the amiable motives stated by the Collector, it has been certainly indiscreet, and such ought not to have been publickly manifested.
Though the principles of the usage established for compensating Inspectors is deemed unexceptionable, yet the Collector ought to be informed that great care is necessary to prevent abuses; and that compensation ought not therefore to be made except when sickness is apparent, or for such short and occasional absences as urgent business may require and during which the public business can and shall be faithfully and effectually performed by a substitute. All which is most respectfully submitted by.
Oliv. Wolcott Jr
Secy of the Treasury
DLC: Papers of George Washington.