Legal Papers of John Adams, volume 2
Cornelia
In this, Adams' earliest known appearance in an Admiralty action for a violation of the Acts of Trade, he and James Otis argued for Timothy Folger, Searcher and Preventive Officer at Nantucket. The lawyers were not engaged on the side of royal authority, however. Folger was a native of the island, sympathetic to Massachusetts mercantile interests. Arrayed against him were the customs officers of the port of Boston, backed by the newly created American Board of Customs Commissioners.
The Boston customs establishment, like that in other English and colonial ports, was under the joint control of a Collector and a Comptroller. Until 1767 these officers were appointed by the Commissioners of Customs in England,1 and were responsible to John Temple, Surveyor General of the Customs for the Northern District, also an appointee of the Com-148missioners. Temple was empowered to exercise disciplinary control over inferior officers and add his efforts to theirs in the control of illicit trade throughout the northern colonies. Acting in this capacity, he had commissioned Folger to serve at Nantucket in 1764.2
The Boston officers, Joseph Harrison, Collector, and Benjamin Hallowell, Comptroller, later claimed that they had always disapproved of Folger's position,3 and there is reason to believe that this claim was not entirely the product of hindsight. In the first place, there was a serious legal question whether Temple had power to appoint such an officer. Secondly, on a more immediate level, Nantucket was traditionally within the port of Boston, so that Folger's presence deprived Harrison and Hallowell of a portion of the income from fees and forfeitures which was a substantial part of their compensation.4
Finally, and most important, Folger represented a threat to the security of the revenue. Temple, who took office at the time of the writs of assistance controversy in 1761 (No. 44), had at first won a reputation as a dedicated and successful officer. From the beginning he had shown sympathy with the position of the Boston merchants, however, and his feelings soon manifested themselves in an open feud with Governor Bernard of Massachusetts and in doubts of the wisdom and efficacy of parliamentary efforts to raise a revenue in the colonies. Yet, although his brush with Bernard, in which he had dismissed James Cockle, Collector at Salem, on charges of corruption, had won him the acclaim of the merchants, it had also been approved by his superiors in England.5
149While Temple thus remained in favor, his appointment of Folger in 1764 is consistent with an intent to use his powers to mitigate the effect of the new duties and enforcement measures imposed by the American Act of that year.6 There was both practical justification and precedent for the appointment of an officer at Nantucket. The distance of the island from Boston made customs enforcement difficult and meant a long voyage around Cape Cod for vessels seeking to enter or clear. As a result, for at least forty years an officer appointed either by the Surveyor General or the Collector of Boston had been stationed there.7 Folger's background suggests other purposes, however. Descended from one of Nantucket's oldest families and deep in local politics, he had been master or part-owner in numerous whaling and trading voyages, and kept a store in which imported goods were sold. In addition he was engaged in extensive dealings in whale oil with various merchants, including John Hancock.8 Whether Temple in-150tended it or not, there now existed at Nantucket a sizable loophole for evaders of the Acts of Trade.
If the Boston customs officers had borne Folger's appointment with misgivings, they had made no formal protest. Temple was not only their superior, but a dangerous opponent, as his contest with Bernard had shown. Moreover, the political lines were still vague enough so that, despite his opinions, Temple could not be characterized as an enemy of the revenue.9 The Townshend Acts, passed in the summer of 1767, changed both of these conditions. Temple's post as Surveyor General was eliminated in the creation of the American Board of Customs Commissioners, a five-man body which was to sit at Boston and carry out the functions of control and management previously within the province of the English Customs Commissioners. Temple was made a Commissioner, but his former authority was now to be exercised by a majority of the Board.10
At the same time the political situation was solidified by the colonial reaction to the import duties laid by the Acts.11 Inspired by the vote of the Boston town meeting in the fall of 1767, a drive for the nonimportation of British goods developed, uniting and defining the opposition to royal authority. Folger, elected to an unruly House of Representatives in 1767, was clearly a part of this opposition. In January 1767 Temple had married Elizabeth, daughter of James Bowdoin, a prominent merchant and member of the Council, who became one of the leaders in the fight for nonimportation. Whatever his prior vacillations, Temple too was now definitely aligned with the Boston faction.12 The other Commissioners saw as their first duty 151the plugging of procedural loopholes that encouraged smuggling. Temple, who felt that compliance could be obtained without undue restrictions, was from the beginning of their deliberations an articulate but ineffective minority of one.13 The Boston customs officers now had both higher authority to support them in opposing Folger and a clear-cut political basis for doing so.
After the Commissioners took office on 16 November 1767 they occupied themselves in clarifying the scope of the new statutes, which were to take effect on 20 November, and in determining the extent of their new domain and the current state of the customs establishment. From the moment when three of them arrived from England on 5 November in the midst of a well-behaved but hostile Pope Day celebration, they had been aware of the opposition to them; they thus seemed determined to move carefully.14
The first call to action came on 29 January 1768 when Folger reported that a week previously he had seized the sloop Cornelia, William Summers master, at Tarpaulin Cove in the Elizabeth Islands, the easterly boundary of Buzzards Bay. The vessel was ostensibly bound for New York from the Dutch island of St. Eustatia with a cargo of eighteen casks of Bohea tea, a commodity that could be imported only by way of England and upon pay-152ment of the new duties.15 He had brought the Cornelia to Nantucket, sequestered her cargo in his house, and now sought advice on how to proceed. The Commissioners referred him to their solicitor, Samuel Fitch, for legal assistance and directed him to report the seizure to Harrison and Hallowell.16
These officers at once raised the question of Folger's authority to seize the vessel and, after consulting with Jonathan Sewall, Advocate General in Admiralty, informed Folger that his commission was invalid and that the seizure would fail if a claim were entered for the vessel or cargo. They offered, however, to let him accompany them to Nantucket to seize her again under proper authority. According to Harrison's later account, Folger agreed to do so and to join with them in the forfeiture proceedings in exchange for a substantial share as informer. When the time came to leave for the island, however, Folger backed out, explaining that his “friends” had advised him not to join, and that he was determined to file an information in his own right. Knowing that James Otis was one of Folger's “friends,” Harrison immediately dispatched Hallowell and George Lyde, Surveyor and Searcher of the port, to Nantucket, where they seized the Cornelia and cargo. Upon their return they found that Folger had, on 4 February, filed his information in the court of Admiralty. A new attempt to win him over failed, and, on 12 February, Harrison, Hallowell, and Lyde joined in a second information against vessel and tea.17
Hearings in both actions were set for 29 February, then continued.18 In the meantime other pressures were building up. On 26 February, with Folger voting in the majority, the House approved nonimportation resolutions, which pledged it, among other things, “to discountenance the use of foreign superfluities, and to encourage the manufactures of this province.”19 The Customs Commissioners met on 7 March and dismissed Folger, determining that a nominee of the Boston collector should be appointed in his stead. There was an immediate outcry in the press that Folger had been dismissed solely because of his vote on the resolves. The Board, in a later statement of its position, admitted asking him about his vote, but insisted that “he had been before charged with being concerned in Trade, and he was only told that the Board had no further service for him.” The Commissioners also suggested that direct opposition to the principal officers of the port and open alliance with the antigovernment faction did not constitute the conduct expected in the customs service.20 For whatever reason, Folger was no longer searcher and preventive officer when the case of the Cornelia came to trial.
Both proceedings were tried in the court of Admiralty on 21 and 26 March before Judge Robert Auchmuty, probably in a combined hearing.21 154No claim for vessel or goods appears to have been filed in either suit, but Adams and Otis were opposed by Jonathan Sewall, who had intervened in Folger's proceeding on behalf of the Crown and was doubtless of counsel for Harrison and his associates in their information. Adams' role is perhaps unfairly minimized in the later report of the Commissioners that Folger “having Mr. Otis for his Lawyer, the Cause was contested with great Spirit.”22
The three documents printed here are: (I) Adams' minutes on the depositions of several witnesses as to Folger's performance of his functions; (II) Adams' minutes of the arguments on both sides; and (III) Auchmuty's opinion and decree in the case, an unusual report which summarizes the arguments and deals with the questions involved in great detail.
Sewall's position was, first, that by statute only a duly commissioned customs officer could seize; second, that Folger had not been duly commissioned; and, third, that if his commission were valid, it had been terminated when Temple's office was merged in that of the American Board of Customs Commissioners. In reply Adams and Otis contended that no commission was necessary for the seizure, first, because under applicable statutes evidence of reputation as an officer was sufficient; second, because Folger had been a de facto officer whose acts were valid despite lack of authority. Then they argued in the alternative that Folger's commission was properly given by Temple, did empower him to make seizures, and was still in force despite the establishment of the American Customs Commissioners.
On 2 April, Auchmuty handed down his opinion and decree, dismissing Folger's information. He found that the statutes allowing reputation evidence created only a presumption, rebutted by the production of the invalid commission under which Folger had acted. Further, the common law rules validating the acts of a de facto officer were intended to protect innocent third parties who had relied upon the officer's apparent status; they could not be taken advantage of for his own profit by the officer himself. As for the commission, Auchmuty held that Temple had no power to create new officers, and, although he might have created a deputy, he had not done so in this case, thus making it unnecessary to consider in detail the effect of the creation of the American Commissioners.
Auchmuty's argument on the reputation statutes seems a proper construction. As for the de facto argument, he managed to turn Otis' own authority against him in pointing out the distinction between Folger's case and the cases chiefly relied on. If the arguments that Folger acted in good faith and that the proceeds of the forfeiture were a kind of compensation for his efforts might have altered the result, at least in a modern view, they do not seem to have been made by counsel.23
The question of the commission is more difficult. As Adams seems to have argued, the statutes establishing the customs were vague as to the types and duties of officers, and ambiguous as to the source of the power to appoint.24 Temple's general powers probably could have been read as implying an authority to create lesser officers to implement them; if so, it would seem unduly restrictive to require that this authority be exercised only through the formal creation of a deputy surveyor general. The real question was whether an officer so created had the power to seize, in view of the statutory limitation on that power. As an original matter, the language of that limitation, “officers of his majesty's customs for the time being,”25 could be stretched to include a person situated as Folger was, but the point does not seem to have been pressed by Adams or Otis, and Auchmuty did not address himself to the question. Even if Folger were duly empowered to seize, however, another ground supported Auchmuty's decision.
This ground was the fact that not only had Temple been removed from office but that the office itself had been abolished. The analogy to officers whose powers survive the death of the principal, urged by Otis, was thus inapposite. Here, the existence of the authority which had created the lesser office, rather than the life of the individual who had made the appointment, had terminated; it seems obvious that lesser offices also should cease to exist, barring express confirmation or ratification.26 Adams and Otis urged certain statutes as confirmatory, but these acts clearly applied only to appointments by the English Commissioners. They apparently did not argue that the American Commissioners had ratified Folger's appointment by keeping him on after November 1767, or even by dismissing him as unfit, rather than as a usurper. Thus, despite the obvious political advantage in a finding against Folger, Auchmuty's opinion seems on the merits to be sound.
Having dismissed Folger's information, Auchmuty on 4 April decreed in favor of Harrison, Hallowell, and Lyde in the other proceeding.27 Fol-156ger appealed both decisions to the High Court of Admiralty, but the result is not known. In any event, the vessel was sold, and the governor received his one-third share.28 The victory can have been small consolation to the Commissioners, however; they were almost at once embroiled in the disastrous consequences of the seizure of John Hancock's sloop Liberty (No. 46), which demonstrated that countering colonial resistance was more than a matter of plugging loopholes.
Not satisfied with the ordinary appellate process, Folger sailed to England in August 1768. There he petitioned the Lords of the Treasury for relief, asserting that the Cornelia and his position had both been unjustly taken away from him and that, as he had given up his position as shipmaster to serve as a customs officer, he was “now out of all employ whatsoever.” The last was a manifest exaggeration since he had been master on the voyage that brought him to England.29 His memorial was referred to the American Board of Customs Commissioners, who finally replied on 24 July 1769, denying the validity of Folger's complaints and pointing out his relations with the antigovernment faction.30 No record has been found of further action on the matter, but Folger was doubtless able to survive his losses, thanks to various maritime and mercantile ventures, which, despite his protestations, he never seems to have abandoned completely. That he did not fall out of political favor altogether appears in his appointment as 157Justice of the Peace for Nantucket County in 1771. Thereafter, he went on to play a leading role in that peculiar mixture of seamanship and diplomatic intrigue which was Nantucket's brief flirtation with neutrality during, and for a decade or so after, the Revolution.31
For the statutory authority of the Commissioners, see notes Instructions by the Commissioners of His Majesty's Customs to who is established Collector of His Majesty's Customs at
Colonial Period
204–212; letter of Joseph Harrison and Benjamin Hallowell to American Customs Commissioners, 30 April 1768, PRO, Treas. 1:465, fols. 179–193, printed in Wolkins, ed., “The Boston Customs District in 1768,” 58 MHS, Procs.
418, 429–432 (1924–1925). As JA suggests, text at note English Customs
5–25; 4 Andrews, Colonial Period
178–221.
As to the surveyor general's powers, see 4 Andrews, Colonial Period
202–204. This office was also modeled on the English system. See Hoon, English Customs
113–114, 190–191. For Folger's deputation, see note
In April 1768, after Folger had been dismissed, and again in July 1769, Harrison and Hallowell reported that their doubts of Folger stemmed from the beginning of his tenure. Wolkins, “Boston Customs District,” 58 MHS, Procs.
433–434; Harrison to Commissioners, 27 July 1769, PRO, Treas. 1:471, fols. 189–190.
The legal problems are discussed in text at notes 24–26 below. The position of Nantucket is described in Wolkins, “Boston Customs District,” 58 MHS, Procs.
421, 428–429. For the importance of fees, see id. at 438, 445; Harrison to Temple, 30 May 1766, 1 Bowdoin-Temple Papers (9 MHS, Colls.,
6th ser.) 74–75 (1897); Barrow, Colonial Customs 272–274; Instructions by the Commissioners 1 (1764); 6 W. & M., c. 1, §5 (1694); 5 Geo. 3, c. 45, §27 (1765). Compare Sewall's comment, text at note
Temple, born in Boston, but raised in England, was appointed surveyor general in Dec. 1760, but did not arrive in Boston until Nov. 1761. Treasury Warrant, 1 Dec. 1760, PRO, Treas. 11:26, p. 5 (a reference furnished the editors by Thomas C. Barrow). See 1 Bowdoin-Temple Papers xv–xvii; Quincy, Reports (Appendix) 428 note; Temple to Commissioners, Jan. 1762, Temple Letter Book, 1762–1768, fols. 7–9, MHi; Temple's Memorial, undated, id. at fol. 187. His early zeal is commended in Thomas Whately to Temple, 18 June 1764, id. at fols. 19–21. For the Cockle-Bernard affair, see Barrow, Colonial Customs 406–408; Ubbelohde, Vice Admiralty Courts
58–60; Whately to Temple, 5 Nov. 1764, 1 Bowdoin-Temple Papers 36–39; Joseph Harrison to Temple, 12 June 1765, id. at 57–58; Commissioners to Temple, 9 March 1765, 1 Bowdoin-Temple MSS, fol. 60, MHi. The feud with Bernard and opposition to the customs service seem to have begun with Temple's sympathy toward Benjamin Barons, dismissed as Collector in 1761. See note Bowdoin-Temple Papers 24–28. Temple and Bernard also could not agree on procedures for clearing vessels without stamps. See Edmund S. and Helen M. Morgan, The Stamp Act Crisis: Prologue to Revolution 134–139 (Chapel Hill, 1953).
4 Geo. 3, c. 15 (1764). Folger was commissioned on 17 Aug. 1764. See note Procs.
434–435. Temple had previously appointed several minor functionaries in the port of Boston, and had made one “Mr. Hubbard” deputy collector at Stamford, Conn., but these seem to have been ordinary dispensations of patronage. See id. at 418, 431–432; Harrison to Temple, 30 May 1766, 1 Bowdoin-Temple Papers 74–75. In 1764 and 1765, in addition to Folger, he appointed his brother-in-law, John Fenton, deputy collector at Albany; Edward Winslow, deputy collector at Plymouth; James McCobb, searcher and preventive officer at “the port of Kennebec”; and other similar officers at Charleston, Annapolis, Cape Breton, and Canso. Wolkins, “Boston Customs District,” 58 MHS, Procs.
418, 435–436; 1 Bowdoin-Temple Papers 66–70; PRO, Treas. 1:471, fols. 192–193; Book of Commissions, 1677–1774, fols. 44–45, 48, M-Ar; Temple to Commissioners, 10 April 1766, Temple Letter Book, 1762–1768, fol. 155. MHi. His appointments may all represent an effort to place favorably disposed men in strategic locations. For Temple's defense of the appointments, see Temple to Treasury, 10 Aug. 1769, 7 Bowdoin-Temple MSS 18–27, MHi.
Wolkins, “Boston Customs District,” 58 MHS, Procs.
432–433. See note
On the Folger family, see Alexander Starbuck, The History of Nantucket 113, 740–755 (Boston, 1924), where the Timothy Folger in question here (1732–1814) is genealogically confused with his uncle at p. 749. Compare 1 Vital Records of Nantucket, Massachusetts, to the Year 1850 509 (Boston, 1925); 3 id. at 472 (Boston, 1927); 5 id. at 280 (Boston, 1928). Folger was appointed coroner in 1762. Whitmore, Mass. Civil List
159. His mercantile interests are catalogued in Joseph Harrison's Report to the American Customs Commissioners on Folger's memorial, PRO, Treas. 1:471, fols. 472–474. See also 1 Commerce of Rhode Island (69 MHS, Colls.
) 97–98 (1914). For the connection with Hancock, see, for example, Folger to Hancock, 28 June 1764, 2 Hancock Papers 165, MB; list of debts to Hancock, 4 May 1769, id. at 227. See also W. T. Baxter, The House of Hancock 169–174, 226–231 (Cambridge, Mass., 1945); Abram E. Brown, John Hancock His Book 274 (Boston, 1898); Edouard A. Stackpole, The Sea-Hunters 88 (N.Y., 1953). For his subsequent career, see note 31 below.
Harrison, appointed collector in 1766, was doubtless further inhibited by the fact that he had obtained his position in part through Temple's influence, and had assisted in presenting Temple's case in the matter of Cockle in England. See Temple to Whately, 3 Oct. 1764, 1 Bowdoin-Temple Papers 29; Harrison to Temple, 12 Jan. 1765, id. at 42–45; 12 July 1765, id. at 62–64. Moreover, Harrison may have had some sympathy for the colonial view himself. See William Molineux to——, June 1768, 3 Chalmers New England MSS 1, MH. Temple's strength was dependent in great part upon his family connection with the Grenvilles, who had been his patrons during his early years in England and continued to ease the way for him. See 1 Bowdoin-Temple Papers 1, and materials cited in note 5 above. See also Charles Paxton to George Townshend, 6 Nov. 1769, 56 MHS, Procs.
351–352 (1922–1923).
The Commissioners were authorized by 7 Geo. 3, c. 41 (1767). For their commission, see note AHR
777–785 (1940). The offices of all the colonial surveyors general were abolished and their commissions revoked when the Board was commissioned. Id. at 783; Samuel Venner to Thomas Bradshaw, 28 March 1768, PRO, Treas. 1:465, fols. 250–251.
7 Geo. 3, c. 46, §§1–7 (1767)
On nonimportation, see Arthur M. Schlesinger, The Colonial Merchants and the American Revolution, 1763–1776 106–111 (N.Y., 1918). Folger sat for a single term in the House at this time. Starbuck, History of Nantucket 635; 18 A&R 225. For Temple's marriage, see 30 Boston Record Commissioners, Reports
329 (1903); 1 Bowdoin-Temple Papers 80–81. The Commissioners and Hutchinson both blamed Temple's opposition on his marriage, which brought him also into close relationship with James Pitts and John Erving, patriot members of the Council. See Hutchinson to ——, Dec. 1769, 26 Mass. Arch. 417; Commissioners to Treasury, 6 Jan. 1769, PRO, Treas. 1:471, fols. 438–439, 452.
For the disputes between Temple and the Commissioners, see Clark, “American Board of Customs,” 45
AHR
782, 790–791. Temple dissented in the Board's determination to flee to Castle William after the Liberty riots in June 1768 (No. 46) and in the dismissal of John Fisher, collector at Salem, for corruption in July 1768. In the latter case, he was upheld by the Lords of the Treasury, who ordered Fisher reinstated. See No. 47, note 7. Finally in Feb. 1769 the other four members of the Board complained formally and at length to the Treasury about Temple's continuing opposition to their doings. PRO, Treas. 1:471, fols. 429–430. See also sources on Temple's marriage, note 12 above. For a sympathetic view of Temple's position, see Memorial of Samuel Venner to the Duke of Grafton, 1 May 1769, PRO, Treas. 1:471, fols. 495, 497. As to Venner, see note 16 below. Temple was finally dismissed in the fall of 1770, but he soon obtained a position in the English customs and lived to be British consul at New York after the Revolution. Clark, “American Board of Customs,” 45
AHR
791; 1 Bowdoin-Temple Papers xvi–xvii, 151–152, 281–282.
See Commissioners to Lords of Treasury, 12 Feb. 1768, PRO, Treas. 1:465, fols. 330–334; Charles Paxton to George Townshend, 24 Feb. 1768, 56 MHS, Procs.
348–349 (1922–1923). For examples of their activities, see opinions of the solicitor general on construction of the statutes, 15 Dec. 1767 and 18 Jan. 1768, PRO, Treas. 1:465, fols. 138–144; extracts of general letters to the collector of each port, 10 Dec. 1767 and 11 Jan. 1768, id., 1:471, fols. 177, 179. The Minute Book of the Vice Admiralty Court shows that no seizures were prosecuted between Nov. 1767 and the entry of Folger's suit, note 17below. The arrival of the Commissioners is described in Clark, “American Board of Customs,” 45
AHR
785–786. Following the formula prescribed for the English Commissioners in 6 W. & M., c. 1, §5 (1694), Temple and Henry Hulton, “the first two named in the Commission,” took oath in the Superior Court, “before the Barons of the Exchequer,” on 16 Nov. 1767. See Minutes of the Commissioners, 16 Nov. 1767, 7 Bowdoin-Temple MSS 147, MHi; compare Min. Bk. 86, SCJ Suffolk, Aug. 1767, following N–115.
The import restrictions were laid by 7 Geo. 1, Stat. 1, c. 21, §9 (1721), and the duties by 7 Geo. 3, c. 46 (1767).
Letters of Folger to Commissioners, 29 Jan., 1 Feb. 1768, PRO, Treas. 1:471, fols. 171–174; Minutes of the Commissioners, 29 Jan., 1 Feb. 1768, 7 Bowdoin-Temple MSS 147, MHi. Compare the account of the Commissioners replying to Folger, 24 July 1769, PRO, 1:471, fol. 363. According to Samuel Venner, writing after his dismissal as secretary to the Commissioners (No. 46, notes 20, 27), almost as soon as the Board was constituted, the Commissioners had begun a concerted attack on Temple by questioning the legality of a list of his former appointments which he had submitted. Upon the seizure of the “the Board having consulted Mr. Samuel Fitch, then acting as their Soliciter, he reported that a Libell should be filed in the Court of Vice Admiralty against the Vessel and Goods. But the Commissioners apprehending that this would give a Sanction to such Officers [i.e.Temple's appointees], immediately declared that Mr. Folger had no Power to make such Seizure, and directed the Collector and Comptroller of the Port of Boston to reseize the Vessel and Cargo.” Venner to Duke of Grafton, 1 May 1769, PRO, Treas. 1:471, fol. 496.Cornelia,
The chief materials cited here and in note 17, above, supporting the view that Harrison and Hallowell took the initiative to reseize, were prepared by the Commissioners or the officers, and are thus as liable to prejudice as Venner's account. Temple's own copy of the Commissioners' Minutes indicates that he did not submit a list of his appointees until 14 March, however. 7 Bowdoin-Temple MSS 151, MHi. Folger's Memorial to the Treasury, 24 Nov. 1768, states that it was the collector and comptroller who declared the seizure illegal. PRO, Treas. 1:471, fols. 366–367. Although the Commissioners were probably unofficially aware of what was going on, the fairest conclusion seems to be that their opposition to Temple's appointments was brought about by Folger's case, rather than that the opposition to Folger was a calculated part of a scheme directed against Temple.
Folger v. The Cornelia and 18 Casks of Tea, Vice Adm. Min. Bk., 4 Feb. 1768; Harrison v. The Cornelia and 18 Casks of Tea, id., 12 Feb. 1768. See notices of monitions, Boston Gazette, 18 Feb. 1768, p. 1, col. 1. For accounts of the maneuvering prior to the filing of suit, see the materials cited above, note 16; Harrison and Hallowell to Commissioners (extract), 8 March 1768, PRO, Treas. 1:471, fols. 181–182; Folger's Memorial, 24 Nov. 1768, id., fols. 366–367; Harrison to Commissioners, 21 June 1769, id., fols. 472–475. Harrison's fears about Otis are substantiated by the latter's familiarity with Folger's commission in the incident of 11 Feb., described below, note Diary and Autobiography
47–48.
Vice Adm. Min. Bk., 4 Feb., 12 Feb. 1768.
Mass. House Jour.
1767–1768, p. 198–199. Boston Gazette, 29 Feb. 1768, p. 2, col. 2. See American Commissioners to Lords of Treasury, 28 March 1768, PRO, Treas. 1:465, fols. 363–364.
See Minutes of Commissioners, 7 March 1768, PRO, Treas. 1:471, fol. 159; Boston Gazette, 14 March 1768, p. 3, col. 1; Commissioners to Treasury, 24 July 1769, PRO, Treas. 1:471, fols. 364–365. Compare Hutchinson to ——, Dec. 1769, 26 Mass. Arch. 417, 418. Temple did not dissent from Folger's dismissal, but on 10 May 1768, he wrote a testimonial for him. PRO, Treas. 1:465, fols. 248–250. There was a specific prohibition against engaging in trade and an injunction to report any such activity by inferior officers in the Collector's instructions. Instructions by the Commissioners 6 (1764). Most of Temple's other appointees were reappointed. See note
Vice Adm. Min. Bk., 4 Feb., 12 Feb. 1768. See Rowe, Letters and Diary
157, 158. Interrogatories on Folger's behalf were served on the Commissioners. After taking Fitch's advice, they directed him to except to the interrogatories. Minutes of the Commissioners, 24, 25 March 1768, 7 Bowdoin-Temple MSS 155–157, MHi. It is not known whether the exceptions were filed, or what the result was.
Commissioners to Treasury, 24 July 1769, PRO, Treas. 1:471, fol. 364.
The rule at common law in the United States in the 19th century was that a de facto officer was not entitled to compensation (except, perhaps, his expenses), even when he had acted in good faith. Floyd R. Mechem, A Treatise on the Law of Public Offices and Officers §§331–334, 342 (Chicago, 1890). More recently some courts have allowed compensation, even where there is a rightful claimant, if the de facto officer has acted in good faith. Eugene McQuillin, The Law of Municipal Corporations, vol. 4, §12.181 (Chicago, 3d edn., 1949); Charles S. Rhyne, Municipal Law 145 (Washington, 1957).
See JA's argument, text at notes
13 & 14 Car. 2, c. 11, §15 (1662), quoted in note
There was authority to this effect in the 18th century. See 16 Viner, Abridgment
, tit. Officers and Offices, O. 4, pl. 7. For similar modern authority, see Mechem, Public Offices §407; 3 McQuillin, Municipal Corporations §§12.115, 12.121.
Vice Adm. Min. Bk., 12 Feb. 1768. See Harrison and Hallowell to Commissioners, 8 April 1768, PRO, Treas. 1:471, fol. 183.
Vice Adm. Min. Bk., 4 Feb., 12 Feb. 1768. See order of sale, Massachusetts Gazette, 15 April 1768, p. 3, col. 2. Andrews suggested that the Minute Book must be in error in recording that this appeal was to the High Court, because he believed that after 1766 Vice Admiralty appeals lay only to the Privy Council. Andrews, “Vice Admiralty Courts in the Colonies,” in Records of the Vice Admiralty Court of Rhode Island, 1716–1752 22 note (Washington, ed. Dorothy S. Towle, 1936). Subsequent research has disclosed that the High Court and the Privy Council continued to exercise concurrent jurisdiction in appeals, at least in cases under the Acts of Trade, after 1766. See Smith, Appeals to the Privy Council
191–192. A newspaper correspondent reported that “The first Civilian in this Kingdom has undertaken for Capt. Folgier in his Appeal from your [i.e. the Boston] Court of Admiralty; and it is expected that he will not only succeed in the appeal, but also have a handsome appointment.” Boston News-Letter, 12 Jan. 1769, p. 2, col. 2.
Rowe, Letters and Diary
173. Boston News-Letter, 25 Aug. 1768, p. 2, col. 3. Commissioners to Treasury, 24 July 1769, PRO, Treas. 1:471, fol. 365. Folger's memorial, received on 24 Nov. 1768, is found in id. at fols. 366–368. It was accompanied by Temple's testimonial, note 20 above.
American Commissioners to Treasury, 24 July 1769, PRO, Treas. 1:471, fols. 363–365. The reply was accompanied by much documentation, including statements of the customs officers, earlier letters from their records concerning the surveyor general's powers, and Auchmuty's opinion and decree (Doc. III). The documents, which have been heavily relied on in this account, are scattered throughout PRO, Treas. 1:465, 471. Folger returned to Massachusetts in April 1769. Massachusetts Gazette, 27 April 1769, p. 1, col. 3. In June he applied to the Commissioners for reinstatement, but action was deferred pending reply to the Memorial. Minutes of the Commissioners, 6, 20 June 1769, 7 Bowdoin-Temple MSS 180, MHi. Temple, who apparently saw the attack on Folger as an attack on himself, wrote at length to the Treasury in Folger's behalf, asserting the power of the surveyor general to appoint inferior officers and the legality of seizures made under such appointments. Temple to Bradshaw, 10 Aug. 1769, 7 Bowdoin-Temple MSS 18–27, MHi.
As to Folger's commercial activities, see notes 8, 29, above. For his appointment as Justice, see Whitmore, Mass. Civil List
148. The adventures of Folger and Nantucket from 1775 to 1795 are chronicled in Stackpole, Sea Hunters 66–144. See also Starbuck, History of Nantucket 206–259, 384–414. In 1785 Folger served again as a Representative to the General Court. Id. at 636. He was related to Benjamin Franklin and in 1771 provided him with a map of the Gulf Stream, upon which Franklin relied in later scientific writings. Id. at 374–375. For Folger's later contact with JA, see No. 58, note 9.
James Athern Esqr.
Joshua Gardiner.
2 Folger has entered and cleared Vessell I am concerned in to and from London. Commonly reputed a Custom House Officer at Nantucket. Have seen a Plantation Certificate signed by him, the Governor and Peleg Gardiner Naval Officer.3
Jno. Handcock Esqr.
4 Cleared two Vessells that Deponent is concernd in for London, since the arrival of the Commissioners.5 And has acted in all Respects, with the Regard to my Navigation at Nantucket, as the officers of the Customs do here. Commonly reputed an officer of the Customs. I know of his Acting, by his clearing my Vessells. I cant say I ever saw a Clearance of his signing, or saw him sign one. I know of his Clearing my Vessells by the Consequences for that the Vessells were admitted to an Entry in London. And others here by the Officers here.
Thos. Gray. Dep. vide
Mr. Sheaf. Have seen Papers of his signing, as Searcher and preventive Officer at Nantucket. Coasting Clearances. I acted under Sir H. Frankland, as Deputy Collector for this Port, for some Years.6 Mr. Harrison the present Collector, wrote a Letter to Mr. Folger giving him Instructions about a Vessell with sugars at Nantucket.7
Captn. Partridge. Used
In JA's hand. Adams Papers, Microfilms, Reel No. 185.
The deponent may have been the junior partner in Folger & Gardner, Folger's whale oil business. See sources in note 8 above.
The term “Plantation Certificate” may here refer to the certificate of registry, required for every vessel by the statute 7 & 8 Will. 3, c. 22, §§17, 18 (1696), in which the governor and collector attested that oath of the vessel's place of construction and ownership had been made by the master or owner before them. Although there was no requirement that the naval officer join in this procedure, that official was the governor's appointee charged with general responsibility for maritime matters and oath was often actually taken before him, the governor's name probably being affixed to certificates in blank beforehand. See Register of the Lusanna, 28 June 1773, cited in No. 58, note 16; compare 3 Hutchinson, Massachusetts Bay, ed. Mayo, 311–312; Instructions by the Commissioners, Form I (1764). As to the naval officer, see generally, 4 Andrews, Colonial Period
187–189. It is perhaps more likely that the reference is to one of the certificates that bond had been given or other export requirements complied with, issued as part of the vessel's clearance. 7 & 8 Will. 3, c. 22, §13; 4 Geo. 3, c. 15, §24 (1764). The term seems to have been so used on occasion. See Instructions by the Commissioners for Managing and Causing to Be Levyed and Collected His Majesty's Customs, Subsidies, and other Duties in England, to who is established Collector of His Majesty's Customs at in America 13 (London, ca. 1733). The signature of the governor was required only on the certificates attesting that pig iron, hemp and flax, and hewn timber were the produce of the colonies. 23 Geo. 2, c. 29, §5 (1750); 4 Geo. 3, c. 26, §3 (1764); 5 Geo. 3, c. 45, §2 (1765); Instructions by the Commissioners, Forms XXVII, XXIX (1764). In the more usual certificates the collector and naval officer alone seem to have signed. See certificates of the Lusanna, cited in No. 58, note 17; compare certificates of the Rebecca, Pensacola, 28 Feb. 1765, SF 101107.
For Hancock's business relations with Folger, see note 8 above.
The American Board of Customs Commissioners, who landed on 5 Nov. 1767 and took office on 16 November. See text and note 14 above.
Reports (Appendix) 424–429; Stark, Loyalists of Mass.
439; Wolkins, “Boston Customs District,” 58 MHS, Procs.
431, 436; PRO, Treas. 1:471, fol. 161, 461–463; 7 Sibley-Shipton, Harvard Graduates
253.
Perhaps a reference to an episode in April 1767 in which Folger sought to collect the duties on a vessel arrived at Nantucket from the Spanish sugar port of Monti Christi, which had not entered at Boston. When Harrison asked Temple for guidance, the latter replied, “Capt. Folger has no Authority to Enter or clear any Goods that are Dutiable and the Vessel he mentions I think ought to be Entered at Boston before anything is discharged; after she is so Entered, I have no objection to her unloading at Nantucket under the Inspection of Mr. Folger, or if you think necessary send an Officer from Boston to inspect her unlading, which Officer they must pay.” Letters of Harrison and Temple, both dated 13 April 1767, PRO, Treas. 1:471, fols. 185, 188.
The Affairs and Transactions of the Customs and Revenue, are very loose. Customs and Duties and subsidies, have from Time to Time been granted by Parliament to his Majesty and the Collection and Management of them has been committed by Parliament to his Majesty, in short the Crown seems to have been entrusted with a discretionary Power by the Parli of appointing as many Sorts of Officers and as many in Number, as are or shall be thought convenient. We hear of Surveyors, Collectors, Searchers, and Comptrollers but there is not any act of Parliament, which describes and limits their Provinces and Powers.2
Compare the Commission of the Commissioners with the Act of Parliament on which it is grounded. How small the Foundation! How mighty the super Structure! Are there no Powers in the Commission which are not pointed out in the Act?3
160Compare the Act that empowers the King to constitute Commissioners at Home, with the Powers exercisd by them,4 and by the late Surveyors General as Representatives of them.5 The Commission empowers to suspend, and remove &c. Does the Act of Parliament enable the K. to give such Powers to Commissioners?
Where did Mr. Lechmere get his Authority to suspend Mr. Barons as Collector of this Port? He claimed an Authority, and exercised it of suspending.6 Yet there is no Act of Parliament in the whole Statute Book, that enables the K. or Commissioners of Customs or any Body else to create such an officer as Surveyor General.
Sewall.
Folgiers Commission. Preventive officer. In my behalf.7 All Temples 161Authority ceased, on Arrival of Commissioners. Made vs. Claimers.8 Exclusion of officers and
Reputation and Exercise sufficient. 6. G. 1, c. 21, §24.10 11. G. 1, c. 30, §32.11
Continuance of Deputations &c. after Death of Commissioners. 12. Ann. St. 2, c. 8, §13.12
Comrs. of Customs. 25th. Car. 2, Chap. 7 §3.13
Comrs. of Customs and Lds. of Treasury to appoint officers. 7. & 8. W. 3. Chapt. 22§11.14
1637. G. 3d15
Mr. Otis. Admitted an officer De Facto, and therfore have given up their Cause. Distinction between King De Jure and De Facto.16 Maxim officers to be favoured.
Viners Abridgment Tit. Officers, and Offices G, Plea 2. Keeper of Goal De Facto, and De Jure.17 Mayor De Facto.18 G. 4, Plea 2. All Judicial Acts shall be good.19Colour of Election all Judicial and Ministerial Acts good.20
164Evidence that he was in Fact an officer, an officer De Facto.
If it should appear that the King was deceived21 in his Grant and issued a Commission to the Commissioners that was void, would it be pretended that all their Acts and Orders through the Continent were void? No. Their Reputation And Exercise, sufficient to make their Acts and orders good.
All the Officers Comptrollers, Searchers Inspectors and even Commissioners them selves are only Preventive officers, none of them are to collect his Majesty's Duties.
Wonderfull Parenthesis (in my Behalf).22 These Words cant make Folger a Deputy, merely Surplussage, currente Calamo, and may go out again without injuring the Commission.
If not rejected as surplusage, yet capable of several Constructions that will not vitiate or render void the Commission.
Whether the Surveyor General had, and the Commissioners have a Power to dismember a Port, or to make any Alterations in a Port, Yet if they will undertake to do it, it must be good till set aside by superiour Authority.
Lechmere went to England and appointed Coll. Brinley his Deputy in his Absence, and many of the officers got him to allow them salaries &c. Wages, Fees or some thing that they never could get before, and particularly the present Commissioner Paxton got a large sum at that Time.23
165A Deputy Sherriff would be liable to an Action if he should act after the death of his Principal, but this is not the Case of the Custom House officers. Their Deputations or other Authorities, are not nullified by the Demise of the Crown, any more than the Judges.24
2 Lev. 131. 10. Co.——.25
Sewall. General Question, whether Mr. Folger had any Authority to make the Seizure.
The supposition of his having another Commission besides this from Temple.
Q. whether I have not offered such Evidence of his Having no Authority, as shall oblige Folger to produce his some other Commission.
The Act of 6. G. 1, c. 21, §24.26 intended for the security of the Officers and off the Revenue. It is inconsistent with Common sense to suppose that the Legislature had any such Case in View, as this before your Honour.
This Act not extended to America.
I believe there is no Bottom to this Affair of the Customs.
By fair Contract the officers entituled to all the Fees within Their District.27
166In my Behalf, intended to make him Deputy, not to make a new office or officer. No Person can make a Deputy but the Principal. No Surveyor General can make a Deputy Collector, any more than I, as Advocate can make a Deputy Judge of Admiralty, or than your Honour can make Deputy Advocate General.
Surveyor and Searcher.28
In JA's hand. Adams Papers, Microfilms, Reel No. 185. The first four paragraphs seem to be JA's notes for an argument that in the absence of specific statutory language an officer's authority was to be found in his commission or in customary practice. See the statutes in notes
See note 1 above.
Presumably the American Board of Customs Commissioners, notes 10, 14, above. The act authorizing their positions provided that the customs in the plantations might “be put under the management and direction of such commissioners, to reside in the said plantations, as his Majesty, his heirs, and successors, by his or their commission or commissions under the great seal of Great Britain, shall judge to be most for the advantage of trade, and security of the revenue of the said British colonies.” The commissioners, “or any three or more of them,” were to “have the same powers and authorities for carrying into execution the several laws relating to the revenues and trade” of the colonies as other acts gave to the English commissioners, and it was to be lawful for the King “in such commission or commissions, to make provision for putting in execution the several laws relating to the customs and trade of the said British colonies.” 7 Geo. 3, c. 41, §§1, 2 (1767). Their commission, which is set out in Book of Commissions, 1677–1774, fols. 83–92, M-Ar, was detailed, providing not only the general powers conveyed by the Act, but power to appoint and suspend inferior officers (see No. 50, note 15); power to apply the funds collected to rewards and salaries; power to administer oaths, to enter and search vessels and buildings, to compound forfeitures, to compel obedience from inferior officers and assistance from other officials; and authority to oversee the accounts of the entire system. In addition the Commissioners were granted salaries, were relieved of liability for the defaults of inferior officers, and were freed from obligations for jury service and other local offices. Part of the text is quoted in No. 50, notes 15, 16.
The English Customs Commissioners were first appointed by royal patent in 1671 and seem to have functioned by that authority until the passage of 9 Geo. 1, c. 21, §1 (1722), which, to remedy a defect in the Act of Union with Scotland of 1707, provided that “the customs and other duties, now under the management of the several and respective commissioners of the customs of
The Act also made it lawful for the King “in such commission or commissions to make provision for putting in execution the several laws relating to the customs.” England and Scotland, shall and may be put under the management of one commission of the customs for the whole united kingdom, or under the management of several commissions of the customs for England and Scotland respectively, from time to time, as his Majesty shall judge to be most for the advantage of trade and security of his revenues.”id. §2. See Hoon, English Customs
56–57. The very extensive powers actually granted in the commissioners' patents, including the appointment and dismissal of inferior officers, are summarized in id. at 59–60. For their authority over the colonial customs, see notes
That is, John Temple and the surveyors general for the other continental districts, whose commissions were revoked upon the appointment of the American Board of Customs Commissioners. See note 10 above. For their powers, see text at note 2 above.
Benjamin Barons, appointed Collector in 1759, was already on bad terms with the rest of the customs establishment, and sought to turn the system to his own profit by allying himself with the Boston merchants. In June 1761 he was dismissed by Thomas Lechmere, the Surveyor General, on charges of interfering with the Admiralty courts and the customs officers; he was not reinstated, despite the appeals of the merchants and the tacit support of Temple, who succeeded Lechmere in the midst of the squabble. See notes 5, Reports (Appendix) 425–426, 541–557. See generally Barrow, Colonial Customs 262, 352–360; see also No. 44, note 21. As to the Surveyor General's power to suspend and appoint, see note
The text of Folger's commission, dated at Boston, 17 Aug. 1764, and signed by Temple, is as follows: “To all People to whom these presents shall come, Know ye, That I the Surveyor General of his Majesty's Customs in the Northern District of America, By Vertue of the Power and Authority to me given, Do hereby appoint Timothy Folger to be Searcher and preventive Officer in his Majesty's Customs at the Island of Nantucket in the Province of Massachusetts Bay and by Vertue of these presents he hath Power to enter any Ship, Bottom, Boat, or any other Vessel, as also into any Shop, House, Warehouse, Hostry, or other Place whatsoever, to make diligent Search into any Trunk, Chest, Pack, Case, Truss, or any other Parcel or Package whatsoever, for any Goods, Wares or Merchandize, prohibited to be Imported or Exported, or whereof the Customs or other Duties have not been duly paid, and the same to Seize (in my behalf) to his Majesty's Use, and also put in Execution all other the lawful Powers and Authorities for discharging the Trust reposed in him as an Officer of the Customs In all things proceeding as the Law directs; Hereby praying and requiring all Officers both Civil and Military In the Province of the Massachusetts Bay to be aiding and assisting to him the said Timothy Folger in all things as becometh.” Book of Commissions, 1677–1774, fol. 39, M-Ar.
Folger took the necessary oaths before Governor Bernard on 18 August. Ibid.
Probably an argument by Sewall that Folger's defenses under the Acts of 6 and 11 Geo. 1, notes
The reference is not clear. The phrase may simply echo the thought expressed in text at note Colonial Period
204.
There follows a gap of half a page in the MS. The materials which follow in text through note 53 were probably JA's notes for his own argument.
6 Geo. 1, c. 21, §24 (1719), provided that “if upon trial or trials of or in any information, action, suit or prosecution whatsoever relating to his Majesty's duties of customs and excise, or to either of them, or to any other his duties whatsoever, or to any seizure or seizures, penalty or penalties, forfeiture or forfeitures, relating to the said duties, or any of them, or if upon any trial or trials of or in any action, suit or prosecution whatsoever against any person or persons, for anything done by virtue or in pursuance of any act or acts of parliament relating to the said duties, any or either of them, any question or questions shall be made, or any doubt or doubts, dispute or disputes, shall arise or happen, touching or concerning the keeping of any office or offices of excise in any city or cities, town or towns, or touching or concerning any one or more defendants being an officer or officers of or for the said duties, any or either of them, that in every such case and cases proof shall and may be made, or evidence given, either of the actual keeping of such office or offices of excise in such city or cities, town or towns, or of such one or more defendants actually exercising of and being employed and intrusted in such office or offices respectively, before and at the respective time and times when the matter or matters in question upon such trial or trials shall happen to have been done or committed, or omitted, or neglected to have been done or performed, without producing any particular person or persons to prove the names of the particular and respective commissioners to any commissions in the respective cases before-mentioned, any or either of them, to be of their own hand-writing; and that in every such case and cases respectively such proof and evidence shall be deemed and taken to be legal and sufficient evidence, unless or until by other evidence the contrary shall or do appear.”
11 Geo. 1, c. 30, §32 (1724), simplified the language and clarified the coverage and procedure of the Act of 6 Geo. 1, note “upon the trial of any information or indictment for assaulting, resisting or obstructing any officer or officers of the customs, excise or duties upon salt, or other duties due and payable to his Majesty, in the execution of his or their respective office or offices, or for rescuing any goods or merchandizes seized or to be seized by any such officer or officers; any question shall arise, whether any person be an officer of his Majesty, his heirs or successors, of or for any of the said duties: in every of the said cases, proof shall and may be made and admitted, that such person was reputed to be and had acted in, and in fact exercised such office, and at the respective time and times, when the matter or matters in controversy upon such trial or trials shall happen to have been done or committed, or omitted to have been done or performed, without producing or proving the particular commission, deputation, or other authority, whereby such officer was constituted and appointed, and that in every such case such proof shall be deemed and taken by the judges or justices before whom any such trial shall be had, to be good and legal evidence, unless by other evidence the contrary shall be made to appear; any law or usage to the contrary hereof notwithstanding.”
12 Anne, Stat. 2, c. 8, §13 (1713), continued by 5 Geo. 1, c. 7 (1718), provided that all “collectors, surveyors, or other inferior officers” appointed by the Commissioners of the Customs “shall be deemed to remain and continue in their respective offices and imployments, notwithstanding the death or removal of any of the commissioners of the customs who deputed and appointed such officers, until the deputations of such officers respectively shall be by the said commissioners, or any other superior authority, revoked, annulled, or made void.”
An undated MS copy of this section in JA's hand reads: “And for the better Collection of the several Rates and Duties aforesaid imposed by this Act, be it enacted and it is hereby further enacted by the Authority aforesaid, that this whole Business shall be ordered and managed, and the several Duties hereby imposed shall be caused to be levyed by the Commissioners of the Customs in England now and for the Time being, by and under the Authority and Directions of the Lord Treasurer of England or Commissioners of the Treasury for the Time being.” Adams Papers, Microfilms, Reel No. 185.
The section is part of the Act of 1673 which first imposed duties to be collected in the colonies; it served as the basis for the first organized establishment of a colonial customs service, although isolated officials had been sent out before. See A. Berriedale Keith, Constitutional History of the First British Empire 76 (Oxford, 1930); Barrow, Colonial Customs 37–41.
An undated MS copy of the relevant portion of this section in JA's hand reads: “And for the better executing the several Acts of Parliament relating to the Plantation Trade, be it enacted, that the Ld. Treasurer, Commissioners of the Treasury, and the Commissioners of the Customs in England for the Time being, shall and may constitute and appoint such and so many officers of the Customs in any City, Town, River, Port, Harbour, or Creek, of or belonging to any of the Islands Tracts of Land and Properties, when and as often as to them shall seem needfull.” Adams Papers, Microfilms, Reel No. 185.
This statute, passed in 1696, consolidated and defined the authority of the colonial customs service, gave its officers the powers and duties of their English counterparts, and facilitated placing them upon the English establishment. See Barrow, Colonial Customs 118–130, 133–136; 4 Andrews, Colonial Period
163–165, 213–215; No. 44.
Presumably a reference to 7 Geo. 3, c. 41, §3 (1767), which provided that “all deputations, and other authorities, granted by the commissioners of the customs in England before the passing of this act, or which may be granted by them before any commission or commissions shall issue in pursuance of this act, to any officer or officers acting in the said colonies or plantations, shall continue in force as fully, to all intents and purposes, as if this act had not been made, until the deputations or other authorities, so granted to such officer or officers respectively, shall be revoked, annulled, or made void, by the high treasurer of
See Auchmuty's discussion of this point, text at note Great Britain, or commissioners of the treasury for the time being.”
According to Blackstone, when Edward IV assumed the throne, “after a breach of succession that continued for three descents, and above threescore years, the distinction of a king
1 Blackstone, de jure, and a king de facto began to be first taken; in order to indemnify such as had submitted to the late establishment, and to provide for the peace of the kingdom by confirming all honors conferred, and all acts done, by those who were now called the usurpers, not tending to disherison of the rightful heir.”Commentaries
*204; see also 4 id. at *77–78; compare 1 Hale, Pleas of the Crown
101–103 notes. If Otis here referred to Blackstone's formulation, he was on treacherous ground, since the doctrine seems intended to protect those who had relied upon a usurper, but not to support the claims of the usurper against those of the rightful “heir”—in this case the de jure officers.
“The Words Sheriff, Gaoler, &c. in the Statute 13 E. 1. cap. 11. extend to all Keepers of Gaols; and therefore if one hath the keeping of a Gaol by Wrong or De facto, and suffers an Escape, he is within this Statute as much as he that has the keeping of it De Jure. 2 Inst. 381, 382.” 16 Viner, Abridgment
, tit. [Officers and] Offices, G. 3, pl. 2.
“An Action will lie against a Mayor de Facto for a false Return upon a Writ of Mandamus. Lutw. 519. Trin. 6 W. & M. in Case of Knight v. the Corporation of Wells.” 16 Viner, Abridgment
, tit. [Officers and] Offices, G. 3, pl. 3.
“Acts done by an Officer De Facto, and not De Jure, are good; As if one being created
Bishop, the former Bishop not being deprived or removed, admits one to a Benefice upon a Presentation, or collates by lapse, these are good and not avoidable. Arg. Quod Curia Concessit; for the Law favours Acts of one in a reputed Authority, and the inferior shall never inquire if his Authority be lawful. Cro. E. 699. Mich. 41 & 42 Eliz. B.R. in Case of Harris v. Jays. [In the margin:] S.P. Where the Bishop De Facto made a Lease which was confirmed by the Dean and Chapter, and after the Bishop De Jure died in the Life of the Bishop De Facto; it was resolved, that he not being lawful Bishop, and this Lease being to charge the Possessions of the Bishoprick, it is void; altho' all Judicial Acts, as Admissions, Institutions, Certificates, &c. shall be good; but not such voluntary Acts as tend to the Depauperation of the Successor, and so affirmed a Judgement given in B.R. in Ireland. Cro. J. 552, 554. Reuan Obrian & al. v. Knivan.” 16 Viner, Abridgment
, tit. [Officers and] Offices, G. 4, pl. 2.
“If one is
elected Mayor of a Corporation without being duly qualified according to a late Charter, to be chose into that Office, and after such Election he puts the Seal of the Corporation to a Bond, this Obligation is good: For by his coming into the Office by Colour of an Election, he was thereby Mayor De Facto, and all Judicial and Ministerial Acts done by him are good; and tho' the Corporation might have removed and displaced him, yet this not being done he had Power to seal the Bond. Lutw. 508. 519. Trin. 6 W. & M. Knight v. the Corporation of Wells.” 16 Viner, Abridgment
, tit. [Officers and] Offices, G. 4, pl. 3.
For this usage, see No. 55, note
That is, the parenthetical phrase in Folger's commission, note “Mr. Otis said the commission, he thought, was very Good, but that there was one Expression in it that some People Hesitated about and Repeated the Sentence in the Commission which Runs thus—and in my Behalf to seize for his Majesty's Use—Upon repeating of this Sentence Mr. Mollineux [said] 'Now Gentlemen, you see that I am Right in what I said,' and seemed to lay great Stress upon these words—in my Behalf—signifying that whatever seizures were made by Folger, he, the said Folger, was not to have the profit arising from such seizures but the Surveyor General and that the Surveyor General gave him his Commission on these terms.” Rowe,
The commissions which Temple gave to Edward Winslow as deputy collector at Plymouth and James McCobb as searcher and preventive officer at Kennebec omitted the phrase. Book of Commissions, 1677–1774, fols. 44–45, 48, M-Ar.Letters and Diary
150–151 (11 Feb. 1768).
Further documentation of this incident has not been found. Brinley was undoubtedly Col. Harvard Graduates
366–367. Since Lechmere should have obtained permission from England for his trip and the appointment of a deputy, it is possible that Brinley was acting with the sanction of the Commissioners. See Barrow, Colonial Customs 296–298.
By statute every “office or employment, civil or military,” was continued for six months after the death of the sovereign, unless revoked by the successor. 1 Anne, stat. 1, c. 8, §2 (1701). A requirement subsequently imposed by 6 Anne, c. 7, §18 (1707), that all such officers take a new oath before continuing in office was replaced by 1 Geo. 2, c. 5, §2 (1727), and id., stat. 2, c. 23, §7 (1728). See Samuel Baldwin, A Survey of the British Customs, part 2, p. 195 (London, 1770). Compare 12 Anne, stat. 2, c. 8, §13, note
Otto v. Selwin, 2 Lev. 131, 83 Eng. Rep. 483 (K.B. 1675), citing The Case of the Marshalsea, 10 Co. Rep. 68b, 77 Eng. Rep. 1027 (C.P. 1612). Otto held, per Hale, C.J., that an officer of the Court of Admiralty, pleading the warrant of that court in justification in an action of trespass and false imprisonment against him, need not plead and prove that the Admiralty had jurisdiction of the original cause. The Case of the Marshalsea had held that the warrant of a court lacking jurisdiction of the cause was not a defense in an action of false imprisonment; Hale distinguished that case on the ground that the lack of jurisdiction had there appeared (it was in fact conceded arguendo). Otis seems to be citing Otto for the proposition that when the actions of an officer are justified by a document regular on its face, the burden of proving an underlying irregularity lies with the opposing party.
Note
That is, the officers appointed by the English Customs Commissioners are entitled to all the fees without competition from officers appointed by other sources. See text and note 4 above.
The MS breaks off here and the reference is unexplained. The office of Surveyor and Searcher is described in note 1 above. George Lyde, the incumbent, had accompanied Hallowell in reseizing the Cornelia and was a party to the action. See text at note 17 above.
Timothy Folger vs. Sloop Cornelia and Eighteen Casks Tea. On this information the Advocate general in behalf of the King intervened.
In determining this cause, I shall consider the matters on each side of the question principally relied on by the Gentlemen in their arguments and much in the same order as proposed.
The Advocate general in behalf of the King urged, that none but the Officers of the Customs could seize in cases similar to this, relying on the 14 Car. 2d. for this point.2 That the informer, who in the information, calls himself searcher and preventive Officer in the Island of Nantuckett never was an Officer of the Customs, and that granting he was, his Authority ceased on the commissioners of the Customs in North America entering upon the Execution of their Office. Because the Informer was authorized and appointed, as by an authenticated copy of his Commission exhibited by the said advocate appears, by the 167Honble. John Temple Esqr. late surveyor general of the northern district; whose office was entirely vacated and made void by the said commissioners executing their said Office, which was prior to the seizure set fourth in said Information. That the three known principal officers of the Customs in the port of Boston, of which the said island of Nantuckett is a member, had seized and informed against the same vessel and goods which information was pending in this Court; wherefore on his Majesty's behalf said advocate prayed that the libel of the said informer might be dismissed unless he could shew his authority to seize.
To all which it was answer'd by James Otis and John Adams Esqrs. advocates for the informer, first that he was not held to produce any commission to authorize him to make or hold said seizure, because it was sufficient to prove himself a reputed Officer of the Customs, by acting as such at the time of seizing. To support which the statutes of the 6 Geo. 1 and the 11. of the same reign were produced.3 Secondly, that considering the exhibits, proofs and Advocate's concession in the case, it evidently appeared, the Informer was either an Officer of the Customs de facto, or de jure or both. If the latter a right of seizing must undoubtedly have been in him. If only the informer,4 yet even by the rules of the common law, without the aid of the Statutes, it was sufficient. Thirdly, that the Informer was an Officer de jure by his commission from the said late surveyor general, produced by the advocate and by the Court allowed to be filed as evidence and lastly, that the Authority granted by said commission did not cease on the Surveyor generals office being vacated by the appointment of the Commissioners of the customs in North America, and their Executing their office. To prove which the 12. Ann. and the 7. Geo. 3. were cited and relied on.5
The force and operation of the two statutes of Geo. 1. must be considered in order to determine whether the same comprehend the present case, Those were formed to guard the revenue, by protecting the real Officers thereof against certain inconveniences. A construction therefore of the statutes different from that design or exceeding such Inconveniences must be erroneous: In the first act by the perview which immediately relates to the section under consideration it clearly appears, the mischiefs intended to be remedied were, the trouble and expence Officers were necessarily at in procuring the condemnation of 168Goods seized, and in consequence thereof the enacting part enables officers to give proof of their actually exercising and being imployed and entrusted in an Office, without producing evidence to prove the names of the Commissioners to any Commission to be their hand writing. But there are only two Cases in which such proof of reputation is Admissible, First, when the trial is between the Officer seizing and the Claimer. Secondly when the Officer is prosecuted for any thing done by virtue of any act relating to duties. If therefore the present dispute is not such an instance as is pointed out by the Act, it cannot be within it Because this Act, which is enlarged by the 11. Geo. 1. but for the same purposes, gives a remedy not known at common law, in particular cases. Therefore by the rules of law relative to the constructions of Acts, such remedies cannot be extended to alter the Common law in any others than those particular instances mentioned in the Act. This rule is founded on the deference always justly paid to the common law by the Judges in construing statutes and by which the common law is preserved from Constructive innovations. It is indisputable that the present controversy is not a Trial between an Officer and Claimer, or a civil action or other process brought against an Officer by a Subject, but a litigation founded on the intervention of the Kings Advocate in behalf of his Majesty, The point is now between the King and one who claims to be an Officer of the Customs under his Majesty: therefore to extend the said Acts or either of them to such a case would be both absurd and illegal. Illegal, because by so construing the Act, the King himself would be thereby affected, tho' not mentioned therein, and tho' considering the nature and tendency of the Act, he cannot consistently with the rules of law, be constructively included. Absurd because it would be foreclosing his Majesty from whom all the powers of Officers mediately or immediately flow from trying whether one asserting to be his Officer was so, and notwithstanding the admission of such an enquiry, it appears to me, the letter as well as the spirit of the Acts will be preserved entire; and so no reason presents why it should not be granted. I am sensible, it is objected that the trial now is founded on an information, and relates to a seizure, and from thence concluded to be within the express words of the Acts. To this it may be answered, that those Acts are not to be construed by the different modes of prosecution therein enumerated, nor by the general expressions pointing out the causes of such prosecutions; but by the mischeifs intended to be remedied, and not guarded against by the common law, and therefore, tho' a Case in one sense may depend on a seizure and information, yet if none of the mischeifs mentioned 169in and designed to be redressed by said acts, attend it, the law will not adjudge such a Case to be within the Acts. It is an established rule that tho' a Case be within the letter of an Act, if not within the real meaning thereof, it cannot be included therein, A construction different from that I have given would make said Acts productive of a very great repugnancy, by forcing the same to operate in favour of persons, without an enquiry whether they were or were not properly Officers of the Crown to the prejudice of others duly appointed, for the protection and advantage of whom said statutes most undoubtedly were designed. And lastly, that by the duly authenticated Copy of the Informers commission exhibited by the Advocate, evidence appears to the contrary of the informers being an Officer of right at the time of making the seizure, as far as a negative can. The reservation in the Acts made in these Words, “unless by other Evidence the contrary shall be made to appear,” entitles even a claimer, a fortiori his Majesty, to prove if he can; that the Officer seizing, notwithstanding his being reputed and acting as such, really was not, otherwise the statutes are justly chargable with one of the greatest irregularities known in the law, in preferring the lowest kind of evidence to the highest. To support the words “other evidence to the contrary” intend to confine the evidence to a persons being an Officer de facto, in exclusion of an enquiry if one de jure, must render the Acts totally ridiculous. Because when once the fact of his being an Officer de facto is established by positive evidence, it must be impossible negatively to prove the contrary. In short, tho' the acts give great releif to Officers even claimers are not by force thereof left remediless, nor do the Acts place persons proving their reputation as Officers absolutely beyond the inspection and reach of law. But the burthen of Strict legal proof is by force of the same acts removed from the Officer, in certain Cases; and if the Claimer or prosecutor would avail himself against the proof resulting from reputation, he is obliged to produce legal evidence, that notwithstanding such reputation the person seizing either was never commissioned, or if he was, the authority thereby conferred was determined, or he had exceeded his Authority. Therefore I do adjudge and decree, that said Acts are not sufficient to authorize the informer to prosecute said information without shewing a further right so to do.
I shall next determine what influence the rules of the common law touching Officers de facto ought to have in this cause.
Those rules appear to me to be calculated only to make such as presume to act as Marshall or Mayor &c. without being completely qualified, answerable for their own misconduct, in cases where the Interest 170of others is concerned, but not to extend to such as immediately tend to their own private advantage.6 They are institutions to prevent mischeifs happening to some, through an undue exercise of power by others, rather than to give a sanction to it for the sole benefit of the Actors. It is but just that he who undertakes as a publick Officer the Execution of any thing without a full Authority for so doing, and of which he is to be the judge in the first instance, and does it in such a manner as renders another a sufferer, should be adjudged accountable therefor. But It by no means follows that such an undertaker should advance his own Interest by his own wrong Act, in direct opposition to the legal Officer: Therefore the law cases above alluded to and the one in trial materially differ from each other. Also the cases of the parson and bishop appear to me not applicable to the present dispute, for the same and other reasons.7 In both the latter instances their acts which may be considered as judicial, are allowed good for the benefit of others their inferiours in the law sense and so not obliged to know the legality of the induction of the parson, or the deprivation or removal of the Bishop; Where a Bishop de facto does an act which charges the possession of the bishoprick, as a lease of lands, it is void.8 The true reason of which I take to be, he shall not by any act advance his own private interest, and thereby deprive an Officer de jure of his. This case is more applicable to the present dispute than any of the others. And indeed without observing this rule all distinction between Officers de facto and de jure must cease. But to close this subject the very making of the acts9 evidently shew that at common law, Officers of the Customs could not be sufficiently guarded by proving themselves such de facto: then consequently none of those rules abstractedly were able to support the doings of such an Officer, even when the contest was not between him and the King, but a Claimer. So that tho' by the Exhibits in the case it is both proved and granted that the informer was 171an Officer de facto, yet as the Statutes allow of proof being made against his being one de jure, and the common law does not avail him in this point, I am next to enquire what proof there is of his being the latter.
The proof of this point arises out of his Commission and the Authority of the late surveyor general to grant the same. It is certain the informer was by said commission created, if any thing, either a New Officer, or deputy surveyor general. It could not be a deputation as searcher and preventive Officer, if there had been any such Office known, because the surveyor general could not make a deputy to another Officer, that power being lodged only in the principal. As to the first, considering that the Island of Nantuckett is a member of the port of Boston, it is necessary to examine whether the late surveyor general had any authority, without positive orders or instructions from the Commissioners of the Customs in England under the direction of the Commissioners of the treasury to create new Officers, when there were proper Officers of the port duly commissioned and acting; and secondly if not, whether by the said Commission the Informer was deputy surveyor general.
As the statute did confine the appointment of the Officers of the Customs to the Lord treasurer Commissioners of the treasury and Commissioners of the Customs in England for the time being,10 it is impossible that any surveyor general could legally appoint or create new Offices and Officers without an authority for so doing from those who by the law had that power. It was said in the argument, that the late surveyor general had equal authority with the Commissioners of the Customs in England but it was neither attempted or possible to be proved on an inspection of his instructions as far as relate to this enquiery and consideration thereof.11 I do not perceive any thing which 172proves or has a tendency to prove a power in him to create new Offices or Officers. His power of suspending for misbehavior, and appointing others in the places of the persons so suspended or of such as decease by no means can be extended to create new officers ad libitum. The former is a contracted and limitted power, and was usually lodged with all surveyor generals by the Commissioners of the Customs, and founded in necessity. The latter comprehends almost all the powers of both the Commissioners of the treasury and Customs and it is not to be supposed they ever delegated such Authority to any person whatsoever, there being neither necessity or law for so doing. It was urged in favor of such appointments of the Surveyor generals, that great inconveniences will follow if they are not adjudged valid, as many have been made, particularly one at Plymouth a member of this port.12 If the fact is so, of which there is no evidence excepting the instance at Plymouth, it ought not to regulate a judgment on the validity of such appointments, because that would be Establishing a practice not founded in law, in opposition to law. Nor can I conceive it the duty of
MS, endorsed: “Copy. Decree in the Court of Admiralty at Boston in the Case of Folger &ca. vs. Sloop Cornelia, and 18 Casks of Tea.” Subscribed: “A true copy. Att[estatu]r Ez. Price D. Regr.” PRO, Treas. 1:471, fols. 152–158 (photostats in DLC:British Reproductions).
13 & 14 Car. 2, c. 11, §15 (1662) provided that no ship or goods were to be seized for violations of the Acts of Trade “but by the person or persons who are or shall be appointed by his majesty to manage his customs, or officers of his majesty's customs for the time being, or such other person or persons as shall be deputed and authorized thereunto by warrant from the lord treasurer or under-treasurer, or by special commission from his majesty under the great or privy seal.”
Seizures by others were to be void. This section was presumably made applicable in the colonies by 7 & 8 Will. 3, c. 22, §7 (1696). It was interpreted strictly in England. See Hoon, English Customs
271–272.
Apparently an inadvertence for “former.”
A reference to the cases from Viner cited by Otis, notes Abridgment it is also stated, “He who occupies as Marshal in B.R. be he Officer of Right or by Tort, shall be charged with the Escapes. Br. Escape, pl. 18, cites 39 H. 6. 33.” 16 Viner, Abridgment
, tit. [Officers and] Offices, G. 3, pl. 1.
The case of the parson is evidently the following passage in Viner not taken down by JA: “Where an
Abbot or Parson is inducted erroneously, and makes a Grant or Obligation, and after is deprived or dereigned for Precontract or such like, this shall bind; because he was an Abbot or Parson in Possession, but a Usurper who usurps before Installation, or Induction, or Presentation, where another Abbot or Parson is Rightfully in Possession, or if one enters, and occupies in the Time of Vacation without any Election or Presentation, the Deed of such is void. Br. Non est Factum, pl. 3, cites 9 H. 6. 32.” 16 Viner, Abridgment
, tit. [Officers and] Offices, G. 4, pl. 1.
See note
7 & 8 Will. 3, c. 22, §11 (1696), note
Temple's instructions and commission have unfortunately not been found. For the powers of surveyors general, see note 2 above.
When Temple's predecessor, Thomas Lechmere, suspended Benjamin Barons in 1759 (prior to his dismissal in 1761, note Procs.
432–433. This material does not seem to have been put in evidence, perhaps because it dealt with the office of collector, rather than that of preventive officer.
See Temple's appointments, including that of Edward Winslow at Plymouth, in note 6 above. The “inconvenience” was simple enough to remedy. The Commissioners confirmed Winslow in his office and either confirmed or replaced other Temple appointees. Samuel Proctor was appointed to Folger's place, but was forced from the island in the fall of 1768. PRO, Treas. 1:471, fols. 461–463; Boston News-Letter, 11 Aug. 1768, p. 2, col. 1; Minutes of the Commissioners, 15 March 1768, 7 Bowdoin-Temple MSS 151–153, MHi; Massachusetts Gazette, 3 Nov. 1768, p. 1, col. 3. Although it does not seem to have been put in evidence, Temple's predecessors had been appointing officers at Nantucket since at least 1740, a fact which was relied on in this case by both sides in their memorials to the Treasury. Folger claimed that it showed the antiquity of the practice; the Commissioners pointed out that the English Commissioners had often rejected such appointments. See Wolkins, “Boston Customs District,” 58 MHS, Procs.
432–433; PRO, Treas. 1:471, fols. 363–365, 366–367; Minutes of Commissioners, 15 March 1768, 7 Bowdoin-Temple MSS 152–153, MHi.
12 Anne, Stat. 2, c. 8, §13 (1713), note