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are not so full and complete as the great changes in Revenue laws passed since that period now require; and having, withal, been informed by some of the Collectors that, from some cause, the forms that have been heretofore prescribed have in some instances been mislaid or lost, and in some cases, when changes of Collectors had taken place, the forms and instructions had not been handed over by the former incumbents to their successors in office, it has been deemed expedient to make out a new set of such forms and instructions as the present laws require; which, accordingly, has been prepared by this Department, a copy of which I transmit herewith for your government,”' &c. Here the evidence is enforced, in strong terms, of the liability of those forms to require renewal, under changes of legislation, as well as on account of being mislaid, lost, or abstracted by ex-Collectors, which by this time must have become equally applicable to the forms then issued, being about twenty-nine years ago.
But the greatest evil that besets and frustrates the efficient accounting for the Revenue of the Customs, as evinced by the repeated and increasing complaints of the Department, in Circular remonstrances to those officers, is the dominant and pervading non-observance of those Instructions by Collectors and Naval Officers, and particularly the neglect of the latter to keep the books and forms relating thereto, as above mentioned. This fact will be sufficiently substantiated by a single extract from the Comptroller's Circular of the 15th December, 1838, addressed to Naval Officers, which intimates the like remissness of that important class of officers, from the date of their first instructions of the 15th December, 1789, to the date of the Circular of December, 1838, here quoted, which says: “There being reason to believe that, in some of the ports of the United States, there have been omissions, on the part of the Naval Officers, in the performance of some of their official duties, deemned by this Department of the highest importance, it has become necessary to direct the earnest attention of the officers holding this responsible station in the public service to the Laws and the regulations of this Department designating their several duties. By Circular from this office, dated the 18th December, 1789, Naval Officers were directed to keep ‘Impost Books' and “Tonnage Books,' which, as they were explicitly advised, would enable them to examine and check the Collectors' quarterly accounts of duties and tonnage received by them. The act of the 2d March, 1799, delares that the Naval Officer shall receive copies of all manifests and entries, and shall, together with the Collector, estimate the duties on all goods, wares, and merchandise subject to duty, (and no duties shall be received without such estimate ,) and shall keep a separate record thereof, and shall countersign all permits, clearances, certificates, debentures, and other documents to be granted by the Collector. He shall also examine the Collector's abstracts of duties, and other accounts of receipts, bonds, and expenditures, and, if found right, shall certify the same.'
“Had the books designated above been kept, and the quarterly examinations and comparisons been duly made by the Naval Officers, it is scarcely possible that the defalcation in the accounts of the late Collector at New York, Samuel Swartwout, could have taken place, or so long escaped detection.
“It is required by this Department, that information be communicated, at what ports the Impost and Tonnage books have not been kept by Naval Officers, and what portion, if any, of the duties defined in the foregoing quotation from the law have been omitted, and by what authority,” &c.; &c.
It appears, then, that the salutary check on the possible remissness and default of Collectors, designed by the law to be found in the duties assigned to the Naval Officers, has proved to be inadequate to that important object; to remedy which defect, the readiest conceivable mode may possibly be, that of instituting a “ General Inspection of the Customs,” to be operative at suitable intervals, under the direction of the Secretary of the Treasury, somewhat upon the plan of the office of “Inspector General of the Army," provided for the periodical inspection of the whole military establishment of the United States.
Chapter IV gives, in four Sections, “the System of Incidental Revenue, derived from various sources, as recovered by suit." Chapter V gives, in appropriate Sections, “the System of Incidental Revenue, as derived from Loans, Treasury notes, and other evidences of debt incurred therefor,”' in anticipation of regular Revenue. Chapter VI gives, “ihe System of keeping the Revenue,” &c., &c.;-to the details of which three Chapters, the want of time or space precludes any particular reference, however important their respective subjects. Chapter VII gives, in appropriate Sections, and smaller divisions, “The SYSTEM OF DISBURSEMENTS OF THE REVENUE BY THE TREASURER, AND AGENTS OR SUB-AGENTS OF THE GOVERNMENT: whether of Moneys actually deposited in the Treasury to the credit of the Treasurer, or of Moneys constructively in the Treasury, or of Moneys that have never been in the Treasury." of the transcendant interest that attaches to the subjects of this Chapter I shall say nothing, but only refer briefly to the evidences of irregularities and almost total neglect of officers of the Customs in executing the Laws and Instructions relative to their “salaries, fees, and emoluments, and their contingent expenses of office,'' as exhibited in Section 2 and subdivision (e.) Under this bead the history of these "Emolument Accounts” is condensed, from 1789 to a very recent date, showing not only the early neglects to execute the Laws and Instructions relating to those accounts, but the final abandonment of them almost entirely by those officers.
Passing over the earlier irregularities in this respect, which, of course, in part, if not in chief, gave occasion to the exactions of the act of the 20 March, 1799, respecting the compensation of officers of the Customis,' I shall make a few extracts from the Laws on this subject, and then turn to some of the prominent passages in the Instructions and Remonstrances of the Department respecting the general delinquency of the officers in this matter, marked, nevertheless, as it is, with the solicitude of Congress and of the Department, through all time.
The 2d section of the act of the 2d March, 1799, says: “It shall be the duty of the respective Collectors, Naval Officers, and Surveyors, to keep accurate accounts of all fees and official emoluments received by them; also, of all expenditures, particularizing their expenditures for rent, fuel, stationery, and clerk hire, and to transmit annually, within forty days after the last day of December, an account, as aforesaid, verified on oath or affirmation, to the Comptroller of the Treasury, who shall annually lay an abstract of the same before Congress; and, if any Collector, Naval Officer, or Surveyor, shall omit or neglect to keep an account as afore. said, or to transmit the same, verified as aforesaid, he shall forfeit and pay a sum, not exceeding five hundred dollars, for the use of the United States."
It is equally certain that it was chiefly owing to the irregularities of those officers, in complying with those demands—necessarily embarrassing the Comptroller's annual report to Congress of the abstracts of those accounts—that the act of the 7th May, 1822, further to establish the compensation of officers of the Customs,” so modified the above passage of the act of 1799, as to require (Section 12) "that such accounts, as well of expenses as emoluments, shall be rendered on oath or affirmation, at such times and in such forms, and shall be supported by such proofs, as shall be prescribed by the Secretary of the Treasury; and (that) all such accounts shall be settled at the Treasury, like other public accounts.” And, after prescribing various regulations and rates of salaries, fees, and emoluments of those officers, and their accounting for the excess over the prescribed maximum, the 17th section says, "that if any person, employed in any duties in relation to the collection of the Revenue, shall accept or receive any fee, reward, or compensation, other than that allowed by law, for any service he may perform for any person, in making an entry or clearance, or preparing any papers to be used or kept in the Custom-house, such person shall be removed from office, and shall, moreover, on conviction thereof, pay a fine not exceeding five hundred dollars."
Now, although the 11th section of the aforesaid act of 7th May, 1822, says “that the preceding provisions (meaning those relating to the limitation or maximum of emoluments) shall not extend to fines, penalties, and forfeitures, or the distribution thereof,” yet the "act of the 3d March, 1841, making appropriation for the civil and diplomatic expenditures of the Government,” requires “Collectors, Naval Officers, and Surveyors, in addition to the accounts heretofore required of them, to render a quarterly account of all fines, penalties, and forfeitures received by them,” (together with certain other emoluments, not before included in the provisions prescribing a maximum,) and prescribes a maximum, in these cases, of $2,000 to each or either of them, "over and above which the excess in all cases shall be paid into the Treasury."
Nevertheless—and wonderful as it may seem to those who are uninformed in these and the like evasions of public duty, without being held to a strict account, or even invoking peremptory correction—the Secretary of the Treasury has not been able to show, in his annual report of “Public Accounts,” the results of the settlements of any of these emolument accounts since 1840. But it may afford some satisfaction to show a few of the efforts made by the Department (perhaps not as energetic as they might have been) to effect a faithful execution of the provisions of the laws relating to these accounts—which, though extremely ill-executed from the first, and thereby exciting much Legislative and Executive attention, could not be prevented from dwindling into nothing, while the Laws and the Instructions were making continual efforts to be more stringent. By adverting to the Synopsis of Instructions, Chapter VII, Sec. 2, letter (en) "on the salaries, fees, and emolu. ments of officers of the Customs'' --where the history of those accounts may be seen from the beginning, in 1789—it will be perceived that, on the passage of the act of the 20 March, 1799, above referred to, the Comptroller issued his Circular of the 27th May, 1799, in which he says to those officers: “The compensation and emoluments of officers of the Customs are again modified by the act of 1799, '10 establish the compensation of officers employed in the collection of duties,' &c. An exact account of these emoluments (heretofore neg. lected under former laws) is required hereafter to be rigidly executed and transmitted to the Department.” On the 31st July, 1802, the Comptroller again "reminds Collectors and other officers of their non-compliance with the Law and Instructions, to transmit their ‘Annual Statements' of their official emoluments and expenditures, for which neglect the penalty will be rigidly exacted,”' &c. On the 16th May, 1809, the Comptroller's Circular of that date admonishes these officers, saying: “Double commissions, for collecting the duties arising on the same importation or cargo, are not allowable under any pretence whatever," &c. On the 13th May, 1828, the Comptroller’3 Circular of that date complains that “the returns or statements of the emolument accounts of fifty-five Collectors, (for the year 1827,) are neglected or not transmitted, incurring the penalty of $500 each,”' &c. Circular of the 12th December, 1832, says: “The Secretary of the Treasury having received information that Collectors exact fees not authorized by law, for sundry formalities required in licensing vessels for the fisheries, &c., the practice is henceforth interdicted,”' &c. This last complaint is reiterated by the Comptroller's Circular of the 8th July, 1834. And furthermore, although the Comptroller's Circular of the 28th May, 1822, goes into very minute details, and prescribes a great many forms of returns to be made, in execution of the act of the 7th May, 1822, in relation to “Emolument Accounts," not only did the Law and Instructions become virtually a dead letter in 1840, and continue so ever since, in spite of the supplementary provision of the act of 1841, above quoted, as may be seen by referring to the letter of the Register to the Secretary of the Treasury, prefixed to each annual report of "Public Accounts" since that date, but the form of the book of registry for those accounts, called the “EMOLUMENT REGISTER," kept in the Comptroller's office, as prescribed under the act of 1799, has remained the same, without conforming to the changes required by subsequent enactments---perhaps because the returns of those accounts have ever been unsatisfactory. How far the efforts understood to be now making in the Department to correct those irregularities may be more successful than heretofore, through a period of more than half a century, remains to be proved by the results.
The Eighth and concluding CuAPTER of this Synopsis relates to Secretaries' Circular Instructions on miscellaneous subjects connected with the General Land Office, which, with few exceptions, found no place in “Birchard's Compilation,” made and published by order of the Senate. Of these exclusions, accidental or otherwise, there is only one (that of the 6th August, 1934, article 1753) which need be particularly referred to, and that only on account of its anomalous character, in conferring on Receivers of public money the extraordinary powers of disbursing agents, to pay claims they may suppose to be just, and to have such payments covered by Treasury warrants, as vouchers, beyond or behind which the accounting officers could not inquire. This Circular is given in full in Chapter VII, article 1418, p. 187. It probably arose out of the enibarrassed condition of the Deposite system, and other causes, beginning about that time to wear an aggravated form. Though I have seen no evidence of these Instructions having been rescinded, they certainly have become obsolete or inoperative with the emergency.
This Synopsis, or classified abstract of Treasury Instructions and Decisions in execution of the Revenue Laws, having been brought down to the end of 1844 only, the sequel of Instructions, in full, for 1845, 1846, 1847, has been inserted in the Appendix No. V, as a "new series.” For a due notice of the illustrative designs prefixed to this work, reference must be made to a POSTSCRIPT at the end of the volume.
OUTLINE OF THE REVENUE, OR FINANCIAL SYSTEM IN GENERAL.
Section 1.-Construction of the Revenue clause of the Constitution, and of the Revenue laws; and definitions of Country, America, &c., in a commercial and political sense.
Section 2.-Improvement of the Revenue System, sought by repeated efforts, from 1789 to 1838, with other important tributaries thereto.
Section 3.—The supervision of the business of the Customs, as the principal branch of the Revenue System, delegated, in chief, to the Comptroller of the Treasury; with certain reservations to the Secretary of the Treasury, and other exceptions incidentally devolving on other officers ; also sundry notices respecting the collection, safe-keeping, and disbursement of the Revenue, and other financial operations connected therewith.
Construction of the Revenue clause of the Constitution and of the Revenue laws; and
definitions of Country, America, fc., in a commercial and political sense.
1. The Secretary of the Treasury states, in a circular to Collectors of the Customs, the Construction of the
Revenue clause of the bearing to be had on the Collection law, by the adoption of the federal Constitution by the Constitution, in reState of North Carolina, "in repealing the 39th section of that law, as to North Carolina;” pealing revenue laws
in certain cases. and to sustain this opinion, he refers to that clause of the Constitution which says: “All duties, imposts, and excises shall be uniform throughout the United States:" Secretary's circular 27th January, 1790. Vol. 1, page 43.
2. According to the aforesaid construction of the 27th January, 1790, the Secretary of the Treasury decides, that the Ships and Vessels of North Carolina, and of Rhode Island, were, by their adoption of the Constitution, (which virtually repealed the 39th section of the Collection law as to both,) entitled to have their alien tonnage, paid anterior thereto, refunded: (1.) S’s cir. 25th June, 1792; V.1, p. 113.
(1.) It must be manifest on the slightest reflection, that this retroactive decision was altogether gratuitous ; and that, to give it any verisimilitude of principle, it should have been general instead of being confined to the isolated matter of refunding to North Carolina and Rhode Island the tonnage duties which their merchant vessels had paid anterior to their adoption of the Constitution. To have borne the
3. The right of the Secretary of the Treasury to settle the construction of the Revenue laws, in relation to all cases of doubt, is minutely set forth by him, to counteract the contrary impression entertained by certain Collectors: S's cir. 20th July, 1792; V. 1, p. 114.
Explanatory 4. The construction of the Revenue laws, in cases of ambiguity, is not so desirable from preferable in cases of ambiguity;
the Treasury Department, as are "explanatory acts” from the Legislature: Comptroller's cir. 22d March, 1793; V.1, p. 43.
No usage can alter he law.
5. “No usage of a Collector can prevail against the obvious terms of the law: it may be his misfortune, or the misfortune of the public, if he misinterprets the law, but he cannot alter it;"' opinion of Judge Story: C''s cir. 27th September, 1819; V. 2, p. 78.
When does a law 6. The operation of a law, in general, when no express provision is made therefor, should commence to operate? be construed to commence on the day of its passage: C's cir. 31st Aug.,1813; V.1, p. 277.
Cases of partial repeal of its operation
7. The repeal of the legal charges on the issuing of Passports and Clearances, does not exonerate masters of vessels bound to foreign ports, from the obligation of taking out Passports and Clearances: C's cir. 25th March, 1831, V.3, p. 122.
8. The repeal of tonnage duties by act of 31st May, 1831, (as hereby decided,) does (?) exonerate the proper officer from making admeasurement of foreign vessels on their entry into ports of the United States: C's cir. 16th March, 1833; V. 3, p. 371.
Definition of Country by the Secretary of the Treasury.
9. The term “Country,” as used in the 1st section of the Navigation act of 1st March, 1817, embraces all the possessions of a State or Nation, however widely separated, which are subject to the same supreme executive and legislative authority: S's cir. 29th September, 1817; V.2, p. 78.
stamp of uniformity, as a principle of justice to all the parties concerned, it should have required those States, on the other hand, to refund to the United States the duties they had levied on their foreign importations during the same period, deducting the expenses of collection, &c.; which, if it had been practicable, and within the sphere of the Secretary's action, would have involved those two States in a debt of sufficient magnitude to have been peremptorily resisted by them. Moreover, they, and the United States, should have been placed in the same position in all other respects as if N. C. and R. I. had adopted the Constitution coevally with its going into operation in the rest of the Union, which would have been utterly impracticable. The provision of the clause of the Constitution above referred to, to sustain the above decision, could only have required a due observance in regard to N. C. and R. I., from the date of their adoption of that instrument; and any partial retroaction in that regard was well calculated to involve consequences that could not easily be remedied. But it will not be inferred that the father of the Revenue System of the United States was insensible of the just exceptions that might be taken to this decision. In this case it cannot be presumed that there was in fact any error of judgment in the gigantic mind that awarded the gratuity. It was but à small matter to a magnanimous heart, to concede to the importunities of the claimants this penny boon, in consideration of that great political consummation, the unanimous adoption of the federal Constitution, with however ill grace its tardy recognition was made by those two States. To deal rigidly with them was contrary to the spirit of that era of good feeling; otherwise the United States might then have required Rhode Island to adopt at once a republican form of State government, and have thus, fortunately, been the means of anticipating that violent party struggle by which she at last spontaneously set aside her Colonial charter of the King of England.
( 2.) Is not this in conflict with another provision of law, which requires a quarterly report of the entry of foreign tonnage ? and likewise with the parallel case, No. 7, which decision seems based on a principle that should govern both cases? It will be perceived, in the course of these pages, that the like instances of contradictory instructions and decisions do but two frequently occur, to entitle those official opinions and regulations to be considered as remarkable exceptions to that general proposition—as old as the moral world—which denies infallibility to the human judgment. But, upon the whole, the good keeping that generally prevails in these adjudications, emanating from various minds through a long series of years, is entitled to lay far greater claims to our admiration, than are their discrepancies entitled to excite our surprise.