statement
Qf the C\aim of Ybenezer Stevens, Austín L.
Samūs, Joshua Samūs and Robert NAorris.
--sº- -
THIs claim having become obscured through the great lapse of time
since its origin, and having labored under suspicions of being ill-founded,
merely from its long standing, though caused by the government itself, the
parties concerned feel it incumbent on them to resort to the best method
in their power for the developement of its merits on the present occasion;
and for that purpose, have thought best to have printcd, for the use of
each member of Congress, a full statement of its history and proofs. A
careful and candid examination of the same, with an early decision, and
final relief from the evils of a suspense so long endured, is what the
claimants presume they have now, at least, a right to ask and to expect.
Besides the more ancient proceedings relating to it, this claim has been
constantly pressed upon the attention of Congress for the last six ses-
sions; and during that period, has been sanctioned by seven different re-
ports of committees, and two unanimous decisions of the Senate in its
favor, to an amount which, though not equal to the sum due, would have
been accepted. Many serious injuries have resulted from the procrasti-
nation on the part of the government. A part of the testimony origin-
ally adduced in favor of the claim has been unavoidably lost; and an
obscurity caused on some points necessary for establishing the whole
amount, which it is now difficult to remove. These facts, combined with
the repeated investigation of its merits, and the several reports and deci-
sions in its favor, will, it is believed, give it additional claims to the
prompt attention of Congress, and also contribute to dissipate some of the
prejudices which the antiquity of the claim may be calculated to pro-
duce. And the claimants trust, that when the justice of their claim shall
become manifest to Congress, as they still hope to make it, some retri-
bution will be awarded them for the extreme injuries of the delay they
have so long and so undeservedly suffered; or at least a reimbursement
allowed of the heavy charges and expenses incurred through the arduous
prosecution of it, as by law is allowed between individuals; and as be-
tween government and individuals, appears equally just.
The following statement of facts and occurrences, in the order of their
dates, with a reference to the different authorities in proof of the same, is
supposed necessary to a correct understanding of the merits of the claim.
The claim originated in two contracts made in pursuance of law, be-
tween Robert Morris, Esquire, as superintendent of finance of the United
States, and certain persons now in part represented by the claimants, for
the subsistence of a part of the army of the United States, during the
year 1782—the one contract to be in force from the 1st of January,
and the other from the 1st of May until the 31st of December of that
year, and the supplies under both, to amount to about fifty thousand dol-
lars per month.
In the course of the execution of the contracts, difficulties arose from
the want of punctuality in the payments by the superintendent, occa-
sioned by a deficiency of money in the treasury for the purpose, as stated
| 2 J
by the superintendent himself, in a report he made to Congress on the
subject,
On the 15th October, 1782, the guperintendent, through considerations
arising out of the public exigencies at the the time, and for the sake of
obtaining a longer credit, withdrew the contracts without the consent of
the contractors, two months and a half before they expired, and placed
the business of supply in other hands, while the contractors were willing
and desirous to continue furnishing the supplies, if the superintendent
could make the payments, according to the contracts.
From this withdrawing of the contracts, and from the previous failure
in payments by the superintendent, the contractors sustained very heavy
damages, from which their claim on the government arose.
In a letter from the superintendent to the contractors, dated the 10th
October, 1782, he expressed great regret at the necessity which impelled
the course he took, and promised that “from regard to justice, he would
join them in every proper measure to obtain ample compensation for any
damages they may have sustained by a failure in performance of that
part of the contracts which imposed obligations on the public.”
On the 21st October, 1782, the superintendent addressed a letter to
Congress,(A)* explanatory of the causes of his measures in relation to the
contractors, and to the subsistence of the army, in which he expressly
states, “that the failure of the several states of the union in supplying
the treasury, had obliged him to suspend his payments to the contractors,
and to procure subsistence for the army by nerv contracts mith others on
tonger credit; ” and admits in substance, that the contractors had fulfilled
their engagements; that without the payments being made which were
due to them from the government, they were not liable, according to
their contracts, nor in his belief were they able, to continue furnishing
the supplies for the army : and also, that the complaints existing in the
army respecting the conduct of one of the contractors were trivial in
themselves, and with the means of payment in his hands, the uneasiness
from that quarter could easily have been removed. -
During the years '83 and '84, the claim of the contractors, arising as
above stated, was presented and discussed between them and the super-
intendent, without coming to an agreement as to the amount, and at
length, viz. on the 13t September, 1784, by mutual consent, submitted to
arbitration.(B) The arbitrators chosen commenced the investigation,
but did not make out an award within the time limited by the arbitra-
tion bonds, and the superintendent declined to extend the time, (though
earnestly solicited) by reason, as he stated, of his then going out of
office.
Thus ended the proceedings with the superintendent himself, con-
cerning the claim; from the whole of which, it is evident that he consi-
dered the contractors entitled to remuneration from government for their
losses, to some extent or other. -
In May, '85, the contractors applied to Congress for relief, soliciting
a determination of their claim by arbitration, as had been commenced;
in consequence of which, the following report was made by a committee
on the subject, and the following resolves passed that body, viz.
* The letters occurring in this statement, A, B, C, &c. refer to the same let-
ters in the appendix. -
[ 3 ]
IN CONGRESS—May 13, 1785.
The committee, consisting of Messrs. Williamson, Smith, Grayson, Wilson and
Howel, to whom was referred the memorial of the late contractors of the moving
army, report: &
That, on the 6th April, 1782, the memorialists entered into a contract with the
superintendent of finance, for supplying the moving army with rations at a certain
price, on condition of having payments made them in solid coin, at fixed periods.
That, from the ſailure of the several states to pay sufficient sums into the Trea-
sury, the financier had it not in his power to make the stipulated payments. The
contractors, in that situation, were unable to continue to furnish the army with
provisions, and the financier made a new contract with other persons on other
terms before their contract had expired.
The memorialists allege that they have sustained considerable damages by the
failure on the part of the financier to make his payments according to agreement.
and by his depriving them of their contract after they had sustained it during the
most expensive period, and pray that the same may be considered, and that they
may be indemnified for the losses they have suffered.
On which your committee submit,
That I. D. Merceir, W. Malcom, and I. Roosevelt, esquires, having made oath
that they will faithfully discharge this trust, be authorized to inquire into the par-
ticulars, and to determine what damages, if any, have been sustained by Tench
Francis, Comfort Sands, and others, late contractors for the moving army, from
the financier having failed to make good the stipulated payments, or from his with-
drawing the contract; and make report to Congress.
sºsºmsº
IN CONGRESS—FRIDAY 27th MAY, 1785.
On the report of a committee consisting of Mr. Williamson, Mr. Smith, Mr.
Grayson, Mr, Wilson and Mr. Howel, to whom was referred a memorial df the
late contractors for the moving army :
Resolved, That John D. Mercier. Wm. Malcom, and Isaac Roosevelt, Esq. hav-
ing made oath that they will faithfully discharge this trust, be authorized to in-
quire into the particulars, and to determine what damages if any have been sus-
tained, by Tench Francis, Comfort Sands, and others, late contractors for the
moving army, from the late superintendent of finance having failed to make goo
the stipulated payments, or from his withdrawing the contract, and make report
to Congress.
IN CONGRESS—Mox DAY, 27th JUNE, 1785.
On the report of a committee consisting of Mr. Smith, Mr. Cook, and Mr. How-
el, to whom was referred a memorial of Comfort Sands and Joshua Sands :
Resolved, That John D. Mercier, Wm. Malcom and Isaac Roosevelt, Esqrs.
having male oath that they will faithfully discharge this trust, be authorized to
inquire into the particulars, and to determine what damages, if any have beef,
sustained, by Comfort Sands, Joshua Sands, and Richardson Sands, dec. late con-
tractors for supplying the garrison at West Point and its dependencies, from the
late superintendent of finance having failed to make good the stipulated payments,
and from his withdrawing the contract, and make report to Congress.
On motion of Mr. Houston, seconded by Mr. King,
Resolved, That J. Milligan, comptroller of the treasury, be, and he is hereby di-
rected to attend, on behalf of the United States, the gentlemen appointed to it!-
quire what damages, if any have been sustained, as well by the late contractors
for supplying the moving army as the late contractors for supplying the garrison of
West Point and its dependencies, and that he be empowered to employ counsel if
necessary. dººms
% IN CONGRESS—FRIDAY, Nov. 4, 1785.
On the report of a committee to whom was referred a letter of the 9th August
last, from Messrs. Isaac Roosevelt, John Mercier, and Wm. Malcom, Esqrs.--and
also a letter of the 2d August, from Walter Livingston, in behalf of himself did
and associates, and Comfort Sands and Co.
| 4 |
Resolved, That the Secretary of Congress be, and is hereby authorized, in con-
junction with Walter Livingston and Comfort Sands and their associates, to agree
upon and appoint two disinterested referees, to be added to those heretofore ap-
pointed, to decide certain controversies between the United States and the said
Walter Livingston and Comfort Sands and their associates ; who, or a majority of
whom, shall be competent to report their opinion to Congress.
After considerable delay, owing chiefly to the inability of Elbridge
Gerry, Esq. one of the referees chosen on the part of government, then
residing in Boston, to attend to it earlier, the board of referees convened
in the month of October, 1787, in the city of New-York, where Congress
was then sitting, and then and there duly heard the parties, (the comp-
troller of the treasury, James Milligan, Esq. attending on behalf of the
United States, as directed by Congress,) examined their contracts, state-
ments and proofs, and made out and signed an award, dated the 25th of
said month, and communicated the same to Congress and to the claim-
ants, whereby the sum of forty thousand two hundred and ninety-seven
dollars and four ninetieth parts of a dollar, was adjudged to be due from
the United States to the contractors altogether; of which, about one
half was coming to the persons now represented by the present claim-
ants. The following is a copy of the said award, and . of the letters
communicating the same to Congress and to the contractors.
AWARD.
Whereas the United States in Congress assembled, did, on the 27th
May, 1785, resolve “That John D. Mercier, Wm. Malcom and Isaac
Roosevelt, Esqrs. having made oath that they will faithfully discharge
this trust, be authorized to inquire into the particulars, and to determine
what damages, if any, have been sustained by Tench Francis, Comfort
Sands, and others, late contractors for the moving army, from the late
superintendent of finance having failed to make good the stipulated pay-
ments, or from his withdrawing the contract, and make report to Con-
gress:” and afterwards, on the 27th of June, 1785, “Resolved, that
James Milligan, Comptroller of the treasury, be, and he is hereby direct-
ed, on behalf of the United States, to attend the gentlemen appointed to
inquire what damages, if any, have been sustained, as well by the late
contractors for supplying the moving army, as the late contractors for
supplying the garrison of West Point and its dependencies, and that he
be empowered to employ counsel if necessary:” And, on the 4th day of
November, 1785, further “Resolved, that the secretary of Congress be,
and hereby is, authorized, in conjunction with Walter Livingston and
Comfort Sands, and their associates, to agree upon and appoint two dis-
interested referees, to be added to those heretofore appointed, to decide
certain controversies between the United States and the said Walter
Iivingston and Comfort Sands, and their associates; who, or a majority
of whom, shall be competent to report their opinion to Congress.” And
whereas the said secretary of Congress, and the said contractors, did
agree upon and appoint the honorable Elbridge Gerry and Henry Rem-
gen, Esqs. to be added to those heretofore appointed for the purpose men-
tioned in the acts of Congress herein recited: We, the said referees, hav-
ing convened for the purposes mentioned in the said acts, on Monday the
3th day of October, 1787, and continued sitting from day to day, till Sa-
turday then next following, in order to afford the said James Milligan,
| 5 ||
Esq. comptroller of the treasury, on the part of the United States, and
the said contractors, competent time and opportunity to produce their
proofs, and having likewise heard the parties, and attentively examined
the contracts, accounts and papers, relating to the transaction, do deter-
mine and award, that Tench Francis, Comfort Sands, and others, late
contractors for the moving army, under the firm of Sands, Livingston and
Co. have, “ from the late superintendent of finance having ſailed to make
good the stipulated payments, and from his withdrawing the said con-
tract, sustained damages to the amount of thirty-three thousand six hun-
dred and seventy-five dollars and five ninetieth parts of a dollar, in spe-
cie;” and that Comfort Sands, Richardson Sands, and Joshua Sands,
under the firm of Comfort Sands and Co. late contractors for the garri-
son of West Point and its dependencies, have, “from the late superin-
tendent of finance having failed to make good the stipulated payments,
and from his withdrawing the said contract, sustained damages to the
amount of six thousand six hundred and twenty-one dollars and eighty-
nine ninetieth parts of a dollar.” And we accordingly do award, that
the sum of thirty-three thousand six hundred and seventy-five dollars
and five ninetieth parts of a dollar, in specie, be paid by the United
States to the said Sands, Livingston and Co.; and also, that the sum of
six thousand six hundred and twenty-one dollars and eighty-nine nine-
tieth parts of a dollar, in specie, be paid by the United States to Comfort
Sands and Co. respectively, contractors as aforesaid. -
- ISAAC ROOSEVELT.,
W M. M. ALCOM,
E. GERRY,
New-York, October 25, 1787. H. REMISEN.
- - New-York, October 25, 1787.
SIR-I have the honor to enclose to your excellency, the award of the
referees appointed to inquire into, and determine upon, the claims of the
late contractors for supplying the moving army, and the garrison of West
Point and its dependencies, which, I flatter myselſ, will receive the ap-
probation of Congress.
I have the honor to be, with great respect, *
Your excellency's most obedient and humble servant,
ISAAC R00SEVELT, Chairman.
His Excellency the President of Congress.
New-York, October 25, 1787.
GENTLEMEN-The referees have adjusted your claims upon the United
States, and their award, which I hope will be satisfactory, is herein en-
closed.
I am, gentlemen, your most obedient humble servant,
- ISAAC ROOSEVELT.
To Messrs. Sands, Livingston & Co.
And to Mcssrs. Comfort Sands & Co. Contractors, &c.
Upon that award, and the obligation it necessarily imposed upon the
justice and honor of the government, the claimants have ever since
rested their claim, believing it amply sufficient to entitle them to the
amount it specifies, and to satisfy all reasonable minds, without any fur.
ther inquiry into the original grounds thereof. tº
- | 6 J
On the 29th January, '88, the award was taken up in Congress, and
referred to a committee; who, on the 25th February following, after ex-
amining some of the referees and their proceedings, made the following
report: w
IN CONGRESS—25TH FEBRUARY, 1788.
Mr. Wadsworth, Mr. Otis, Mr. Dane, Mr. Hamilton and Mr. Kearney,
the committee to whom was referred the award of referees upon claims
of the contractors for supplying the army and garrison at West Point,
heg leave to report, that it is the opinion of your committee, the award
of the said referees ought to be eonfirmed by the United States in Con-
gress.
On the 11th March following, the above report was referred to another
committee, without indicating an opinion, either favorable or unfavor-
able to the merits of the award, but for the sake of further inquiry: which
committee never made any report thereon, nor did Congress come to
any decision on the subject, as stated by Alex. Hamilton, Esq. who was
then a member of Congress, in an official report he afterwards inade upon
a reference of the subject to him as secretary of the treasury, dated the
24th February, '91. Nothing further took place concerning the award
under the old government, which was then near its dissolution, and began
already to suspend its operations, and was also destitute of funds for the
discharge of any debt.
Under the new government, early application was made to the officers
of the treasury department for a settlement of the award, under the belief
that they were authorized to discharge the same, or to provide for it, as
any public debt of a similar nature should by law be provided for.
On the 15th March, 1790, Oliver Wolcott, Esquire, then auditor of the
treasury, made the following official report:
TREASURY DEPARTMENT,
Auditor's Office, March 15th, 1790.
I have examined the claims of Tench Francis, Comfort Sands and
others, late contractors for the moving army, under the firm of Sands,
Livingston and Co. and of Comfort Sands, Richardson Sands and Joshua
Sands, late contractors for the post of West Point and its dependencies,
under the firm of Comfort Sands and Company, for damages sustained
by them, from the late superintendent of finance having failed to make
good the stipulated payments, or from his having withdrawn the con-
tracts; and find that said claims are founded on an award signed by Isaac
Roosevelt, William Malcom, Elbridge Gerry and Henry Remsen, Esqrs.
and dated at New-York, on the 25th day of October, 1787; who, toge-
ther with John Daniel Mercier, Esq. were authorized by and in conse-
quence of the several resolutions of Congress, of the 27th day of May,
the 27th day of June, and the 4th day of November, in the year 1785,
to inquire into and determine the damages before mentioned, and to re-
port their opinion to Congress. g
I have examined Isaac Roosevelt, William Malcom and Henry Rem-
sen, Esqrs. three of the referees who signed said award, and sundry do-
cuments on which they formed their opinion, and find that James Milli-
gan, Esq. late comptroller of the treasury, was notified and duly heard
on the part of the United States; that said award was regularly made in
conformity to the powers with which the referees were wested, and that
their determination was seasonably reported to Congress.
| 7 |
I do therefore report, that said award of referees is binding on the
Dnited States, and in consequence thereof, that the said United States
are indebted to the late firm of Sands, Livingston and Company, the sum
of thirty-three thousand six hundred and seventy-five dollars and five
ninetieths; and also, to the late firm of Comfort Sands and Company, the
further sum of six thousand six hundred and twenty-one dollars and
eighty-nine ninetieths. -
The award of the referees before mentioned, and the documents sub-
mitted to my inspection are herewith transcribed for the decision of the
comptroller of the treasury thereon. -
OLIV. WOLCOTT, Jr. Auditor.
To Nicholas Evele1g H, Esq. Comptroller
of the Treasury of the United States. :
Upon a reference of the subject thereafter to the attorney general of
the United States, Edmund Randolph, Esquire, he gave an opinion that
the officers of the treasury department were not competent to allow the
award, without a previous authorization by Congress, though he admitted
it to stand fair, and in equity, to entitle the claimants to their money
under it. .
Application was then made by memorial to Congress; who in the first
place referred the subject to the secretary of the treasury, Alex. Hamil-
ton, Esquire, to examine and report; in consequence of which, the ſol-
lowing official report was made, viz.
The Secretary of the Treasury, pursuant to an order of the House of Re-
presentatives, of the 10th January last, referring to him, among other
things, a petition from Comfort Sands and others, respectfully reports—
That it is true, as represented by the said petitioners, that some time
in the year 1782, they contracted with the superintendent of the finances,
for the supply of rations for the use of the garrison of West Point and its
dependencies, and also for the use of the main army.
That it is likewise true, that before the expiration of the term of their
contract, it was deemed proper or necessary by the said superintendent,
that the business of supply should be withdrawn from them and placed
in other hands. p
That a claim to be indemnified for damages and losses alleged to have
been sustained, was made on the part of the said contractors; in conse-
quence of which, the several resolutions recited in the said petition were
passed, and nearly at the times therein specified.
That it further appears, that four of the referees appointed by and in
pursuance of the said resolutions, namely, Isaac Roosevelt, William
Malcom, Elbridge Gerry and Henry Remsen, did, in the year 1787, make
an award, or report, expresſive of their decision or opinion, that the
United States ought to pay to the said contractors, the sum of forty thou-
sand two hundred and ninety-seven dollars and four ninetieth parts of a
dollar.
That it is also true, as stated in the said petition, that the said award,
or report, was by Congress referred for examination to a committee, who
reported in favor of its being confirmed; but that report was afterwards
committed to another committee, who never, as far as can be traced,
made any report; neither has there been any decision of Congress on the
[ 8 }
subject. That the reasons which induced the reference to a second com-
mittee do not appear; but it is within the recollection of the secretary,
who was then a member of that body, that it was not attended with any
circumstances indicating an opinion either favorable or unfavorable to
the merits of the award; but was done for the sake of further inquiry.
That it is likewise true, that application having been made to the ac-
counting officers of the treasury, for a determination on the said award,
it had been concluded that they were not competent to the same, without
the special authority of the Legislature. - s
That in judging of the light in which this transaction ought to viewed,
the following particulars seem to claim attention:
That the course pursued was similar to that which is usual in the sub-
mission of controversies between individuals to arbitration. -
That there was a mutual election and consent in the appointment of
the persons who were to make the investigation.
That they are expressly denominated referees.
That they acted under oath.
That the proper officer representing the government, was empowered
to employ counsel, if necessary. . . . . . -
That the referees are authorized by the first resolution to determine
what damages, if any, were sustained by the contractors; and by the last
resolution, their duty or business is designated to be, to “decide certain
controversies” between the United States and the contractors.
That these characteristics, and the general spirit of the transaction,
appear to the secretary to denote, that the report of the referees in the
case ought to be considered as equivalent to an award between individu-
als, possessing the same validity and equally open to exceptions. -
That as to the provision made by the several resolutions, that the re-
ferees should report their opinion to Congress; this, it is conceived, could
only have been intended to reserve to Congress a right to receive the
award on the same principles, boma fide, as would prevail in a court of
justice. - •,
That, entertaining a doubt how ſar Congress, under the present consti-
tution of the United States, may think it advisable to exercise, themselves,
the power so reserved, the secretary forbears to enter into a detail of the
circumstances which attended the award ; desirous of submitting, in
the first instance,to the consideration of the House, whether it will not
be expedient to repose elsewhere the exercise of that power.
Two modes of doing this have occurred, which are also respectfully
submitted. One is, to authorize the accounting officers of the treasury,
on the application of the parties, to decide upon the award, on principles
similar to those which would prevail in a controversy concerning it, at
law. The other is, to authorize its being made, with consent of parties,
a rule of the Supreme Court of the United States, for the determination
of the said court; in which case it will, of course, be determined accord-
ing to those principles. - • , * *
All which is humbly submitted.
February 24th, 1791.
After several other applications to Congress at succeeding sessions,
which produced different reports of committees favorable to the claim,
but no final decision thereon, an act was at length passed by Congress,
| 9 |
viz. on the 2d March, 1799, whereby the accounting officers of the trea-
sury department were authorized to decide on the validity of the award,
in a technical sense, or according to certain principles; and if deemed by
them binding and obligatory of itself, in that sense, then to allow or dis-
charge it, untler a certain proviso or condition, but without authority in
any event to examine the original merits of the claim, or to adjust the same
upon any other ground than that of the validity of the award, according
to the principles and under the proviso annexed. Three years elapsed
before any judgment was formed under this law, when at length a com-
munication was made to Congress by the comptroller of the treasury,
John Steele, Esquire, to this effect:—That according to the principles
and conditions of that act, the officers of that department could not, in
his opinion, be justified in discharging the award; but admitting in sub-
stance, the existence of a claim independent of it, which, if recognized
by Congress, he recommended to be settled by a simple grant of money
without any further reference to the officers of that department. -
This communication was referred to a select committee of Congress,
who, on the 14th April, 1802, reported to the house, certain resolu-
tions for the purpose of referring the claim to the decision of the Su-
preme Court, both on the validity of the award, and on the ground of
original merits, which passed in a committee of the whole, and a bill
was ordered to be brought in pursuant thereto; but finally the whole sub-
ject became postponed till the next session of Congress. -
Subsequent to this period, the claim was not acted upon for man
years, owing chiefly to the inattention of Congress in not taking it up,
and to the state of public affairs, during a great portion of the interval,
embarrassed by embargoes, non-intercourse and war, and also in part to
several causes affecting the claimants; among which were the death of
one of them, who held the greatest interest, and had been the principal
agent for the whole concern; the misfortunes and bankruptcy of another,
and the minorship of another, rendering it impossible to attend to this
in the manner requisite; together with the discouragement naturally
resulting from so long and unavailing a struggle for their rights, attended
with a heavy sacrifice of time and money. But having presented their
claim at an early day, and pursued it steadily for a series of twenty
years, without obtaining any decision on it, (though repeated reports
and acknowledgments were made in its favor) they cannot properly be
charged with an omission of duty for leaving it to its fate before Con-
gress, or letting it lay suspended until the more prosperous state of the
country, and other circumstances, afforded fairer prospects of success.
At length it was revived during the session of 1816–17; when they
appealed again to Congress for justice, and presented a petition praying
for a reference of their claim to the judiciary department, agreeably to
the tenor of the resolutions which had passed the House of Representa-
tives on the 16th April, 1802, when it appeared to have been last under
eonsideration; upon which petition, no report at all was made by the
committee to whom referred, probably on account of the pressure of
other business.
In the following session, 1817–18, the present claimants came for-
ward separately from their former associates, and petitioned Congress
for their individual proportions of the original claims—which was occa-
g Tł
[ 10 J
sioned by the circumstance of their associates laboring under the suspi-
cion of being liable for some default of other persons said to be indebted
to the government, and their share of this claim of course subject to an
offset of equivalent amount; and that liability (if it existed at all) not
reaching or affecting the rights of the present claimants. That suspicion
had previously attached to all the parties concerned in the claim, and
excited prejudices against them, very erroneously, as it affected these
claimants, and perhaps the same as it affected the others; but in order
to remove the suspicion entirely from themselves, the present claimantº
were induced to pursue their rights separately and unconnected with
any other, as they had a right to have done at any time, and would have
done sooner, but for the objections to it of their associates. Upon the
petition then presented by the claimants, a favorable report was made by
the committee of pensions and revolutionary claims, and a bill introduced
to allow their proportion of the claim, according to the award; upon the
ground of its being conclusive as to the original merits of the claim, and
obligatory on the good faith of the government, and no offset whatever
being applicable to the share of the claimant: but the bill was not acted
upon that session, owing to the great pressure of other business.
In the session of 1818–19, this bill was taken up and recommitted to
another committee, for further examination: which committee finally re-
ported a bill for the allowance of a part of the claim, upon the ground of
that part being established by testimony before them, independent of the
award, and ought therefore to be allowed, whether the award was in it-
self obligatory or not—leaving the residue of the claim on its original
merits, open to further investigation at a future time. The shortness of
the session and the pressure of other business prevented the bill from
being finally acted upon.
At the commencement of the ensuing session, 1819–20, another ap-
plication was made, and a memorial presented to the Senate first, (the
former applications having been made to the House of Representatives)
in the hope and expectation that the Senate would have more leisure to
examine the subject properly and to act upon it speedily, and thus in-
crease the chance of a final decision by Congress, before the end of the
session. In that memorial it was solicited to have a decision made in
the first place on the validity of the award, and if not confirmed, then to
have the claim on its original grounds submitted again to referees, with
powers to decide definitively; or, if that were objectionable, then to have
it referred to the decision of the officers of the treasury department,
with the like power. The Senate did not, however, decide upon either of
these request8; but, according to an understanding entered into with
a committee of that body, for a final settlement of the claim by compro-
mise, (to which the claimants were compelled by circumstances to yield
their assent, though in their own opinion very far short of right,) a bill
was introduced by that committee and passed the Senate unanimously,
for allowing the claimants a certain amount, as a compensation in full of
their demands, equal to the sum which had been reported by the commit-
tee of the House the previous session, though not open as that was, to
future inquiry, in relation to the residue of the amount awarded. That
bill, being sent to the House for concurrence, was reported on favorably
by its committee of pensions and revolutionary claims, but still not acted
upon finally, from the pressure of other business.
i il 3
At the next session, 1820–21, the subject was again presented to the
Senate, which body passed again unanimously the same bill they had
passed the session before; and in the House it again met the same fate
as at the preceding session, being reported on favorably by its committee
of pensions and revolutionary claims, but not finally acted upon. -
At the following session, 1821–22, which was the last, the subject
was again ji. the Senate, and the same bill which had twice
passed that body unanimously, was again reported by its committee of
claims; but coming under the consideration of several new members un-
acquainted with the real merits of the claiin, or with the nature of the
compromise which had been agreed upon for its settlement, a proposition
was made, and carried in a committee of the whole, for reducing the
amount considerably below that allowed by the bill. This being con-
trary to the previous understanding, the subject was not again taken up
during the session. -
Thus the claim remains still unadjusted at the present day, notwith-
standing the lapse of forty years since its origin, and the multiplied en-
deavors used, as have heen recapitulated, to obtain a final decision on it.
Upon the foregoing statement of facts and occurrences, with the proofs
referred to, the following remarks and considerations seem entitled to
peculiar weight. - .
1st. A claim of great interest to private citizens, who served their
country during its struggle for independence, advanced their funds and
staked their fortunes for it, and some of whom have since enjoyed its
confidence, by being employed in public stations—a claim always ac-
knowledged to be well founded to some extent or other, once completely
liquidated by the decision of referees, and frequently on the verge of a
final settlement; has remained unextinguished and unadjusted, for the
amazing term of forty years, notwithstanding the most diligent and per-
severing exertions of the claimants to the contrary 11 But forbearing
comment at present, on the injuries sustained through such treatment,
it may be useful to advert to the singular incidents which seemed ac-
cidentally to retard the settlement of this claim, at various stages of its
prosecution. { } ,
When at an early period it was referred, by agreement between the
superintendent and the claimants, to the decision of arbitrators, and they
had commenced the investigation but could not complete it within the
time limited in the arbitration bonds, it so happened that the superin-
tendent went out of office, in consequence of a new arrangement by law,
of the treasury department, and was therefore obliged to decline any fur-
ther agency as a public officer in relation to it.
When, upon application to Congress, referees were appointed, and
acted under the authority of that body and made a decision on the claim,
which it was to be presumed would bring the matter at once to a close,
it so happened that their award came before the old government so late
and so near its dissolution, that it could not be acted upon definitively,
nor could it have been discharged for the want of funds. -
When presented to the new government, several questions arose con-
cerning the mode of determining its validity and providing for its pay-
ment, viz. What department was authorized to act upon it, according to
the constitution? Whether the legislature should exercise the right of
| 12 J
judging of the validity of the award, or should refer that question to the
judiciary 2 What mode should be adopted to investigate the original
merits of the claim anew, in case the award should not be deemed obli-
gatory P. Whether, when adjusted, it ought to be extinguished by pay-
ment in money, or by allowing the amount to be funded, in like manner
as other public debt was to be provided for 7 And also, after a lapse of
several years without any conclusion on the previous questions, whether
an offset could not be effected against this claim, for a supposed default
of other persons to the government? These various questions and diffi-
culties were of themselves a great cause of procrastination, and produced
a sort of contention or difference of opinion about it, which seemed to
defeat every endeavor for adjustment, and even produced an aversion to
act upon it. -
2d. Upon full consideration of the present state of the claim, it is con-
ceived to be perfectly evident, that the only just and equitable criterion
of judging the same, is the anard of the referees, made out in pursuance
of express authority from the government to that effect. That award
was fairly and regularly made by a competent tribunal constituted for
the purpose, conformably to the powers with which it was vested, and
has never been impeached or even suspected of any thing that can affect
its validity. It must of course be as obligatory against the government,
as such decisions are against individuals; and it cannot comport, as is
respectfully conceived, with the honor or interest of the government, to
take advantage of the weakness of individuals, and through mere will
and power, refuse a compliance with what it is bound in good faith to
perform; and what it would no doubt have coerced those individuals to
perform, if the case had been reversed, and they had been awarded to
pay, instead of to receive money. But it has been contended by some,
that the report of referees was not an award in a legal sense, but merely
a report of opinions, without any engagement to abide by them, and
therefore optional with the government to conform to it or not. To re-
fute this singular position, it will be sufficient merely to advert to the
character of the transactions between the claimants and the superintend-
ent relative to a settlement of their differences—to the nature of the first
application to Congress on the subject, after the superintendent declined
to extend the time limited in the arbitration bonds, and of the reports of
the committees of Congress thereon—to the tenor of the several resolves
of Congress, referring the inquiry into, and determination of the contro-
versy to the three referees therein named, (who had commenced acting
upon it, in consequence of the agreement with the superintendent) to-
gether with two others to be added to them, and to be chosen by the
mutual consent of the secretary of Congress and the claimants—to the
sense entertained of their functions by the referees themselves, and by
the claimants, and by the comptroller, who attended before them in be-
half of the United States—to the opinions expressed by the various com-
mittees of Congress and officers of government, to whom the subject be-
came referred, respecting the validity of the decision of the referees—
and especially to the official reports, of Oliver Wolcott and Alexandes
Hamilton, Esqs. herein before stated. -
3d. Supposing, however, that the government could upon any grounds
have been exonerated from abiding "by the award, was it not bound by
every consideration of fairness and equity, to come to such a conclusion,
[ 13 J
if at all, soon after the report of the referees was made 2 and then to have
granted the claimants a new hearing before some competent tribunal 2
or to have allowed an investigation into the original merits of the claim
to be promptly made by the proper department with a final adjustment
of some kind or other? and not to have kept them in suspense for such
a period, upon the mere question of the validity of the award, and
thereby deprive them also of every other remedy ? This is a serious
question, which, if answered in the only way it appears susceptible of,
cannot but have a bearing on the whole subject at this time. If the
government had never authorized the arbitration, or if it had in due time
set aside the award, the claimants might have obtained a liquidation of
their demand upon its original grounds, in the usual mode, at the trea-
sury department, and might have had the amount which was admitted
to be due to them, (for a considerable part was never disputed) provided
for, in the same manner that other public debt was, after the adoption of
the present constitution, and thereby have been more benefited, consi-
dering the sacrifices since made, than by any thing they can now expect.
4th. In case the decision of the referees be considered merely as a
report of facts and opinions, it must unquestionably be entitled to great
weight in deciding upon the claim at the present time; as great as the
ordinary reports of committees of Congress, generally deemed conclu-
sive on matters of fact, and sufficient even to inspire a confidence and
belief that the result of the inquiry of the referees, at so early a day, and
under such favorable circumstances, must have been correct; inasmuch
as it was made by gentlemen of the highest character and standing in
society, viz. Elbridge Gerry, late vice-president of the United States—
William Malcom, a general of the revolutionary war—Isaac Roosevelt,
a senator for many years of the state of New-York, and president of the
only bank then in that state—and Henry Remsen, a distinguished citi-
zen and merchant of the city of New-York :—two of whom were ap-
pointed by Congress with the consent of the parties, and the two others
subsequently chosen by the secretary of Congress and the parties, ex-
pressly for the purpose—who acted under oath—examined witnesses
under oath—heard the parties respectively—(the comptroller attending
in behalf of the Uuited States, as directed by Congress)—examined atten-
tively, the contracts, accounts and papers relating to the subject of their
inquiry—and under the highest responsibility, as well as with the great-
est deliberation, formed a judgment on the whole merits of the case, and
communicated it to Congress and the claimants, in the shape of an award,
agreeably to the nature of their office, as understood by themselves. It
is true that one out of the five referees did not concur with the other
four, in their decision or report, and subsequently stated the reasons of
his dissent; but it will be sufficient to observe, in regard to that circum-
stance, that, besides the fallacy apparent on the face of his statement, he
stands alone against four others; each one of whom was entitled to more
confidence than himself, and whose united judgment is the more to be
relied on for correctness, from having been opposed by one of their own
board at the time of forming it, and from their number having been in-
creased from three to five referees, partly in consequence of his previous
opposition.
5th. In case a judgment is now to be formed on the original merits of
the claim, according to the documents in possession of the government,
[ 14
without relying on the award as conclusive, and without allowing for
the loss of some of the testimony upon which it was founded, it is still
sufficiently clear, that the claimants must be entitled to a sum as large
as that found by the award. By the documents referred to, the following
points are established. 1st. That the superintendent ſailed to make his
payments according to agreement, as acknowledged by himself at differ-
ent times, especially in his official letter to Congress, of the 21st October,
1782, as proved by the Official statement of the accounts between the
government and the contractors, made out in the register's office, and as
set forth in the report of the first committee of the old Congress, to whom
the subject was referred, made the 13th May, 1785. 2dly. That the
contractors necessarily sustained damages, in consequence of the super-
intendent's failure in payments, by being obliged to purchase the provi-
sions required by their contract, on credit, instead of with cash in hand—
by their sudden advance in price, from an unexpected demand, while
money was withheld, and compelled thereafter to transport a part of them
a great distance by land, and by the unavoidable depreciation of certain
notes taken in payment from the superintendent, in lieu of specie, (the
mere issuing of which notes, proves his inability to pay in specie, accord-
ing to the contract). 3dly. That the superintendent withdrew the con-
tracts against the consent of the contractors, two months and a half be-
fore their stipulated termination, after they had been sustained during
the most expensive period of the year; which subjected the contractors
to the loss of a heavy sum, recovered from them by law, for damages, by
the sub-contractors—and also to the sacriſice of those profits they would
have realized, by furnishing the supplies during the term unexpired, in
consequence of the decline in prices during the autumn of that year; and
also, to those unavoidable sacrifices which must always result from a
sudden and unexpected stoppage in a career of business so extensive as
that was, amounting to near fifty thousand dollars per month. 4thly.
That a balance of above one hundred thousand dollars was due to them
at the time the contract was withdrawn, for supplies actually furnished
previously thereto, as appears by the register's statement of accounts,
which was withheld a considerable time, without any allowance for the
detention.
Upon the different grounds thus established by documentary evidence,
may be formed a general estimate of the damages and losses sustained
by the claimants, though without the aid of some further testimony as to
particulars, it may be difficult to arrive at a precise amount. All the tes-
timony that could be required in regard to particulars, was adduced be-
fore the referees, and after their award was made, was not deemed neces-
sary to be preserved. The witnesses and referees have all long since
paid the debt of nature. In going back then, beyond the decision of the
referees, in order to prove the whole amount of damages, some allowance
must of course be made for the difficulty of proving, at this late day, the
precise amount of each item; and if the main result, upon rational
grounds of calculation, be equal to the sum claimed, it cannot be mate-
rial whereof the parts are composed. The referees awarded the amount
of damages at forty thousand two hundred and ninety-seven dollars; the
particulars whereof were not exhibited by them, either to Congress or to
the claimants, but appeared in a communication unauthorizedly made by
the dissenting referee. Supposing the particulars correctly stated by
[ 15 J
him, which is not admitted; and that they composed the sum awarded,
yet it may be presumed, and there is evidence to shew, that the referees,
in allowing them, were influenced by certain public considerations appli-
cable to another item also claimed, but rejected by them, which operated
in favor of the parts allowed.
The folloning is a copy of the particulars of the Anſard, as stated by the
dissenting Referee, combining in one vien, the items alloned under each
contract, viz. .
1st. Interest upon the balance stated by the treasury accounts,
to be due 1st Nov. 1782, - - tºº * iº - - $828.83.
2d. Extra price of 12,936 cwt. 2 qr. 5 lb. flour, at 3s. 11; d. with
interest thereon, tº gº tº dº * † * * - 8,348.56.
3d. Profits allowed upon 1,162,040 rations, issued from the 16th
Oct. 1782, till 31st Dec. following, at from 1 to l; cent per
ration, tº '• gº ſº º sº tº ºf gº * = 17,191.73
4th. Damages and charges recovered by Phelps
- - * * . 11,679.30 / .
and Edwards, gº tº gº -* gº 13,927.52.
Interest upon this sum from 1st Aug. 1784, to the 2.248.22 3 *z 4- 4 • *.
15th Dec. 1787–3yrs. 2mo. 15ds. - gº ; 3 - -- ~ *
$ t $40,297.04
In addition to the strong presumption derived from the award itself, in
favor of the justice of allowing each of the above particulars, the follow-
ing considerations tend also to confirm them. -
The first item is the result of a mere calculation of interest upon the
accounts of the contractors with the United States, as stated hy the re-
gister of the treasury, and will be found correct on a comparison there-
with. -
The second item is an allowance for a heavy loss sustained in the pur-
chase of flour, in consequence of the failure of payments by the super-
intendent, which prevented the contractors from laying in a sufficient
quantity of that article in season, and before a rise took place, from an
increased demand caused by the arrival of the French fleet at Boston,
and the junction of the French and the American army; to this may be
added, the natural effects of the season of the year.
The third item is the result of a calculation upon the current prices.
of provisions about the country, between the 15th October and the 31st
December, 1782, compared with the price of the ration, according to the
contracts, and is founded upon the principle, that if one party to a con-
tract arrests the execution of it, without the consent of the other, he be-
comes liable to damages equal to the profits which the other could have
made by the performance. This is the only just criterion by which to
estimate damages in such a case, either between individuals or between
a government and individuals. The sole inquiry in relation to this item.
then is, whether the contractors could have procured provisions during
the term aforesaid, at such a rate as to have afforded a profit of from one
cent to one and a half cent per ration. This they proved, to the satis-
faction of the referees, who accordingly allowed it. But if Congress will
refer this claim to persons having leisure to hear witnesses, and go into
[ 16 J
this examination, the claimants pledge themselves again to prove this
item, which is by no means exclusively profits, but principally a reim-
bursement for losses sustained in executing the contract, during the spring
and summer, when provisions were, and always are, more scarce and
dear than in the fall—the period which they were deprived of their
contract.
The fourth item is the loss of so much money recovered by an action
At law by the contractors, for damages sustained by them through the
withdrawing of the contracts, and actually paid to them in specie, which
has always been admitted as justly reimbursable. It is established by
an exemplified copy of the record of the Supreme Court of the state of
New-York—by the affidavit of Aaron Burr, Esq.—by the receipts and
acknowledgments of the sub-contractors—and by the report of a come
mittee of Congress, made particularly in relation to it, and is the same
that was to be provided for by the bill which has twice passed the See
nate, as before stated.
The amount of these four items is the extent which the claimants
have asked for, since the award was made, as that embraced no more;
but there was another item of large amount which they claimed before
the referees, and ought yet to be considered if their award be not wholly.
abided by, viz. the loss sustained by the depreciation of Morris' notes.
It was shewn by the register's accounts, that above one hundred thou-
sand dollars were passed to them in payment in these notes, in lieu of
specie; and they must inevitably have suffered a great loss by them.
They claimed on that account above fourteen thousand dollars, but
the referees declined making any allowance for the same; partly, as
was understood, upon the ground of its tendency to involve the go-
vernment in an immense loss upon the amount of notes issued by Mr.
Morris for the public service; for if depreciation were allowed on any,
it would be claimed on all. Still it is presumed that the rejection of
this part of their claim, operated in favor of allowing some of the other
parts.
In conclusion. It may not be considered improper to notice an objec-
tion which has sometimes been made to the payment of this claim.
It is said that the contracts were not duly executed by the contrac-
tors. The proof of this is, the letters from General Washington, that
complaints existed in the army against one of the contractors. If this
is granted to be true, it by no means proves that the fault lay with the
contractors; they had again and again alleged their inability to furnish
the army, without the payment of their long arrearages. The superin-
tendent, Mr. Morris, in order to uphold the credit of the government,
would not then admit his inability to comply with his contract. Public
considerations led him to sacrifice the contractors for the good of the ma-
tion, and therefore he permitted General Washington and the army to
believe the fault lay with the contractors; which, by all his after pro-
ceedings to do the contractors justice, he fully admits. And after all,
what army in want, and without pay, as the American army then was,
would not quarrel with their contractors 2 That the superintendent
could not pay for the supplies monthly, is obvious; and in his new con-
tract he did not stipulate to do it, but enhanced the price of the rations
three cents for a credit of three months. That new contract speaks vo-
| 17 J
lumes on his ability to pay monthly—and the superintendent himself
made no complaints against the contractors, but exonerated them by
saying expressly, in his letter to Congress of the 21st October, 1782,
that the complaints of the army were “trivial in themselves,” and that
“with the means of payment, he could and would have facilitated and
compelled such performance of the contract, as to remove all uneasiness
from that quarter.” -
The claimants solicit of Congress, a deliberate and minute examina-
tion of this claim, and particularly of the causes which led General
Washington to censure one of the contractors. They believe it will be
admitted that that great man wrote the letters referred to, under a belief
that Mr. Morris or the nation were not in deſault in relation to their pay-
ments, and that the contractors had the means furnished to them, and
ought to have continued the supplies. Yet when the time came that
Mr. Morris could, without injury to the cause of our independence, admit
the truth, he unequivocally confessed that the fault lay in the inability
of the nation to make good their engagements. And who, after a care-
ful perusal of the correspondence between General Washington and the
superintendent, can believe that he, General Washington, would have
indulged in the asperities he did against one of the contractors, had Mr.
Morris previously acquainted him with the facts set forth in his confiden-
tial communication to the president of Congress, of the 21st October,
1782 2 y
To have borne the censures of Washington, and the odium of the
officers, would appear to have been a sufficient sacrifice for the contrac-
tors to make for the good of their country, without being now told that
the letters of Washington, written under such a delusion, are also suffi-
cient to debar the claimants from a demand which would otherwise be
considered just and equitable.
The claimants rely on the justice and equity of Congress, to settle
and allow this claim, bottomed on the obligation which the award im-
poses. But if the award is to be set aside, as neither binding nor as fur-
nishing the best evidence as to the amount which ought to be paid, then
the claimants ask a new reference to arbitrators, entirely to be chosen
by the government—or to the Supreme Court—or to the Treasury De-
partment. And if Congress are not disposed to comply with either of
these requests, then the claimants beseech them to do whatever else in
their wisdom shall appear just and equitable.
APPENDIX.
(A.)
Office of Finance, 21st Oct. 1782.
SIR-The negligence of the several states in supplying the treasury,
has at length brought on one evil which I had long apprehended, and
attempted (in vain) to guard against. - w
Congress will recollect that I had contracted for the supply of the
garrison at West Point, at nine pence half-penny, and to the moving
C -
| 18 J
army at ten pence, Pennsylvania currency, per ration. The vicinity
of the army to West Point, induced the two companies of contractors to
join themselves together, and thus they presented for payment a monthly
account of from forty-five to sixty thousand dollars. I found myself in-
capable to supply the monics required. The expectations I formed from
the taxes proved extremely fallacious, and the reliance I made on a sale
of bills, failed with the failure of a demand for them, which was utterly
unexpected, and arose from the appearances of peace. It is unnecessary
to go into a detail of the expedients which I have been driven to; it is
Hufficient to say that they proved unequal to the object. Among other
things, I drew bills in anticipation of the taxes, but those taxes came in
so slowly, that they were of little use. The bills were drawn by me on
Mr. Swanwick; the receivers were directed to receive them as cash in
payment of taxes, and remit them to the treasury. When they came to
the treasury, Mr. Swanwick took them up with the receipts given to him
for so much money by those who originally received the bills, and thus
time was gained for about six weeks or two months, and sometimes
longer. It is not necessary to observe, what is known to every body,
that, although contrivances may be used to procrastinate a payment, it
must at length come from some quarter or other. I exhausted all;the cape-
dients I could devise, but at last I became in arrears.
In consequence of this, four of the contractors joined in a letter to
me, of the 11th of September, of which the enclosed paper No. 1, is a
copy. In this letter, those parts which commanded any particular atten-
tion, were, first, the demand of two promises—one, that they should be
indemnified for all damages sustained from the public inability to per-
form their engagements; and the other, that I should, on producing the
monthly accounts, immediately pay one half in specie, and three times
as much more in the notes above described; and secondly, the declara-
tion, that unless these assurances were given by the first day of October,
the supplies must cease. I had no prospect of being able to make this pay-
ment, and tſjerefore that matter was out of the question; but even if I
could have complied, the previous assurance of indemniſcation was what
I could not give. -
I had, on the 10th day of September, appointed Ezekiel Cornell, Esq.
in pursuance of the act of the seventh of May last, to be inspector for
the main army, and therefore on the 20th of September, I enclosed a
copy of the letter above mentioned, in that of which the paper No. 2 is
a copy. Although the letter of the 11th of September was the first ex-
press declaration of the kind made by the contractors, yet I had long had
ºreason to be convinced, that if the supplies of cash from the treasury should
be for any considerable time suspended, they would be unable to perform
their stipulations ; and it was very clear, that the public could have no right,
wnder such circumstances, to exact them. When I found, therefore, that I
might be obliged to suspend the payments, it became necessary to look at,
and provide for, the consequences. I enclose in the paper No. 3, my com-
munications on that subject to the general.
It happened that Messrs. Wadsworth and Carter, during their passage
through this city from Virginia, mentioned their intention of bidding at
the contracts I should offer for the year 1783, if they could accomplish
certain other arrangements. In the course of the conversation, the seve-
ral disputes which had arisen in the execution of the existing contracts
{ 19
were mentioned, and the inconveniencies of a stipulation for monthly
payments were naturally connected with some of these disputes. In
discussing the advantages of a longer credit, these gentlemen informed
me that they intended to offer a credit of three months. I then took
occasion to suggest the possibility that the animosities between the army
and some of the contractors might lead to a dissolution of the contract,
and asked if they would take it up. They declared that in the last ne-
cessity they would, but that, (as it would materially interfere with other
views, and come too suddenly for the state of their funds,) they wished
to avoid it. -
It was partly in consequence of this conversation, that I wrote to Mr.
Cornell the letter of which No. 4 is a copy. Inſas influenced in some degree
by the desire to obviate complaints which existed in the army, and which, how-
ever trivial in themsctves, yet nh ºn combined mith the want of pay and other
circumstances, mere not to be neglected. The general's want of confidence
in Mr. Sands, one of the contractors, was an additional reason ; but the
Ietter itself contains that which decided my conduct. And it was ruith
very great regret that I found myself impelled to such a decision. With the
means ºf payment. I could and would have compelled and facilitated such
performance of the contract, as to remove the uncasiness of the army from
that quarter, but without those means it n'as impossible. Besides, to have
vacated the contract, from the default or misconduct of the contractors,
would have involved no loss of credit. I saw, too, that any new con-
tract must be more capensive, and yet not to have made any would have in-
creased the mischief. These evil consequences were not the less sensi-
ble, from a consideration that the moment had arrived, when it was
necessary to advertise for the new contracts, and they affected me still
more, when I reflected that the loss of our credit, (slender as it is) might
have some influence on the negotiations for peace. In a word, Sir, I
felt the sitéation I was in, and the determination I was driven to, as the
most distressing of an administration, which, from the first moment of
my acceptance, has not been without care and anxiety. I was reduced
to a choice of difficulties, and I had no time to look for the means of
extricating myself. I should, indeed, have directed Mr. Cornell to apply
to the contractors for a longer credit, but to this there were many objec-
tions. I shall mention, however, only this one; that they had on various
occasions taken pains to convince ºne, and did convince me, that they had not
funds by any means sufficient for the purpose.
No. 5 contains the copy of Mr. Cornell's letter to me, of the 5th of
October, with its enclosures; and No. 6 is an extract from Col. Tilgh-
man's letter of the same date, which is referred to in that of Mr. Cornell.
My answer to the former (of the 10th) is contained in No. 7. On the
same day I wrote to the contractors a letter, of which No. 8 is a copy,
and this morning I received the contract executed by Mr. Carter, for
himself and Mr. Wadsworth, of which the paper No. 9 is a copy. Front
this it will appear, that the principal differences between the former and
the present agreements are, that the price of a ration is advanced to thir-
teen pence, and credit given to the public for three months. If it be
asked whether this be a good bargain, I answer at once it is not, but I
believe it to be the best which could be made. In a situation where
only bad things can be done, to adopt the least pernicious is all which
can be expected. I have, however, made use of this occasion to write a
| 20
very pointed letter to the several states. I enclose a copy in the paper
No. 10, for the perusal of Congress, as it contains some observations on
the business, which are not repeated in this letter.
I have taken the liberty to trouble your excellency with this detail,
that the United States (being fully informed) may give any directions
they shall think proper. -
I am, Sir, with perfect respect and esteem,
Your excellency’s most obedient and humble servant,
- * R. MORRIS.
His Excellency the President of Congress.
(B.) , #
Memorandum of an Agreement made *..." day of September, 1784, be-
tnyeen Robert Morris, Esq. Superintendent of the Finances of the United
States, on the part of the said States, and Sands, Livingston and Co late
Contractors for supplying the moving Army. . . . . .
Whereas it hath been suggested on the part of the said companies,
that they have sustained grievous loss and damage by reason of the de-
tention of various sums of money justly due and owing unto thern, accord-
ing to the form and effect, and to the true spirit and meaning of the afore-
said contracts now on record in the treasury office of the United States:
And whereas the said Superintendent hath heretofore promised, by a
letter of the 10th of Oetober, 1782, to join the said companies in every
proper measure to obtain ample compensation for any damages they
might have sustained by a failure in performance of that part of the con-
tract which imposed obligation upon the public, as by the said letter,
reference being hereunto had, will more fully appear: And whereas
John D. Mercier, hath been appointed by the said superintendent, on
the part of the United States, and William Malcom, by, and on the part
of the said companies, as arbitrators in the premises: and the said arbi-
trators have chosen Isaac Roosevelt, as a third arbitrator, which the said
parties have agreed to. Now, therefore, it is agreed, that the said John
D. Mercier, William Malcom and Isaac Roosevelt, shall fully inquire
into the premises, and whether the said contract hath been broken on
either part, and in what manner, and whether any, and what compensa-
tion he due on either part, for such breaches; all which they shall certify
by award, under their hands and seals, or the hands and seals of any two
of them. . And the parties above named do hereby promise, that they
will faithfully abide by, perform, fulfil, and keep such award, provided the
game be executed ready to be delivered to either of the said parties, on
or hefore the first day of October next. In witness whereof, the parties
have hereunto set their hands and seals, the day and year above written.
• . . . . ROBERT MORRIS, L. S.]
WALTER LIVINGSTON, É. s.]
* COMFORT SANDS, L. S.]
-- r . JOSHUA SANDS, [L. S.]
Sealed and º: WM. MERCIER, t;
in the presence of K THEo, WAN Wyck, jun.
Sealed and delivered by Robert ! J. REEs,
MoRais, in the presence of Theo. Van Wyck, jun.
~~~~º
Frrata—P. 16, 8th line from top—for contractors, read sub-contractors.