1st Session.

No. 78.

IN SENATE OF THE UNITED STATES.

FEBRUARY 27, 1850.

Submitted, and ordered to be printed.

Mr. BERRIEN made the following

REPORT:

[To accompany bill S. No. 133.]

The Committee on the Judiciary, to whom was referred the petition of James Chapman, administrator of Thomas Chapman, ask leave to submit the following report:

This claim has been heretofore submitted to Congress, and various reports have been made upon it. From these the committee select the following report, made at the first session of the twenty-second Congress, which they adopt, and accordingly report a bill.

IN SENATE OF THE UNITED STATES-April 24, 1832.

The Committee on the Judiciary, to whom was referred the petition of Thomas Chapman, report:

That the petitioner represents that he is the executor of Thomas Chapman, late of Georgetown, South Carolina, deceased.

"That the said Thomas Chapman was in his lifetime collector of the customs for Georgetown district, in the State of South Carolina, and continued faithfully to discharge the duties of said office to the period of his death, which took place on the 28th day of November, anno Domini 1820. That some time in February, 1814, while the said Thomas Chap. man was in the discharge of all the duties of his office, a certain Swedish brig, called the Diana, alleged to be in distress, and attempting to enter the port of Georgetown, was seized by Lieutenant Mark, of the United States cutter Boxer, and brought to anchor in said harbor, where the said Thomas Chapman visited her as collector, and put a revenue officer on board to take charge of the cargo; that the said brig was accordingly libelled, on the charge preferred against her by Lieutenant Mark, of a violation of the non-intercourse act, and her cargo condemned to be forfeited, which sentence of condemnation was, in February, 1818, finally confirmed by the Supreme Court of the United States. The said vessel's cargo having been condemned as aforesaid, the said Thomas Chapman

was by the laws of the United States entitled, as collector, to one-fourth part of the net proceeds.

"That while the said libel was pending before the court, the captain of the Diana, acting for the owners, thought proper to have the said Thomas Chapman examined as a witness in the case; that his counsel accordingly prepared interrogatories, to which the district attorney put in cross-interrogatories, and transmitted the same in the commission, directed to certain gentlemen in Georgetown, requiring them to take the answers of the said Thomas Chapman thereto. Being thus called upon to testify by a commission under the seal of the court, sanctioned as it seemed to be by the district attorney-the official adviser of all United States officersthe said Thomas Chapman did not suppose that any loss or damage could be incurred by him in consequence of his giving the evidence thus required of him. The said Thomas Chapman was not aware in doing this act he was giving up any legal right whatever; he knew the district at torney too well to suspect that he would lead him into error, or that he would even suffer him unadvisedly to commit himself, and abandon his rights. The district attorney, indeed, subsequently declared that he had no idea at the time that the examination of said Thomas Chapman as a witness on the part of the owners could jeopard his claim, and even to the end maintained the opinion that such was not the law. On hear ing that the cargo had been finally condemned, the said Thomas Chapman caused a petition to be sent on to the court at Charleston, praying that his fourth part of the said cargo should be paid over to him according to law. On this petition being presented to the court by a legal friend of the said Thomas Chapman, the district attorney expressed his surprise, and stated that it was unnecessary to present such a petition, when the act directs expressly that one-half should be paid over to the collector for the use of himself and the United States. The legal cc-partner of the district attorney, acting for him in his absence, had also declared that the district attorney was aware of the examination of the said Thomas Chapman, but that he had nothing to apprehend from it; and his right to a fourth of the condemned cargo was certain. Fortified by these opinions, and conscious that he had done nothing to merit a forfeiture, it was with great astonishment and mortification that the said Thomas Chapman was finally informed that his honor Judge Johnson had, on the second day of July, decided that he, the said Thomas Chapman, had forfeited his fourth part of the proceeds, and that he had ordered the same to be paid into the branch bank of the United States, to the credit of the government, which was accordingly done. The ground of this decision was, that the said Thomas Chapman had forfeited his proportion on account of his having been examined as a witness in the case. By this decision the United States has received into its treasury the sum of $13,457 55, which had justly belonged to the said Thomas Chapman, on the alleged ground that he had by his own act forfeited his right to it.

"That this decision operated with peculiar hardship on the said Thomas Chapman. He had been induced between six and seven years before to accept the appointment of collector of the port of Georgetown under the belief that the emoluments would afford compensation for the strict attention to his duties. In this expectation he was greatly disappointed; and though he continued most assiduously and faithfully to perform his duties as collector to the day of his death, the pecuniary compensation he

received was very inconsiderable. That he nevertheless continued to hold his commission, in the hope that the time might arrive when he would be rewarded for his devotion to the interests of the government. That his proportion of the forfeited cargo of the Diana afforded for the first time the prospect of some remuneration for years of faithful service; when, unexpectedly, this was torn from him by the government for an offence which he had unconsciously committed, which consisted in his stating the truth, upon oath, when required by a writ under the seal of the court, and when his conduct was sanctioned by the district attorney, and when no idea of forfeiture existed in the minds of any of the parties."

The petitioner, therefore, prays that the sum of $13,457 55, being Thomas Chapman's proportion of the cargo of the Diana, which has been paid into the treasury of the United States, may be restored to the family of the deceased.

The committee have examined the documents submitted in support of the claim thus set up by the petitioner, and have looked into the proceedings of the court, and find all the material allegations of the petitioner fully sustained by the testimony advanced. It appears from the record now on file in the office of the clerk of the Supreme Court, and from the documents now in the hands of the committee, that the ship Diana, when about to put into the harbor of Georgetown in a state of distress, was seized in crossing the bar by Lieutenant Mark, of the United States cutter Boxer, on a charge of a violation of the non-intercourse act, on which charge she was libelled and condemned. That so soon as Thomas Chapman, the petitioner's testator, then collector of said port, heard of the seizure, he put an officer on board, and kept him there until the cargo was landed and disposed of according to the order of the court; that when the said cause was about to be tried in the federal district court at Charleston, the counsel for the claimants proposed to examine the said Thomas Chapman, in commission, as to the condition of the vessel on her arrival at the port of Georgetown, for the purpose of showing that she was actually in a state of distress. The district attorney (the late Thomas Parker, esq., a gentleman of great legal learning, and of high reputation as a sound lawyer) being of opinion, after a careful inspection of the law, that the examination of the said Chapman as a witness on the part of the claimants would not affect his claim as collector to a fourth part of the proceeds, in the event of the condemnation of the vessel or cargo, consented to put in cross-interrogatories, and he was accordingly examined as a witness, and his testimony was read at the trial. The vessel was acquitted, but the cargo was condemned; and on the application of the collector for his fourth part of the proceeds, amounting to $13,457 55, the court, the Hon. Judge Johnson presiding, made the following decretal order, viz:

"One-half goes to the United States necessarily, and the remaining fourth will also go to the United States in consequence of the collector's having been sworn as a witness; but it will go incumbered with whatever charges it would have been liable to in the hands of the collector." In consequence of this decision there was paid into the treasury of the United States the sum of $30,203 77, including the above sum of $13,457 55, being the fourth part of the collector, decreed to be forfeited as aforesaid. It appears from the statement of the late John Gadsden, esq., the successor of Mr. Parker as district attorney, that after the decree of condemna

tion was rendered in the case of the Diana, he was requested by Mr. Chapman "to submit the question to the circuit court, whether he had been deprived of his share of the penalty by being examined on the part of the claimants, &c.; that upon inquiry he ascertained that the then district attorney (Mr. Parker) considered Mr. Chapman as entitled to the penalty, and would have permitted him to receive it; that he (Mr. Gadsden) would not therefore make any question in the case until he had again consulted Mr. Chapman, who positively directed him to bring the matter before the court; that he therefore brought the subject to the view of the circuit judge, and endeavored to show that the evidence given being against and not for the penalty, did not establish any such intent as was contemplated by the act. The judge, however, was of a different opinion, though he seemed to regret that this was the legal conclusion, and intimated that it might be proper for the collector to apply to the general government." Mr. Gadsden adds, "that the determination to submit the matter to the court did not arise from any doubt about his rights, (being much disappointed at the decision,) but from his great scrupulosity and integrity. [Mr. Gadsden's statement is hereto annexed.] On this decision being made, Mr. Chapman presented a petition to Congress, praying that his portion of the cargo of the Diana, which was paid into the treasury, might be restored to him; and several petitions to the same effect have since his death been presented to both houses of Congress, but so far without suc cess. Reports [which are annexed] having heretofore been made adverse to the claim, the first question which arises in this case is, whether the examination of Thomas Chapman as a witness for the claimants did, in law, create a forfeiture of his portion of the proceeds of the Diana's cargo; and if so, whether under all the cumstances of the case he was not equitably entitled to be relieved from the forfeiture? The following are the provisions of the act of Congress on which the decision of the court in the case was founded :

"And be it further enacted, That all fines, penalties, and forfeitures recovered by virtue of this act, (and not otherwise appropriated,) shall, after deducting all proper costs and charges, be disposed of as follows: one moiety shall be for the use of the United States, and be paid into the treasury thereof by the collector receiving the same; the other moiety shall be divided be tween, and paid in equal proportions to, the collector and naval officers of the district and surveyor of the port, wherein the same shall have been incurred, or to such of the said officers as there may be in the said district; and in the districts where only one of the aforesaid officers shall have been established, the said moiety shall be given to such officer: Provided, nevertheless, That in all cases where such penalties, fines, and forfeitures shall be recovered, in pursuance of information given to such collector, by any person other than the naval officer or surveyor of the district, the one-half of such moiety shall be given to such informer, and the remainder thereof shall be disposed of between the collector, naval officer, and surveyor or surveyors, in manner aforesaid: Provided, also, That where any for feitures, fines, and penalties incurred by virtue of this act, are recovered in consequence of any information given by any officer of a revenue cutter, they shall, after deducting all proper costs and charges, be disposed of as follows: one-fourth part shall be for the use of the United States, and paid into the treasury thereof, in manner as before directed; one-fourth part for the officers of the customs, to be distributed as herein before set

forth; and the remainder thereof to the officers of such cutter, to be divided among them agreeably to their pay: And provided likewise, That whenever a seizure, condemnation, and sale of goods, wares, or merchandise, shall take place within the United States, and the value thereof shall be less than two hundred and fifty dollars, that part of the forfeiture which accrues to the United States, or so much thereof as may be necessary, shall be applied to the payment of the cost of prosecution: And be it further provided, That if any officer or other person entitled to a part or share of any of the fines, penalties, or forfeitures incurred in virtue of this act, shall be necessary as a witness on the trial for such fine, penalty, or forfeiture,' such officer or other person may be a witness upon the said trial, but in such case he shall not receive nor be entitled to any part or share of the said fine, penalty, or forfeiture; and the part or share to which he otherwise would have been entitled shall revert to the United States."

Now, on examining the provisions of this law, it does appear to the committee to be extremely questionable whether they embrace the case of Thomas Chapman. The express provision of the first part of the section is, "that one moiety of all fines, penalties, and forfeitures, &c., shall be divided between, and paid in equal proportions to, the collector and naval officers of the district and surveyor of the port wherein the same shall have been incurred, or to such of the said officers as there may be in the said district; and in the districts where only one of the aforesaid officers shall have been established, the said moiety shall be given to such officer;" and in the last proviso it is declared, "that if any of ficer or other person entitled to a part or share of any of the fines, penalties, or forfeitures incurred in virtue of this act, shall be neces sary as a witness on the trial for such fine, penalty, or forfeiture,' such officer or other person may be a witness upon the trial; but in such case he shall not receive, or be entitled to, any part or share of the said fine, penalty, or forfeiture; and the part or share to which he otherwise would have been entitled, shall revert to the United States." Now, without putting any reliance on the expression that if any of these officers "shall be necessary as a witness on the trial for such fine, penalty, or forfeiture," &c., (terms which seem to imply that the testimony contemplated was that which might be necessary to establish the forfeiture,) it seems manifestly to your committee to have been the plain intent and meaning of the act to provide against the creation of a forfeiture by the testimony of an interested witness. An officer, therefore, called upon by a claimant to swear against his interest, can hardly be considered as . coming within the spirit of the act. It is true that the judge of the circuit court decided otherwise; but as no reasons were assigned for that decision, which was given, as it appears, without full discussion, the counsel having submitted the case almost without argument, and as no appeal was made to the Supreme Court, the committee are not disposed to consider the legal question contained in the case as finally and conclusively settled. Whatever view, however, may be taken of the mere legal point, the committee cannot doubt that, according to the spirit of the law and the justice of the case, the collector should not be considered as having incurred a forfeiture in this case. His right under the law was clear, and if he forfeited that right, it was by an act ignorantly and innocently committed. If he has fallen into error, he has been led into it by the district attorney, the law officer of the United States, to whose mind the question was presented, and who only consented to suffer the collector to be examined as a witness,