prior probability

Order #135 is dated 2 or 3 Dec. 1784 [*] and is signed by Adam Smith (top signature), Basil Cochrane (middle), and David Reid (bottom). Like the other letters in my sample, this order is addressed to the Principal Officers (Collector and Comptroller) at the Port of Inverness and involves a routine accounting matter:

“Having received your Letter of the 27th instant, inclosing an Account of Disbursements, amounting to One Pound fifteen Shillings & Fourpence [£1 15s. 4d.], by David Anderson Tidesman at Ferrintosh for boarding Vessels arriving in the Roads of that Creek & Dingwall, in the quarter ended the 10th of October last, and desiring our directions with regard thereto; We agree to your paying the said Account, to be placed to Incidents, annexing an Extract of this Order and a proper Receipt as Vouchers, — but you are to take Notice that when you transmit Accounts for payment, your opinion should be given as to the reasonableness or unreasonableness of the demand made, which you are to observe in future.”

This order refers to one “David Anderson Tidesman at Ferrintosh.” In 18th-century British customs administration, a Tidesman (or “Tide-waiter“; see generally Hoon 1968) was an outdoor customs enforcement officer assigned to watch, board, and inspect incoming merchant vessels as they arrived in coastal waters, roadsteads, or harbors. (See Muskett 1997, p. 127.) Tidesmen were thus the frontline defense against maritime smuggling. Upon a ship’s arrival, they boarded the vessel to prevent cargo from being illicitly offloaded at night or thrown overboard prior to formal customs entry and payment of duties. Some Tidesmen were permanent, salaried officers. Others, however, like William Macintosh in Order #134 or David Anderson here, were hired to supplement the regular staff during periods of heavy shipping traffic or localized enforcement operations and paid on a per-diem basis. (See Muskett 1997, pp. 127-128.)

Ferrintosh (also spelled Ferintosh) is a remote peninsula located below the Cromarty Firth in Ross-shire, i.e. the County of Ross in the Highlands of Scotland (see the top map pictured below), situated just across the firth from Dingwall. (The Cromarty Firth contains a sheltered stretch of deep water where incoming coastal and foreign ships anchored while waiting for favorable tides, berth space, or customs clearance. See the middle map below.) As it happens, Ferrintosh was also the site of the first legal distillery in Scotland, and it accounted for two-thirds of the whisky produced in the country by the late 1760s. (See Wilson 2018, available here or here.)

In 1689, the Scottish Parliament had granted the owner of the Ferrintosh distillery an exemption in perpetuity to distill grain into whisky duty-free. This exemption from the excise duty, however, was repealed when Parliament enacted the Duties on Spirits Act or “Wash Act” (24 Geo. 3. Sess. 2. c. 46) on 19 August 1784 (see here or here, for example; see also here; scroll down to “Duties on Spirits Act 1784”), i.e. when David Anderson, the Tidesman at Ferrintosh, was boarding vessels in that region. This statutory change thus brought Ferrintosh under the revenue oversight of customs officers like David Anderson.

In this order, David Anderson had requested a reimbursement in the amount of £1 15s. 4d, or about 152 pounds today (see here), for expenses he incurred while monitoring and boarding vessels during the quarter ending 10 October 1784. Although the board of customs approves this payment under the “Incidents” account, the board warns Anderson’s superiors, the principal officers (Collector and Comptroller) at the Port of Inverness, that in the future, whenever they forward subordinate officers’ disbursement claims, they must also state whether the disbursement is reasonable or not.

[*] Although the day is cut off from my copy of the document, I can make out the letters “nd” or “rd”, which leads me to believe this letter is dated 2 or 3 Dec. 1784.

The next document in my sample of Adam Smith letters is Order #134, which is dated __ Dec. 1784 (the day is cut off from my copy of this document) and is signed by Adam Smith (top signature), Basil Cochrane (middle), and David Reid (bottom). This order involves a disputed bounty on contraband gin (“Geneva”) as well as a series of decade-old expenditures made to three customs officers at the Port of Inverness: [*]

“The Solicitor having by his Memorial of the 29th of September 1770, laid before us a Precognition [**] taken at Dornoch in December 1771, which had been put into his hands by the late Collector at your Port, relative to the Seizure of Geneva [Dutch gin] mentioned in Return No. 762 dated 11 June 1772, the right to which was disputed by Mr. George Houston then Landsurveyor, and Mr. Gilchrist Supervisor of Excise;

“We direct you to call upon the then Collector to say in whose hands the Officer’s Share of the said Geneva is, which by the Report of the Register of Seizures of the 24th, appears to Amount to Twenty nine Pounds four Shillings & eight Pence [£9 4s. 8d.], & if there is no Receipt by the Seizer, it must be in the Hands of the late Collector. In which Case you are to ask him what he paid for taking the Precognitions upon this Occasion, and to whom, reporting the result for our Consideration —

“The Solicitor having at the same time laid before us a Note of Various expenditures by the Officers at Inverness of which the following is a Copy.

“April 10, 1772, The following are Accounts of Money which have been advanced carrying on the publick service, viz.

“1. William Macintosh Extra Tide at Inverness his Account of Expence in Seizing a parcel of Tea &c. at Lochbroom upon 3 August 1771, Lodged y.e Same in y.e Warehouse — £50 5s. 4½d. [Fifty Pounds five Shillings & four Pence]

“2. Mr. Macintosh the Comptroller’s Account of the Expence laid out by him in taking a Precognition at Dornoch respecting a Seizure of Spirits — 18 1s

“3. Mr. Houstoun the Land Surveyor’s Receipt on Mr. Greig’s Letter desiring more money on that same Affair — 15

“4. Mr. Houstoun’s Receipt for Cash advanced him 26 June 1770 to defray the Expence of Seizing & Securing the Sloop Mary of Elgin — 15

“5. Mr. Houstoun & Mr. McKillops receipts for Money advanced on the Seizure of the Ships Margaret & Betty — 12. 2s

“[Total] — £110 8s. 4½d.

“We direct you to enquire at the late Collector by what Authority he laid out the Fifty Pounds five Shillings & four Pence halfpenny for the Sea Seizure at Lochbroom mentioned in the 1st. Article; What became of that Seizure, & how the Charges came not to be paid to him; And also to explain Article 4th. of Fifteen Pounds advanced to Mr. Houstoun. The Result of which you are likewise to report for our Consideration.” (all indentations in the original)

What in the Devil is going on here? Who is the solicitor? And why did it take so many years for the board of customs to address the solicitor’s memorial? I shall address these points in turn:

What is going on here?

The board is investigating a series of financial transactions dating back to 1770–1772, which had been advanced out of public funds or claimed by local customs officers. The board’s financial investigation can be broken down into three main parts as follows:

Disputed Seizure Bounty (£29 4s. 8d.): In June 1772, a seizure of Geneva (Dutch gin) was made. Both Mr. George Houstoun (Land Surveyor) and Mr. Gilchrist (Supervisor of Excise) claimed the official “Officer’s Share” of the forfeiture. The Board discovers that this £29 4s. 8d. bounty was never recorded as paid to the seizers and demands to know if the late Collector pocketed or held the money, and what was spent on local legal depositions (Precognitions).

Unexplained Expenses (£50 5s. 4½d.): In August 1771, William Macintosh (an Extra Tidesman at Inverness) incurred a massive £50 expense while seizing a parcel of tea at Lochbroom. The board demands to know by what legal authority the former Collector advanced this large sum, what actually happened to the seized tea, and why the charges remained unliquidated.

Advances and Operational Expenses (£45 4s. 6d.): The board orders the current Inverness officers to audit several other advances made between 1770 and 1772 to Land Surveyor George Houstoun for taking legal depositions at Dornoch, seizing spirits, and securing smuggling vessels (the Sloop Mary of Elgin and the Ship Margaret of Bo’ness).

Who is the Solicitor?

In the context of the 18th-century British customs administration, “The Solicitor” refers to the chief standing legal advisor and prosecutor for the Board of Customs in Scotland. Among his main duties, he led court prosecutions in the Court of Exchequer, drafted legal opinions on statutory enforcement, reviewed precognitions (preliminary witness testimonies taken in criminal proceedings), and audited claims regarding contested seizures and legal fees. (See, e.g., Hoon 1968, pp. 94-96.) In this case, the the Solicitor had submitted a formal legal brief (“Memorial”) dated 29 September 1770, along with depositions taken at Dornoch in December 1771.

Why did it take the board of customs so many years to address the solicitor’s memorial?

There is a 12- to 14-year delay between the Solicitor’s initial 1770 Memorial, the additional expenditures incurred in 1771-72, and the issuance of this order in December of 1784. Why did it take so long for the board to clear up these decade-old expenditures and disputed officer bounties?

The order refers to “the late Collector”, so my best guess is that the expenditures described in this order may have fallen through the bureaucratic cracks after the death of the previous port Collector. In addition, perhaps the dispute over the bounty allocations for the 1772 seizure of Dutch gin (“Geneva”) may have stalled because of the jurisdictional dispute between two different branches of tax collectors: Customs (Land Surveyor Houstoun) and Excise (Supervisor Gilchrist). [***] Or perhaps the board of customs came under political pressure to clean up its outstanding accounts and eliminate uncollected debts after the enactment of William Pitt the Younger’s Smuggling Act of 1784 (24 Geo. 3 sess. 2 c. 47) in August 1784.

Whatever the reason for this delay, it looks like Adam Smith and his fellow commissioners on the Board of Customs conducted a sweeping retrospective audit of unresolved outport ledgers and must have found the above-listed discrepancies in the course of their audit.

[*] Inverness is a remote region in the Scottish Highlands in the north of Scotland. (See map pictured above.)

[**] The term “Precognition” refers to preliminary witness testimonies taken in criminal proceedings. Cf. Black’s Law Dictionary, available here: “In Scotch practice. Preliminary examination. The investigation of a criminal case, preliminary to committing the accused for trial.”

[***] Customs and excise were not amalgamated into one service until 1909. (See Hoon 1968, p. xv.) On the differences between excise and customs, see generally Ashworth 2003.

Nota bene: Here are the previous installments — parts 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, and 12a — in my multi-part series on Adam Smith’s day-to-day duties as a commissioner of the Board of Customs of Scotland.

Order #132 is dated __ Nov. 1784 (the day is cut off from my copy of this document) and is signed by Adam Smith (top signature), Basil Cochrane (middle), and James Buchanan (bottom). In this order, the Board of Customs formally terminates a local customs officer, a land surveyor by the name of Anderson, from the customs service and orders his superiors to confiscate (“call in”) his official Deputation, i.e. his statutory warrant of authority:

“Having received your Letter of the 23d. instant [i.e. Nov. 23], enclosing the answers of Mr. Robt. Anderson Landsurveyor at your Port, to a Charge given him by our Order, on your Letter of the 16th. of last Month [Oct. 16], — We upon considering the same, hereby dismiss the said Anderson as incorrigible and unfit to be trusted any longer in the Revenue, and direct you to call in his Deputation to be transmitted to us to be cancelled.”

This order should thus be read in conjunction with the previous order in my sample (Order #130), which noted “certain Inaccuracies” in Anderson’s records and requested his superiors to forward their final report in this matter to the commissioners in Edinburgh. The rapid progression from Order #130 to Order #132 is especially worth noting: the board is not only strict about record-keeping–it cannot tolerate discrepancies in a land surveyor’s baseline seizure books, since accurate records were indispensable for establishing probable cause in the Court of Exchequer, calculating Crown revenue splits, and ensuring legal condemnation of confiscated contraband–it is also swift.

More generally, this order also tells us something about Adam Smith’s day-to-day institutional role in adjudicating disciplinary matters and in combatting corruption in the customs service. Simply put, “Adam Smith the Commissioner” is a far cry from the apocryphal picture of “Adam Smith the absent-minded Professor” that has been painted by Smith’s biographers. [*] During his tenure as a Commissioner of Customs (1778–1790), Smith was a no-nonsense civil servant who took his job seriously and who held outport officials accountable to strict legal and accounting standards.

[*] On Smith’s savviness even during his tenure as a professor in Glasgow, see Salim Rashid’s recent article “Young Adam Smith: Worldly, Worldly-Wise, and Street-Smart,” Independent Review, Vol. 29, No. 4 (2025), pp. 661-688, available here.

Nota bene: Here are the previous ten installments — parts 1, 2, 3, 4, 5, 6, 7, 8, 9, and 10 — in my multi-part series on Adam Smith’s day-to-day duties as a commissioner of the Board of Customs of Scotland. Endnotes are below the fold.

Order #127 is dated __ Nov. 1784 (the day is cut off) and is signed by the same three commissioners (and in the same sequence) who signed the previous two orders (#126 and #125): David Reid (top signature), Adam Smith (middle), and James Edgar (bottom). This third Reid-Smith-Edgar order illustrates a certain level of inter-agency cooperation between excise and customs officials and reads as follows:

“Having received your Letter of the 21st of last Month, enclosing Return of Seizure No. 290 by Mr. Alexander Fullarton Supervisor of Excise for Eleven dozen of Bottled Wine—and also Return No. 291 by Messrs. Robert Anderson Land Surveyor and Archibald Chisholm Landwaiter, for two pipes of Portugal red Wine; — We have ordered the said two Returns to be registered, — a Third only of the latter to be allowed, — and we direct you to inform us whether any Cattle or Carriages were employed in the removal of the wine contained in Return No. 290.” [1]

This order thus refers to two separate “returns” or reports of “seizure”: one effectuated by an excise officer; the other completed by two customs officers. [2] In addition, by issuing the directive “We have ordered the said two Returns to be registered”, the board officially authorizes the legal process for the formal condemnation and forfeiture of these two government seizures of contraband wine to commence in the Court of Exchequer. These seizures also illustrate two important aspects of 18th-century anti-smuggling statutes.

One is the broad scope of these laws: any cattle, carts, or carriages used to transport contraband were subject to forfeiture, along with the illicit goods themselves. [3] That is why, with respect to one of the seizures, consisting of some 132 bottles (11 dozen) of contraband wine (“Return of Seizure No. 290”), the board orders a follow-up audit (“whether any Cattle or Carriages were employed in the removal of the wine”) to determine whether any additional valuable property can be seized for the Crown’s account.

The other is the direct financial incentives of customs officers to confiscate contraband, for under 18th-century smuggling laws, [5] the proceeds from forfeited goods were divided between the Crown (or the Exchequer) and the seizing officers and informers, and according to one historian of the Customs service (Hoon 1968), these rewards were a lucrative source of income for many revenue officers:

“The emolument which comprised the officers shares of the produce of seizures gave the strongest impetus to activity against violation of customs laws. By 12 Charles II, c. 4, half the produce of a seizure was to go to the Crown and half to the seizing officer; but the amount varied between one third and nine tenths according to the act of Parliament governing the particular kinds of goods seized, or according to the discretion of the Lords of the Treasury or the Customs Commissioners. If an officer was lucky, a seizure might yield him a neat fortune which would amount to more than he could earn in several years of ordinary labor. The jealousy in search and Seizure testifies vividly to the stimulative value of such rewards.” (Hoon 1968, p. 219, footnote omitted)

That is why, regarding the other seizure, involving two pipes (large casks) of Port wine (“Return No. 291”), [4] the commissioners cap the officers’ financial reward from the proceeds of the seizure: “a Third only of the latter to be allowed.” The one-third cap on the customs officers’ reward in this case doesn’t tell us the whole story, however, for as we shall see in my next two posts, these financial rewards might also tempt some revenue officers to cheat.

El Día de los Muertos is celebrated every year in Mexico from November 1 to 2.

I will resume my “Adam Smith, Commissioner” series on Monday. In the meantime, did you know that Halloween actually refers to the solemn Roman Catholic feast of All Hallows’ Day: a holy day to mark the beginning of Allhallowtide, a time to remember the dead, including martyrs, saints, and all faithful departed Christians? Bonus link: “Ten Spooky Classical Music Favorites for Halloween” by Terez Rose, a ballet and classical music critic who blogs regularly “The Classical Girl“. Below, for example, is #9: Sergei Rachmaninoff’s “Isle of the Dead”, Op. 29, performed by the Russian National Orchestra.

Nota bene: Here are the previous installments — parts 1, 2, 3, 4, 5, 6, 7, 8, and 9 — in my multi-part series on Adam Smith’s day-to-day duties as a commissioner of the Board of Customs of Scotland. End notes are below the fold.

The next document in my Adam Smith sample is Order #126, which is dated 15 November 1784 [1] and is signed by the same commissioners in the same sequence who signed the previous order in my sample (Order #125): David Reid (top signature), Adam Smith (middle), and James Edgar (bottom). To the point, this order involves a seizure of 1162 pounds of “leaf tobacco”:

“Having received your Letter of the of last Month, enclosing a Return of Seizure by Gabriel Kay Officer of Excise for 1162 lbs Leaf Tobacco; We direct you to call upon the Seizure maker to point out the particular Section of the Act 24th Geo. 3d which prescribes the Certificate, the want of which is given as the ground of Seizure, explaining the Circumstances in respect of which the Tobacco in question is thought to come within the Predicament of that Section, which you are to transmit to us for our Consideration.”

What’s going on here? In plain English, an excise officer named Gabriel Kay [2] had impounded a large shipment of leaf tobacco, [3] citing the importer’s or merchant’s failure to obtain a required “Certificate” for the shipment. This justification for the seizure certainly sounds reasonable; after all, whenever a ship arrived at her intended port, the regular procedure was for the ship’s master to present to the Collector at the port a certificate of the original payment of import duties. (See, e.g., Hoon 1968, p. 266.) But what type of permit or certificate was missing in this case, and under what law was the lack of such a certificate legal grounds for the seizure?

The order in this case refers to a specific statute (“Act 24th Geo. 3d”), and it instructs Officer Kay to “point out the particular Section” of this law that authorized him to impound the shipment of tobacco. As it happens, this law was part of the “Smuggling Act”, which was first enacted in 1736 (9 Geo. 2 c. 35) and subsequently amended as recently as 1779 (19 Geo. 3 c. 69) and 1784 (24 Geo. 3 sess. 2 c. 47). [4] (As an aside, it’s worth noting that the most recent amendments to the Smuggling Act had occurred less than three months previously: 19 August 1784. See here; scroll down to “Smuggling Act 1784.”)

In summary, the Smuggling Act was enacted to suppress the contraband trade in goods like tea, spirits, and tobacco along the coasts of Great Britain. Among other things, it extended the authority of the Crown to seize suspicious vessels found “hovering” up to four leagues (i.e. 12 miles) off the British coast to prevent smugglers from offloading cargo just outside territorial waters. It also made it a capital crime to shoot at, fire upon, or damage any King’s ship or boat, or to shoot at naval, customs, or excise officers performing their duties within four leagues of the coast. And it also placed strict size, build, and armament limits on small craft and vessels frequently used by smugglers, making unauthorized fast boats liable to forfeiture.

But the 1784 amendments to the Smuggling Act said nothing about certificates. This order thus highlights the board’s attention to detail and commitment to due process. Before it approves the seizure in this case or authorizes any legal condemnation proceedings in the Court of Exchequer, the commissioners need to verify whether this seizure had a firm statutory basis under the recently-enacted legislation. To this end, the board instructs the relevant outport officials to require Officer Kay to cite the exact section of the governing statute (“Act 24th Geo. 3d”) that authorizes the removal certificate in this case. The officer is ordered to “point out” precisely how and why the circumstances of this tobacco shipment fall within the “Predicament” (the specific statutory forfeiture clause) of the new law.

As a result, it’s back to drawing board, so to speak: the local port officials will now have to obtain Kay’s formal written explanation and statutory citation and forward it back to the Board of Customs for another round of formal review. (One final aside: did this shipment of tobacco originate in Virginia? The vast majority of tobacco leaf grown and produced in Britain’s North American colonies during the 18th century was cultivated and harvested by enslaved African labor.)

Nota bene: Here are the previous installments — parts 1, 2, 3, 4, 5, 6, 7, and 8 — in my multi-part series on Adam Smith’s day-to-day duties as a commissioner of the Board of Customs of Scotland.

The next record in my sample of signed Adam Smith documents is Order #125, the longest and most complex Board of Customs order in my sample thus far. This document, which is dated 15 November 1784 and is signed by David Reid (top signature), Adam Smith (middle), and James Edgar (bottom), concerns a contested seizure of imported wine:

“We received your Letter of the 21st of last Month, with Proof that the sundry Parcels of Wine mentioned in our Order of the 21st of September last, are the same Wines which were imported in the Janet of Portsoy [*], and for which Duties were paid at your Port, with the Answers of the Officers who granted Certificates for the removal thereof, and of those who neglected to give proper Information to you; And having considered the same [i.e. the letter dated 21 October 1784], we direct you to report such Observations as occur to you, as well on the Facts stated in the Affidavits produced to establish the Wines to be the same that were entered and charged with the Duties, as on the Particulars set forth in the Answers transmitted from the several Officers concerned with respect to their conduct in this Affair.

“You are also to report the exact Dimensions and the full & ullage [**] Contents with the Marks and numbers of the Casks of Wine seized by you, and to transmit Copy of the Report made by John Brodie Master of the said Ship Janet, Copies of the Warrant granted for the delivery of the Wine out [of] that Vessel, entered by John McPherson and by John Gordon and Alexander Forsyth; together with one of the Landwaiters’ Blue Books kept on the discharge of the Janet.” (indentation in the original)

First off, who is the “you” in the above passages? To whom is this order addressed? Two clues are the word “Gentlemen” at the beginning of this order as well as the words “your Port” in the first sentence of this document. In brief, the orders contained in the official letter-books of the Board of Customs open with the standard salutation “Gentlemen” when the board is writing to an outport’s principal executive officers, the Collector and the Comptroller. The Collector was the official responsible for a port’s overall management, daily operations, and official correspondence with the board (see generally Elizabeth Hoon, The Organization of the English Customs System, 1696-1786 (reprint ed., 1968), available here), while the Comptroller was required to maintain an independent and parallel set of books (counter-rolls) recording every ship entry, cargo manifest, and duty payment. (See Hoon 1968, pp. xiv-xv. As an aside, the term comptroller literally means the keeper of a “counter-roll,” i.e. a duplicate set of accounts designed to check and verify the primary records. See ibid., p. xxviii n.16.)

The Collector and Comptroller in this case had brought a customs dispute over a shipment of wine to the attention of the Board of Customs in a previous communication dated 21 October 1784 (“the 21st of last Month”). From what I can tell, it looks like there was a total breakdown of communication among the local outport officials who had impounded this shipment of wine. Some of them had issued certificates of removal, but others had “neglected to give proper Information” regarding the disputed seizure of the cargo. To make matters worse, it also appears that the taxes on the wine had already been paid (“for which Duties were paid at your Port”) and thus should not have been seized.

To rectify this discrepancy, the board instructs the Collector and Comptroller to conduct a rigorous audit. Among other things, they are not only instructed to report (1) “the exact Dimensions and the full & ullage [*] Contents with the Marks and numbers of the Casks of Wine seized by you”; they are also to transmit (2) “Copy of the Report made by John Brodie Master of the said Ship Janet,” (3) “Copies of the Warrant granted for the delivery of the Wine out [of] that Vessel, entered by John McPherson and by John Gordon and Alexander Forsyth”; (4) along “with one of the Landwaiters’ Blue Books kept on the discharge of the Janet” as well as (5) “such Observations as occur to you.”

By way of background, the “land-waiters” referred to in this order were the primary inspection officers stationed at ports and wharves whose job was to oversee the unloading, inspection, and weighing or measuring of imported goods coming off merchant ships. (See generally Hoon 1968.) More importantly, the land-waiter also maintained a dockside log called the “Blue Book.” (See Hoon 1968, p. 141 & p. 228.) When a ship docked, a land-waiter was assigned to board the vessel to ensure that every single package, cask, or crate unloaded onto the quay matched the shipmaster’s official report and the merchant’s import entry, and the land-waiter would record the contents, weights, and measurements of unloaded cargo in his log, the Blue Book.

In this case, the local customs officials will have to obtain and cross-check exact copies of the ship’s manifest and the landing warrants issued to the importers of the wine (McPherson, Gordon, and Forsyth) with the original land-waiter’s Blue Book, i.e. the official log kept at dockside during the unloading of the ship’s cargo. This order thus provides a textbook example of the attention to detail demanded by Adam Smith and his fellow commissioners. Before proceeding to a formal condemnation of seized cargo, the board first insists on reconciling every physical cask against the land-waiter’s logs and the removal certifications to avoid a wrongful seizure.

[*] Portsoy is a harbor town in Aberdeenshire, Scotland, situated on the Moray Firth (see maps pictured above).s

[**] “Ullage” is the empty or unfilled headspace inside a container that sits above the liquid level. It also refers to the volume of liquid lost over time due to evaporation or leakage.

Nota bene: For reference, here are the previous installments — parts 1, 2, 3, 4, 5, 6, and 7 — in my multi-part series on Adam Smith’s day-to-day duties as a commissioner of the Board of Customs of Scotland.

In one of my previous posts (see here), I repeated the oft-quoted words of Sir Walter Scott about smugglers — “Smuggling was almost universal in Scotland, for people unaccustomed to imposts and regarding them as an unjust aggression upon their ancient liberties, made no scruple to elude them …” — and I then asked, “What scruples, if any, did Smith have in prosecuting them?” As it happens, if Order #123 is any indication, Smith and his fellow commissioners on the Board of Customs may have had quite a few such scruples. Let me explain:

To begin, Order #123 is dated 9 November 1784 and is signed by James Edgar (top signature), Adam Smith (middle), and Basil Cochrane (bottom). In addition, this order refers to the same local customs official as the previous two orders in my sample (#121 & #120): Mr. George Henderson, the tide-surveyor who was stationed at Cromarty in North East Scotland.

In summary, Henderson had suspected four local boats of illicitly offloading contraband from another vessel along the coast of Caithness, an even more remote area of Scotland located north of Cromarty (see map pictured below). Henderson wrote up a report describing his observations, and his report was forwarded to the Board of Customs on 2 November (“the 2nd Instant“). The board then issued its ruling seven days later:

“We have considered your Letter of the 2nd Instant, with a Letter from Mr. George Henderson Tide Surveyor relative to four Boats concerned in smuggling goods out of a Vessel on the Coast of Caithness; And we do not think proper at this time, and under the Circumstances of the Case, to seize the Boats, but Mr. Henderson is to continue his endeavours to come at the full knowledge of this transaction for our information.”

In other words, despite the report of illicit activity, the board orders the local customs officers to stand down: “we do not think proper at this time, and under the Circumstances of the Case, to seize the Boats“! So, instead of seizing or impounding the boats, the board instructs Henderson to continue gathering more evidence and to report back (“to come at the full knowledge of this transaction for our information”).

This non-order thus poses a minor puzzle: why was the board so reluctant to order the seizure of the four boats suspected of smuggling? It is true that government agents in 18th-century Britain were personally liable for their actions under ordinary private law. (Unlike today, British public officials who committed private wrongs or “torts” could not assert “sovereign immunity.” See generally Jennifer L. Mascott & R. Trent McCotter, “Federal Officer Suits by Common Law,” Cato Supreme Court Review, (2021-2022), pp. 111-140.) An order wrongfully impounding someone’s property could thus expose Henderson, who would be the one to carry out the board’s order, to a lawsuit for damages.

But at the same time, Parliament had enacted a special statute specifically for customs officials like Henderson, shielding them from liability when they acted with probable cause. Among other things, this law, known as the “Offences against Customs or Excise Act” (19 Geo. 2. c. 34), authorized judges in seizure trials to formally certify whether there was probable cause for the seizure. If the judge found probable cause, the statute limited the plaintiff’s recovery to the return of the seized goods (or their bare value) or a symbolic one pence (1d.) of damages, while also barring any costs of suit against the officer. (See Francis Buller, An Introduction to the Law relative to Trials at Nisi Prius, London: Strahan & Woodfall (1790), available here or here, at p. 45.) Although we have no way of knowing for sure, perhaps it was Adam Smith who counselled caution in this case.