quired the commissioner to administer an oath to persons suspected of making short entries. Four years later the business of the customs had increased to such a degree that the commissioner was required to "attend in the office from nine to twelve of the clock in the forenoon, and from two to five of the clock in the afternoon "1 -a practice thereafter substantially continued. It was not till seventeen years later that the statement of the duties of the commissioner took the form which it afterward retained, by the additional requirement that the commissioner keep "a particular accompt of every vessel, so that the dutys, impost and tunnage arising on the said vessel may appear," and that he exhibit his books not only to the treasurer and receiver-general, but to "any other person or persons whom this court shall appoint." 112 The first intimation of a definition of the duties of subordinate customs officers is contained in that clause of the act of June 8th-20th, 1694-5,3 which grants to the single commissioner, then first provided for, the power " to grant them warrants" for assisting in "the well ordering and managing the affairs relating to said office and the better to prevent frauds." An administrative advance was made when the act of December 9th-10th, 1698, directed the commissioner "to grant warrants to such deputy-receivers for their said place, and to collect and receive the imposts for all wines, liquors, goods and merchandizes that shall be imported into such port, and to render the accompts thereof, and pay in the same to the said commissioner and receiver." No penalties for non-feasance or mal-teasance were provided for either commissioners or subordinates. $61. Powers of Commissioners. It is in the powers vested in the customs officers in the pro 1 1701-22, c. 16. 2 1718-19, c. 12. 3 1694-'5, c. I. • 1698, c. 17. secution of their duties that the greatest number of important changes was made. It would be difficult to find a better example of what elsewhere in this essay has been called automatic legislation, by which is meant legislation requiring certain things to be done and providing no means for enforcing the requirement, than the act of June 24th-28th, 1692-3.1 By this first customs act of the second charter no special power whatever was given to the commissioners themselves looking toward the enforcement of the provisions of the act; and the power vested by the act in "such as are impowred or improved by the commissioners," or in "the informer or discoverer," "to search, according to law, all manner of houses, cellars and warehouses," for goods believed to have been smuggled, was hedged about by the requirement that such search should "be made in the day-time, and within the space of one month after the offense supposed to have been committed," "with one constable or more," and "by warrant from the lieutenant-governor or any two justices of the peace within this province (to that purpose first obtained)." §62. Their Powers Increased. The first section of “An Act for the Better Collecting the Impost and Excise, and Preventing Frauds,"" provided "that such officer or officers as are or shall be impowered and appointed by the commissioners for impost and excise, shall have power and are hereby authorized to enter on board any ship or vessel, there to make search, or to attend the unloading of any such ship or vessel, the better to prevent fraud, and to secure the true payment of the duties, so by act or acts for or relating to the impost and excise is imposed." By the act of June 11th-22d, 1695-6, the commissioner was empowered to "sue for and recover, in any of his majestie's court of record, or before any justice of the peace, where the matter is not 1 1692-'3, c. 5. 2 1693, c. 5. above his cognizeance, any sum or sums of money that are or shall grow due according to agreement made for any of the aforesaid duties, where the party or parties with whom such agreement is or may be made, shall neglect or refuse to pay the same." The strongly reactionary law of December 9th10th, 1698,1 brought about by the large decrease in the income from customs since the passage of the impost act of the previous June, substituted in place of all the above the simple power of the commissioner "to sue the master of any ship or vessel for the impost or duty for so much of the lading of wines, liquors, goods, wares, and merchandizes imported therein according to the manifest by him to be given upon oath as aforesaid, or shall remain not entered, and the duty or impost thereof not paid;" and even this provision was dropped after the next act. The preamble of the act of March 27th-29th, 1703,* is significant of the inefficiency of the customs administration under the then existing law. Yet the act was superseded in three months, and neither the section conferring upon the commissioners "the same power in the searching for, seizing, securing and prosecuting for goods imported and not duely entered as are by law granted to the commissioners of excise," nor that authorizing them to "procure boats or vessels, and when need shall be, hire men to go in them," was afterward repeated. The unusual development which, after building up for the customs officers such ample powers, left them at the end of eleven years in nearly the same condition in which they were at the beginning, is due to the fact that for the first five years, the period during which the powers of the 1 1698, c. 17. 2 1698, c. 16. 3 1700-'I, C. 7. 4 1702-23, c. I. "For the more effectual securing of the payment of the several duties of impost, tunnage of shipping, and excise, arising within this province, according to the rates set in and by the acts and laws now in force for granting and continuing of the same, for the avoiding of disputes, and for direction to the collectors and receivers of the said duties." customs officers were enlarged the most, the commissioners of impost were also commissioners of excise-a department of the public service in which larger administrative powers have generally been found necessary;-and it is likewise due to the fact that, after the organization of a separate excise department in 1697, the duties of the customs officers were correspondingly lighter. As a matter of fact, the phraseology of former laws, conferring identical powers upon the commissioners of both departments, was left unaltered, through sheer inertia, for several years after their separation took place. $63. Commodities Taxed. The policy of provincial Massachusetts in the selection of commodities for indirect taxation, both imposts and excises, was simple, uniform and correct. Broadly stated, it was to exempt altogether the necessities of life and to tax the conveniences only lightly, leaving the burden of the indirect taxation. to be borne by the luxuries; and among luxuries choosing for the heaviest duties those the use of which was oftenest carried to harmful excess. From the first customs act of the second charter, salt, cotton-wool, provisions and all commodities produced in New England were specifically exempted from all duties. Not only were the commodities produced in New England almost exclusively necessities, but the formation of a sort of customs union between the New England colonies was quite in accord with the growing idea of a solidarity of interests between them, which, from the first, Massachusetts had been foremost in recognizing. That the act of September 8th, 1721-2, which levied heavy specific and ad valorem duties upon certain commodities imported into Massachusetts from New Hampshire and upon others exported from Massachusetts into New Hampshire, was no voluntary departure from this policy, is evident from a con 1 1692-23, c. 5. 2 1721-22, c. 5. sideration of the facts in the case as recited in the preamble to the act in question. The selection for these duties, intended to be prohibitive, of luxuries coming from New Hampshire and necessities going to it, was consistent with the avowed purpose of the act to retaliate severely upon the offending government and in the end brake up its exclusiveness. $64. English Goods. There was, however, one country the productions of which. Massachusetts, with shrewd judgment, wished to utilize as the source of a considerable and certain revenue without injuring the trade. From the initiatory customs act of the province" all goods not specifically taxed or exempted were subjected to a small ad valorem import duty. By the act of June 18th19th, 1697, a discrimination was made against English goods by imposing upon them a duty more than twice that to which other non-enumerated goods were subjected. And although this rate was reduced one-half for the next three years, the higher rate was then restored, to be maintained uniformly until 1719. A prolonged and bitter controversy took place between. the two branches of the general court in that year upon the question of disregarding the king's recent instructions to the governor to withhold his consent from all bills imposing duties upon English goods. The representatives contended pertinaciously and acrimoniously not only for the continuance of a revenue which, in their judgment, the province could not then relinquish without serious inconvenience, but (being 1 "Whereas, the government of New Hampshire do exact and take two shillings a thousand for every thousand of boards brought down the river commonly called Piscataqua River and transported into this province (though the trees out of which the boards are made grow upon lands within this province, and are cut at mills in the county of York), altho' the inhabitants of this government have equal right with the inhabitants of the province of New Hampshire, to pass up and down the aforesaid river, by grant and purchase; which exaction is therefore altogether unjust and oppressive." 2 1692-23, c. 5. 3 1697, c. 3. |