prior probability

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.

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

The next piece of correspondence signed by Adam Smith in his official capacity as a Commissioner of Customs is Order #121, which is dated __ November 1784 (alas, the day on my copy of the document is cut off) and is signed by Adam Smith (top signature), Basil Cochrane (middle), and James Edgar (bottom). Here, the Board of Customs approves a payment in the amount of “Three pounds, nineteen shillings & eight pence” for “Incidental Charges” incurred by a local customs officer:

“Having receiv’d your Letter of the 26th of last Month [26 October 1784], inclosing an Account of Incidental Charges by Mr. George Henderson Tidesurveyor at Cromarty, amounting to Three pounds, nineteen shillings & eight pence; — We agree to your paying the said Account to be plac’d to Incidents, annexing this order and proper receipts as vouchers.”

What were these “Incidental Charges”? What was this payment for? The authorization in this order refers to the same customs officer (Mr. George Henderson) as in the previous order of the Board of Customs (Order #120), which authorized the payment of 9d. per diem to each of Henderson’s boatmen for a 22-day deployment. Perhaps, then, this letter (#121) must be read alongside the board’s previous order, and the amount of “Three pounds, nineteen shillings & eight pence” (£3 19s. 8d.) in this order might represent the sum total of the per diem allowances referred to in the previous order.

Another clue is that the board orders both sets of expenses — i.e. the per diem allowances approved in the previous order as well as the incidental charges approved in this one — to be placed under the “Incidents” account, the designated ledger category for contingent, non-salary operational expenses. Note, however, that the instant letter was signed by Smith, Cochrane, and Edgar, while the previous order was signed by Smith, Cochrane, and Reid.

Also worth noting is that Order #121 provides an additional geographical detail about George Henderson: he is described as the tide-surveyor at Cromarty, a remote outport located on the Cromarty Firth in the Highlands region of North East Scotland. (See the maps pictured below.) As it happens, Henderson had been stationed at Cromarty since January of 1773. He was thus a seasoned customs officer, but not a blameless one, for he had been admonished by the Board of Customs on at least two or three previous occasions. (See pages 141-142 of Derek Charles Janes’s PhD thesis “The Business of Smuggling in south-east Scotland: John and David Nisbet and Their Associates c.1740–1790” (University of Exeter, 2018), available here.)

More generally, how pervasive was smuggling in Cromarty and in the Highlands more generally? By all accounts (see here, here, and here, for example), this was the golden age of smuggling, and according to another source (Cromarty History Society, n.d.), “In the 18th and early 19th centuries, Cromarty was a major port, rivalling Inverness, importing hemp from the Baltic to be woven in a factory by the shore as well as exporting the produce of the farms on the fertile Black Isle. Population peaked in the 1830s at over 2,000.” What fraction of this small population were smugglers, however, is hard to say.

Nota bene: This is part 6 of my multi-part series on Adam Smith’s day-to-day duties as a member of the Board of Customs of Scotland. For reference, here are parts 1 (intro), 2 (Order #109), 3 (Order #112), 4 (Order #118), and 5 (Order #119).

The sixth piece of correspondence in my sample of Smithian letters is Order #120. This order appears in a letter dated __ November 1784 (the day is cut off), and like the previous two orders (#118 and #119), it is signed by Adam Smith (top signature), Basil Cochrane (middle), and David Reid (bottom). In this letter, the three commissioners of the Board of Customs formally approve a payroll claim submitted by a local customs official at one of Scotland’s ports:

“Having receiv’d your Letter of the 26th of last Month, inclosing a Memorial from Mr. Geo. Henderson Tidesurveyor at your Port, stating that in consequence of the liberty given him by our Order of the 12th of February 1783, he had [lounged] with the King’s boat & crew, during the different periods therein mention’d, making in all twenty two days, when he had advice of some Smuggl’s being expected on the Coast, and praying an Allowance to the Boatmen during that period. — We agree to your Paying the Boatmen at the rate of ninepence p. diem each for the respective Periods mention’d making in all twenty two days, and to place the amount to Incidents, annexing this order and proper discharges as vouchers.”

In summary, a tide-surveyor was a water-guard officer responsible for boarding incoming vessels, inspecting cargoes, and patrolling coastal waters to intercept smugglers. (See generally Elizabeth E. Hoon, The Organization of the English Customs System, 1696-1786 (1968), available here.) The local tide-surveyor mentioned in this letter, Mr. George Henderson, acting under prior legal authority granted to him by an order of the Board of Customs dated 12 February 1783, had deployed a vessel and hired several boatmen (“the King’s boat & crew”) to conduct coastal surveillance after receiving some intelligence that smugglers were planning to land contraband on the coast.

(By way of additional background, the term “King’s boat” in this order refers to an official, government-owned service vessel assigned to a regional port for local customs enforcement and other “water-guard” activities, including anti-smuggling operations. See generally the index entry for “water-guard” in Hoon 1968. See also chapters 6, 7, and 12 of E. Keble Chatterton, King’s Cutters and Smugglers, 1700-1855 (1912), available here. In this particular anti-smuggling operation, Henderson and his crew spent a cumulative total of 22 days on active patrol.)

After completing this special anti-smuggling operation, Henderson had formally requested an extra daily allowance for his boat crew, and upon his request, the Board of Customs agrees to authorize the payment of ninepence (9d) per day to each of Henderson’s boatmen for each of the 22 days on patrol, i.e. 0.75 shillings per day for a total of 16 shillings and 6 pence (16s 6d) or £1.98 (over £155 in today money; see here) for each boatman. In addition, the board orders the total amount paid out to be charged to the Incidents account of Henderson’s local customs/port office. (“Incidents” was the budget category designated for contingent, non-salary operational expenses. See, e.g., Hoon 1968, p. 145.) To clear this expenditure, the local port officer must attach the board’s order (Letter #120), along with the boatmen’s signed receipts (“discharges as vouchers“).

Also, like the previous order in my sample (Order #119, which authorized the payment of £2 for a Bath stove), this letter (#120) demonstrates the strict and rigid administrative centralization of 18th-century revenue collection. An extra daily allowance of ninepence per man could not simply be disbursed on the spot; it required writing up a formal petition (“Memorial”), sending it to the Board of Customs in Edinburgh for review, and the approval/signature of three commissioners. But what makes this letter even more fascinating is that it presents another facet of Adam Smith’s work, for it not only shows us a scrupulous bureaucrat meticulously auditing public expenditures; it also reveals an establishment figure who is deeply involved in the micro-level logistics of Britain’s mercantilist trade policy, a Smith who is managing frontline anti-smuggling operations!

But how pervasive was smuggling in Scotland? In the oft-quoted words of Sir Walter Scott (1771-1832) in his 1818 novel The Heart of Midlothian, “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 whenever it was possible to do so.” For his part, what scruples, if any, did Smith have in prosecuting them?

Congratulations to the University of Central Florida: our college football team defeated #2 BYU yesterday in double OT, the biggest win in our school’s athletic history. (If you know, you know!) Added bonus: BYU had been undefeated until yesterday.