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 honorable 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 encumbered 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 condemnation 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 success. 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 circumstances 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 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 said 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 forfeitures, 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 hereinbefore set forth; and the remainder thereof to the officers of such cutter, to be divided among them agreeably to their pay: 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 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 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, 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, after satifying himself that by such examination he would incur no forfeiture. The statement of Robert Bentham, esq., (hereto annexed,) the co-partner of the then district attorney, (who died shortly after,) explains the matter fully and satisfactorily. The question, in this aspect of the case, then, is, whether the mere mistake as to the legal effect of the examination of the collector, committed by the counsel, shall be suffered to deprive him of his legal rights, and to transfer them to the United States.

It appears to the committee that Mr. Chapman might well have been excused for falling into an error on this subject, (if it was one,) when the district attorney, to whom he had a right to look up for advice and protection—a man, too, of great eminence în his profession-was not aware of that error. In this point of view, and on this single ground, the committee would be well satisfied that the government ought not to retain and convert to its own use a large sum of money forfeited under such circumstances. The committee are aware that in the adverse reports hereto annexed, the ground is taken of a want of merit on the

part of this claimant, which, in the opinion of those who made these reports, deprived him of any just claim on the liberality of Congress. But on examining these reports, and comparing them with the facts as presented in the case, it will appear that there are some misapprehensions both as to the law and the facts, which it becomes necessary here to correct. It is intimated that as the Diana was seized and libelled by Lieutenant Mark, and not by the collector, the latter was negligent in the performance of his duty; and having given evidence in favor of the claimants, and not of the United States, he can have no just claim for any of the forfeiture, which was intended only to reward those who are "instrumental in detecting frauds." Now, the law does not require that the seizure should be made by the collector, in order to entitle him to a portion of the forfeiture. In all cases of fines, penalties and forfeitures, for the violation of the revenue laws, he is entitled to his share, whether he is the informer or not. It may be true that this addition to the stated compensation of the collector is intended to excite general vigilance in the performance of his duties; and it will doubtless be found a sufficient stimulus for that purpose. But the claim for a share of the forfeiture, in any particular case, is not made dependent on the conduct of the officer in that case.

There does not appear to be any just ground, however, even for the suspicion of any neglect of duty on the part of the collector in this case; and when it is considered that he had an interest in the condemnation of the cargo to upwards of $13,000, a sum probably greatly exceeding all the compensation ever received by him for many years service as collector of the port of Georgetown, it can hardly be conceived that he could have been guilty of wilful neglect in prosecuting such a claim. But the truth is that the Diana was seized by Lieutenant Mark immediately after crossing the bar of Georgetown, and the collector was never called upon or required by the duties of his office to do more than visit the vessel immediately on her arrival in the harbor, and to put a custom-house officer on board, which was done. [See the statement of L. Joseph, annexed.]

It is true that the collector did testify that the Diana appeared to be in distress on her arrival in the harbor of Georgetown, and this is the sum and substance of his testimony, which so far proved only what was fully established by the other witnesses. The decree of the circuit court (which is also annexed) shows that the vessel actually was in distress, and that the cargo was condemned, after a thorough examination, on facts disclosed, for the first time, at the trial, and which could not possibly be known to the collector. From the annexed certificate from the friends and neighbors of Mr. Chapman, as well as from other information received by the committee, they are perfectly satisfied that he was a very thorough, pious, and most scrupulous man, who, throughout the whole of this affair, as on every other occasion of his life, acted in a faithful and conscientious manner. His conduct, as detailed by Mr. Gadsden, offers a striking illustration of this. Though the district attorney made no objection, and, indeed, was ready to give his consent to Mr. Chapman's receiving his portion of the forfeiture in this case, and though advised by his own counsel that no application to the court was necessary, yet, having heard it doubted whether he had not for

feited his claim, so great was "his scrupulosity and integrity," that he insisted that the question should be submitted to the judge. The committee would be slow to believe that a man acting on such elevated principles could have been guilty of any neglect of duty, and they can find nothing in the testimony to justify the suspicion.

On the whole case the committee are of opinion that it must be considered as doubtful whether, according to the strictest construction of the law, Thomas Chapman did actually incur a forfeiture in this case; but if such forfeiture was incurred, it being clear that it was incurred innocently, and that he was misled by the opinion of the district attorney, it does not become the United States to take advantage of that mistake, by converting to their own use a sum of money which rightfully belonged to one of their officers, who is proved to have served them for many years with the utmost fidelity. Influenced by these views, the committee report a bill for the relief of the legal representative of Thomas Chapman, deceased, late collector of the port of Georgetown, in the State of South Carolina.

Lizar Joseph's Affidavit.

STATE OF SOUTH CAROLINA, District of Georgetown.

Personally appeared before me Lizar Joseph, for many years employed by the collectors of this district and port as inspector, &c., who, being duly sworn, deposeth that Thomas Chapman, deceased, did, in pursuance of his duty as collector of this port, take poseession of, and put on board the Swedish brig Diana, immediately upon her arrival in his district under charge of the revenue cutter, John Lewis Poyas, as inspector, and there continued him until the said brig was about discharging her cargo, when he, the said deponent, as he further sweareth, took charge and superintended the unlading of the said brig, having been, till then, unable to undertake the said charge. And the said deponent further saith, that the late Thomas Chapman was not in that, or any other case, guilty of any neglect of duty, but always discharged it in an upright and exemplary manner. And he saith further, that the said Thomas Chapman, deceased, late collector of this port, was improperly and unjustly made an evidence in the trial of the aforesaid Swedish brig Diana, believing, as he most conscientiously does, his testimony was taken through the mistaken cunning of Lieutenant fark, of the said cutter, who, this deponent rests satisfied, supposed his own share of the cargo would be increased by causing the collector to forfeit his.

Sworn before me, this 8th day of January, 1822.

L. JOSEPH.

JACOB WAYNE, J. P.