MtjpiOVf OF PROCEEDINGS IN THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW-YORK, OJY A SUIT BROUGHT BY THE UNITED STATES AGAINST June 3, 1822. CONTAINING THE TESTIMONY AT LARGE, THE SPEECHES OF THE DEFENDANT, AND OF THE COUNSEL ON BOTH SIDES, TOGETHER WITH THE JUDGE’S CHARGE. BY ONE OP THE JURY. NEW-YORK: PRINTED BY C. S. VAN WINKLE, 1822. Southern District of iVew - York, ss. BE IT REMEMBERED, that on the twenty-fifth day of June, in the forty- sixth year of the Independence of the United States of America, Arthur J. Stansbury, of the said district, hath deposited in this office the title of a book, the right whereof he claims as author, in the words following, to wit: “ Report of Proceedings in the District Court of the United States for the Southern District of New-York, on a suit brought by the United States against Daniel D. Tompkins, June 3. U22. Containing the testimony at large, the speeches of the defend¬ ant, and of the counsel on both sides, together with the Judge’s charge. By One of the Jury.” In conformity to the act of the Congress of the United States, entitled, 11 An act for the encouragement of learning, by securing the copies of maps, charts, and books, to the .authors and proprietors of such copies, during the times therein mentioned and also to an act, entitled, “ An act supplementary to an act, entitled, an act for the encouragement of learning, by securing the copies of maps, charts, and books, to the authors and proprietors of such copies, during the times therein mentioned, and extend¬ ing the benefits thereof to the arts of designing, engraving, and etching historical and ether prints. ’ JAMES DILL, Clerk of the Southern District of New-York. The characters of men holding eminent stations of honour and of trust, are, in some sort, the public property. Whatever greatly af¬ fects them, awakens a general interest, and leads to long and eager discussion. This is right : it bespeaks a state of the public mind alive to the national honour, and practically identifying that honour with the. conduct of those who ought to sustain it. The individual involved in the case now reported, occupies the second station in this Republic ; he has been reported as a public defaulter ; and this suit was brought to try the question, whether he is a debtor or a creditor to the country. To Americans this cannot be a ques¬ tion of indifference, since, by the moral habits of mankind, debt is for the most part identified with dishonour. The report lays no claim to legal precision ; its author is not a lawyer : its only merit, if it has any, consists in its presenting a fair and impartial statement of the substance of the cause. As a Juror, the Reporter was compelled, by his duty, to give the proceedings his earnest attention—but if was not till they were closed that the idea was suggested to him of attempting to report them. Hence the production is less complete than it might easily have been made, had that idea been taken up at the beginning. The testimony is put down partly from memorandums taken in the jury box, partly from notes kindly furnished by the counsel on both sides, and partly from recollection. The closing part of the address of the Vice President has been literally copied from a paper supplied by himself; the speech of the District Attorney is attempted from a memorandum in writing; those of Mr. Hoffman and Mr. Emmet are from memory entirely. 4 To the presiding Judge the Reporter is indebted for the very able charge delivered to the Jury : the documents introduced have been carefully compared with the originals, and may be relied upon as accurate. With these explanatory notices, the report is submitted to the reader’s candour and indulgence. A. J. S. > DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF NEW-YORK. MONDAY MORNING, JUNE 3d, 1822.—11 o’clock. The Court met, pursuant to adjournment. Present, The Hon. WILLIAM P. VAN NESS. The Court was opened by proclamation. The United States of America } v. > Daniel D. Tompkins. ) On motion of the Attorney of the United States, this cause came on to trial, and the following Jury was impannelled and sworn : Azariah Ross, Samuel Norsworthy, William Jessup, Willet Coles, John P. Dieterich, Edward M. Murden, Noel Blanche, Arthur J. Stansbury, John Bedient, John Paret, Isaac Marquand, Moses Gulick. The Attorney of the United States, Robert Tillotson, Esq. opened the cause ; and stated, that the suit was brought to recover from the defendant the balance which appeared on the books of the Treasury to be due from him to the United States. He produced in evidence the following documents : u Dr.—Daniel D. Tompkins, late Governor, in ac.wilh the United, States. “To Abijah Yelverton, late Paymaster Vols. and C. For this amount entered to the credit of Governor Tomp¬ kins, on settlement of bis accounts 15th of November, 1816, being for payments made certain Militia and Vo- lunteers, for which said Yelverton is entitled to a cre¬ dit ; as the advance made him by Governor Tompkins, to pay these troops, was passed to the Governor’s credit on the 15th of December, 1814, and charged to the personal account of said Yelverton, vie. Volunteers,.$5,833 79 Militia,.• £,627 63 -14,461 42 “To the Corporation of New-York. To this sum admitted to his credit on the 30th Novem¬ ber, 1816, and charged to the Corporation of New- York, being a sum paid that body more than the amount of interest on the loan made the General Go¬ vernment, now brought to his debit, and for which he acknowledges himself accountable, . . 723. 86 $15,185 28 “ To balance due the United States, . . . 11,022 57 “ Second Comptroller’s Office, June 16th, 1820. “Examined by Joseph Hinkley, Clerk.” “Daniel D. Tompkins , late Governor, in ac. with the United States. —Cr. “ By general account of arrearages. For the amount of his account for pay and emoluments while in the service of the United States, in the late war with Great Britain; allowed by the Secretary of War, viz. “As Major General, from the 7th of September to tbe 4th of November, 1812. . . $656 17 “ As Major General, commanding at N. Y. from the 16th October, 1814, to 16th April, 1815, 2,641 04 Pay and emoluments, 3,297 21 7 ’ For allowance of transportation of baggage, fuel, and quarters, in the above period, as per ac¬ count allowed by the Secretary of War, 865 50 -4,162 71 Balance due the United States, . . , 11,022 57 % 15,185 28 “ Treasury Department, Third Auditor’s Office, 14th June, 1820. Stated by J. Thompson, Chief Clerk.” “ No. 7,377. Treasury Department, Third Auditor’s Office, 14th June, 1820. “ I certify that I have examined and adjusted the account of Daniel D. Tompkins, late Governor of the State of New-York, and find that he is chargeable with the following sums, viz. “ Amount of warrant number 617, transmitted to him on the 28th of June, 1817, on account of fortifica¬ tions, ........ $6,000 00 “ This sum being the amount passed to his credit the 15th of November, 1816, for certain payments made by Abijali Yelverton to Militia and Volunteers, the same being included in the advances made said Yelverton, and passed to the credit of the Governor, the 15th of December, 1814, viz. On acct. of Volunteers, . $ 5,83.3 70 do. Militia, . . 8,627 63 -14,461 42 << This sum admitted to his credit on the 30th of No¬ vember, 1816, as a sum paid the Corporation of New- York for interest more than they were entitled to, on money loaned the General Government, for which he is now held accountable, . ... 723 80 Making together, 21,185 28 And that he is entitled to the following credits, viz. 8 “ For this sum placed in the hands of Justus Post by the Committee of Defence at New-York, in October, 1814, and expended on the fortifications at Hurl Gate, to refund which the above warrant, No. 617, was is¬ sued and charged to Governor Tompkins—on ac¬ count of Fortifications, . . $ 6,000 “ This amount being for his pay, emoluments, transpor¬ tation, fuel, and quarters, as Major General, while in the service of the United States; allowed by the Secretary of War, .... 4,162 71 $ 10,162 71 Leaving a balance due the United States of $ 11,022 57 “ As appears from the statement and vouchers herewith transmitted for the decision of the Second Comptrol¬ ler of the Treasury thereon. Peter Hagner, Auditor. “ To Richard Cutts, Esq., Second Comptroller of the Treasury. “ Second Comptroller's Office. “ I admit and certify the above balance, this i 6th day of June, 1820. “ Richard Cutts, Second Comptroller.” “ Treasury Department, Third Auditor’s Office, October 15th, 1821. Pursuant to an act to provide for the prompt settlement of public accounts, approved the 3d of March, 1817. I, Peter Hagner, Third Auditor of the Treasury of the United States, do hereby certify that the foregoing transcripts are true copies of the original on file in this office. Peter Hagner, Aud.” Be it remembered, that Peter Hagner, Esquire, who certified the foregoing transcripts, is now and was at the time of doing so, Third Auditor of the Treasury of the United States, and that faith and credit are due to his official attestations. “ In testimony whereof, I, William H. Crawford, Secretary of the Treasury of the United States, have hereunto subscribed my name and caused to be affixed the seal of this Department, at the City of Washington, this 15th day of October, in the year of our Lord one thousand eight hundred and twenty-one. | l. s.] Wm. H. Crawford, Secretary of the Treasury.” 9 “ GENERAL ACCOUNT OF ARREARAGES, “ Dr.—Daniel D. Tompkins , late Governor of New-York, in ac. with * the United States. “ 1820. June 16th. To balance per settlement, No. 7377, 11,022 57 “ 1821. Nov. 27ht. To Peter Magher, for amount refunded per receipt, 19th May 1813, . . . 200 00 11,222 57 “To balance due United States, . . 11,22*. 57 ** ' • Daniel D. Tompkins, late Governor of New-York, in ac.-with the United States. — Cr. “ Balance due United States, . . 11,222 57 “ Treasury Department, Third Auditor’s Office, Feb. 5th, 1822, “ Stated by William S. Wilkin, Clerk. “ Second Comptroller’s Office, Feb. 6th, 1822, “ Examined, E. Reynolds, Chief Clerk.” [Certified in the same manner as the preceding.] The Vice President opened the defence in person, and addressed the jury to the following effect: Gentlemen, It gives me the most unfeigned satisfaction to have, at length, this opportunity of addressing a jury of my country. It is not forced upon me-—I have long and earnestly sought it. The suit which you are called to decide upon has been brought at my suggestion. 2 10 I sought it, because, after enduring so much from misrepresentation and calumny, I longed for the opportunity to convince at least a jury of .twelve of my fellow-citizens, that I am not what I have been falsely proclaimed to be, a public defaulter; but am now, and have been, from the very commencement of my public services, the creditor of my country. If I am not deceived, I shall be able to satisfy every man among you that I have been its creditor, by the acknowledgment of the treasury, to the amount of from five to five hundred and nineteen thousand dollars. In the commencement, however, of this investigation, I have to warn you, gentlemen, against the influence of personal or of political feeling. Should the various situations in which my public life has placed me have brought me. at any time, into collision with party feeling, bury it, I beseech you, on this occasion ; let not its influence intrude upon the sacred¬ ness of a court of justice. And if, on the other hand, the circum¬ stances of injury which 1 have sustained, and of destitution in which I appear, should excite any thing like sympathy or pity in your breasts, bury that also, I conjure you. 1 ask no sympathy—I seek no compassion. Could 1 believe that your verdict on this occasion was to be guided by your sympathy, I should despise both it and you. 1 demand of you justice only. If my claims are not just, do not allow them ; but if they are, have the firmness and the inde¬ pendence to say that they . are. (The Defendant here went into a full explanation of the manner in which the double credit, on which the present action is brought, came to appear against him on the treasury books. An amount which should have been passed at once to his credit, was entered short, because the money, though furnished by him, had been paid out by Major Yelverton, and credited to the latter. After the Defendant left Washington, the Comptroller of the treasury, having understood the nature of the transaction, ordered the amount to be extended. This was done without the knowledge of the Auditor or of the Defendant ; and, therefore, in a subsequent settlement, he continued to charge this balance. He then went into a general statement of the nature of his claims, which are contained in the following bill of particulars :—) 11 “ The United States to Daniel D. Tompkins, Dr . 1822. June 1. [No 1.] To interest on $38,320 20, from 1812 to 1816, 4 years, .... 10,729 64 [No. 2.] To interest on $4,411 25, from 24th Dec. to 24th May. 1820, is 5 years 6 months, 1,689 29 [No. 3 ] To $14,527 64, which Mr. Brent, the Paymaster General of the Army, promised to credit my account, but has not, 14,527 64 Interest thereon, 9 yrs. and 6 months, 9,666 83 --24,194 47 [No. 4.] To $20,000 improperly charged to me in the second account, . . 20,000 Interest thereon, 6 years and 6 months, 9,100 --29,100 00 [No. 5.] To Interest on $2,192 77, from 1814 to 1816, when paid, is 2 years, . . , 306 98 [No. 6.] To Commission of 5 per cent, on receiving, advancing, and disburs¬ ing $1,908,599 97, is . 95,429 99 Interest thereon, 7 years 6 months, 50,100 67 --145,530 66 [No. 7.] To amount of difference between Govt. Stock, with which the Corporation and others similarly situated, were paid, and the current money $1,150, 000, advanced and borrowed by me on personal responsibility, 287,500 00 Interest thereon, to 1st June, 1822, at 6 per cent, quarterly, . 160,260 58 -447,760 58 To advance of Stock above par at the present *hae, 4 per cent. ..... 11,600 00 $670,811 62 12 ** 1 t 11 Contra, Cr. “ By amount of balance reported by Mr. Hagner, 11,022 57 “ Interest thereon, 9 years and 6 months, 7,329 00 -18,351 57 “ By Balance due Daniel D. Tompkins, 652,460 05 $ 670,811 62 In support of these several items in his bill of particulars he pro¬ ceeded to call the following witnesses : Benjamin Romaine Proved the handwriting of Col. Tobias Lear, accountant of the War Department of the United States, to the following letter : “ Department of War, Accountant’s Office, December 11th, 1814. “ Sir, “ Your accounts for payments, advances, &c. for the Militia of the State of New-York, in the service of the United States, in 1812 and 1813, have been stated at this office, and a balance of thirty-eight thousand three hundred aDd twenty dollars and twenty cents, found due to you, differing three thousand eight hundred and thirty-seven dollars and sixty-eight cents from your account, which difference will be shown by the inclosed statement. 1 have the honour to be very respectfully, Sir, your obedient servant, Tobias Lear.” Honourable Rufus King, Senator of the United States. The witness stated, that in the autumn of 1814 he had applied to the defendant, and representing to him the embarrassed state of the public treasury, the unprotected state of the city of New-York, and * id the inability of the General Government to protect it, had urged, from the peculiar situation in which Providence had placed him, that it was his solemn duty to make great exertions, and to assume great responsibilities. He had represented to the defendant that the state in a great measure looked to him for its protection, and that he must call out the militia, and find resources to pay them. The defendant had stated in reply, that he was already committed very deeply, and that if he should go farther in pecuniary responsibili¬ ties, he must do it at the risk of ruin : on which witness solemnly urged him to go forward and do his duty; and if ruin was the con¬ sequence, to consent to endure it, and look to the honour and the gratitude of his country. The defendant’s account with the General Government, up to the 24th of August, 1815, was read as evidence on the part of the defence. It was certified by Mr. Hagner to be a true copy of an account de¬ livered by the defendant at the Treasury Department. The District Attorney objected to this paper, as being ex parte evi¬ dence, and not duly exemplified :—and insisted that Mr. Hagner himself ought to be examined. The defendant’s counsel replied. The Court allowed the objection, and the paper was excluded. An exemplified copy of the defendant’s account at the Treasury, up to November 6th, 1816, was read as follows : “ Dr. — D. D. Tompkins, Gov. of N. Y. (pay . of the army) in ac. with the United States. “ 1816. To warrants on the Treasurer. “ For part of warrant 3772 on account of pay, $ 300,000 00 To D. D. Tompkins, for militia. “ For balance due by him on that account, transferred to his debit on this, 30,772 80 14 To D. D. Tompkins, for fortifications. fl For balance due by him on that account, trans¬ ferred to his debit on this, 140,000 00 To D. D. Tompkins, for camp equipments. “ For balance due by him on that account, trans¬ ferred to his debit on this, 25,000 00 To D D. Tompkins, for Qr. Mr. Dep. For balance due by him on that account, trans¬ ferred to his debit on this, 3,069 49 To D. D. Tompkins, for Med. and Hosp. Dep. “ For balance due by him on that account, trans¬ ferred to his debit on this. 13,079 30 To D. D. Tompkins, for contingencies. “ For balance due by him on that account, trans¬ ferred to his debiton this, 12,411 2S c< Balance due him, 2,192 77 £526,525 68 ce D. D. Tompkins, Governor of JV. Y. (pay. of army) in ac. with the United States. — Cr. “ By balance due him on settlement, 14th Dec. 1814, • . ... s . . 58,320 20 “ By Samuel H. Eakin, Dep. Paymaster. For the following sums advanced him on ac¬ count of pay, viz. This sum per receipt ©f the 7th December, 1814, Dec, 23d. 24th, March 13th, 1815, .• May 15th, 88,327 30 20.000 00 80,000 00 108 57 469 61 188,905 48 “ By Jonathan Bell, Assistant Dep. Paymaster Gene¬ ral. For amount advanced him on account of pay, per receipt of 25th March, 1815, . . 4,300 00 “ By Samuel Edmunds, Paymaster General of N. Y. Militia. For the following advances made him on account of pay, viz. This sum per Receipt of 24th Dec. 1814, $275 000 25th March, 1815, 20,000 --295 000 $526,525 68 M Balance due Gov. Tompkins, brought down, 2,192 77 “ Department of War. “ Additional account, Nov. 6th, 1816, “ (Signed,) Peter Hagner.” Samuel Tooker Testified, that, as agent for the defendant, he had called on the Sec¬ retary of War, on Mr. Vandeventer, and Mr. Hagner, and inquired if the claims of the defendant had not been presented and disallowed, specifying the claims now made ; and that it was admitted that they had been. Mr. Calhoun and Mr. Hagner said that the credits claimed could not be allowed without an act of Congress for that purpose. They told the witness that the defendant had claimed interest, com¬ mission, and the difference between stock and current money ; and that the claims had been disallowed. George Newbold, Cashier of the Bank of America, Stated, that in December, 1814, the defendant obtained from the Bank of America, a loan of $150,000 on his own note at four months, se¬ cured by the hypothecation of treasury notes to the amount of $165,000. He produced and read the original agreement with the bank in relation to this transaction. He farther stated, that under this agreement, the treasury notes, to the amount of $156,000, were sold by the bank some months after the loan became due ; and the balance of those notes, amounting to $9,000, returned to the defend¬ ant. That he was charged by the bank interest at 7 per cent. In reply to queries by the counsel on both sides, the witness added Shat the bank made the loan chiefly, but not exclusively, on the secu- 16 rity they derived from the deposit of the treasury notes :—that they held the defendant personally responsible for any deficiency that might happen on those notes : that they did not presume such de¬ ficiency, if any, would be very serious, probably not exceeding three or four thousand dollars : that they also had respect to the official situation and standing of the Governor, and to the public use to be made of the money ; and entertained the expectation that even in case of final loss, the General Government would not let him suffer ; at all events, that Government would be more willing to reimburse him than the bank. Witness further stated, that the bank afterwards made a further loan to the defendant equal in amount to the $4,411 25 cents, which he stated he had lost by the sale ; the Government not having (at that time) allowed him for the difference between the amount of sales, and the face of the notes ; and on which loan he paid bank interest: the bank made this last loan chiefly in view of such loss, as they conceived it an extremely hard case. A letter from Robert Brent, Paymaster General of the United States, was produced by the defendant, and read; dated July 20th 1818, in which the writer promises that a balance of $14,527 64 paid by the defendant to the troops on the western frontier, but not credited to him, for want of the receipt of Allen, a deputy paymaster, shall be passed to his credit. In connexion with this letter, a paper was read, alleged by the defendant to be an enclosure in the above, and therein referred to, as containing a certificate of Allen.* * “ Army Tay Office, City of Washington, July 20th, 1813. “ Sir, “ I have barely time to acknowledge the receipt of your two let¬ ters of the 9th instant, by Major Allen, district paymaster, with the inclosures. “ Major Allen will deliver a copy of a certificate, which he has filed with certain vouchers therein described, and which will be passed to your credit, although taken in his favour ; the circum¬ stances of the case, and the present state of alarm with us, have 17 The District Attorney objected to these papers, as not being within the act of 3d March, 1797, “to provide more effectually for the set¬ tlement of accounts between the United States and receivers of seemed to point to the mode adopted respecting these vouch¬ ers as the most advisable. With sentiments of great respect, I have the honour to be, Sir, your most ob’t. Serv’t. “ ROBERT BRENT, P. M. A. “ His Excellency D. D. Tompkins, Esq. Gov. of the State of New-York, Albany. “ City of Washington, July 20th, 1813. “ MEMORANDUM “ The following described vouchers, although taken in my name and favour, should go to the credit of Daniel D. Tompkins, Esquire, Governor of the State of New York ; the money paid out on them having been advanced by Governor Tompkins to A. Yelverton, a militia regimental pay-master. They are not charged by me, nor do 1 claim any credit for them. The reason of their being taken in my name is, that it was at the time contemplated to regularize them through me, by receipting to Governor Tompkins for their amount, as so much cash, and then charging the said vouchers in my accounts, and having them passed to my credit. Field and Staff, . . $1,931 43 Capt. Sprague’s Co. 1,421 43 Capt. Mulholland’s Co. . . . 1,855 76 Capt. Davidson’s Co. 2,453 15 Capt. Burgess’ Co. . . . 960 35 Capt. Mead’s Co. 1,868 87 Capt. Hopping’s Co. 2,467 29 Capt. Forbes’ Co. 1,869 36 $14,527 64 “ Fourteen thousand five hundred and twenty-seven dollars and • sixty-four cents. “ Nathaniel Allen, District Pay-Master of Militia of JV. York'. “Witness-— Nathaniel Frye, jun.” 3 M - . -V. ' .a W * 1 18 public money which declares that no item of set off shall be pleaded against a demand of the United States, unless it has first been pre¬ sented to an accounting officer of the treasury, and disallowed :— The Paymaster General i9 not such an officer. The paper alleged to be an enclosure is without official certification, and is not identi¬ fied as being the enclosure referred to in the letter. The defendant’s counsel contended, in reply, that the Paymaster General is an accounting officer within the meaning of the act ; he being the only officer with whom defendant could account for moneys advanced for pay. That from Colonel Brent’s letter, it appeared that the item claimed had been allowed, but from the account as stated by the treasury, it had been omitted to be credited. The Court admitted the objection of the District Attorney, and de¬ cided that these papers must be excluded. George Griswold Was a Director of the Bank of America in 1814. It was clearly understood that defendant was personally liable for the $150,000 loaned by the Bank. The defendant was to make good any deficiency on the sale of the government securities. The amount of Treasury notes was about $160 000. The Bank thought they were more sure of getting the amount from government by holding defendant as a sort of hostage. They had respect to his official situation. Witness thinks that if defendant had presented the treasury notes of $165,000, for his private use, it is probable the Bank would have doubted whether they were likely to make, by the transaction, the amount of the discount: but they understood the money w as to be appropriated to the public defence. The differ¬ ence between the Bank interest on the loan and the interest drawn by the Treasury notes was charged to defendant’s private account. Witness knows that on the settlement there was a balance due by the defendant to the Bank—thinks it was about $4,000. The Bank loaned this amount afterwards to defendant on his private per¬ sonal security, because they thought the case extremely hard. 19 Gen. Nicholas Fish, Chairman of a Committee of the Corporation of New-York, called the Committee of Defence , In reply to queries of the defendant stated, that in December, 1814, the Corporation, through the committee, had applied to the Governor to call out the militia for the protection of the city ; that witness had urged him to do so, and had pledged the honour of the corporation to pay them. About 20,000 men were called out. When asked whether the Corporation had redeemed the pledge, witness replied that he understood that the troops had been paid, or nearly paid. JoSIAH ShIPPEY Testified to certain books in MS. being true copies made by himself of correspondence between the defendant and different officers of government. The District Attorney objected to these books being read, as the original letters were in court, and could be produced. The objection was allowed. Defendant’s counsel then produced a statement of his own ac¬ count, said to have been presented by him at the Department of War, and now purporting to proceed from that department, but not duly exemplified, and, in support of its authenticity, called Samuel H. Aiken, Who testified that the paper was in the handwriting of his brother, a clerk in the War Department. The District Attorney objected to this paper as incompetent evi¬ dence, and the Court excluded it. Henry Eckford, Naval Architect, Testified, that he had had extensive dealings with the government during the late war ; that they had readily consented to submit the 20 accounts in dispute to arbitration ; and that a balance of $494,000 awarded by the arbitrators in his favour was promptly paid; but government had allowed him neither interest, nor any Gredit for loss on treasury notes. Davtd Dunham Had, at d fife rent periods, during the years 1813 and 1814, en¬ dorsed for the defendant for sums to be advanced by the banks : at one time, the note endorsed was to pay ior the transportation of arms, either to New Orleans or to the frontier of this state. He has understood that defendant’s property in the city has since be-msoldon execution, by the Manhattan Bank, for the sum then borrowed. [District Attorney objected to this r as hearsay testimony, and it was excluded.] Witness was at one time employed by Cal¬ lender Irvine, Commi.-sary General, under a written agreement, to purchase a certain quantity of blankets for the army, and was allowed by Irvine, a commission of 2i per cent. Government allowed him do interest ; and the interest exceeding the commission, he was a loser by the bargain. It was usual, in agencies of that kind, for mer¬ chants to allow that commission. He continued to purchase at times for Cox and Irvine, until Mr. Russel was made Commissary of Pur¬ chases. When defendant applied at a certain time to witness, to endorse for him, he stated that it was for a balance arising from de¬ preciation of treasury notes ; he thinks at the Bank of America. This testimony was received without objection. Major Darby Noon Was Deputy Quarter Master General of the State of New-York. from \pril to October, 1812, and all the Quarter Master’s business was done through that department. He paid out, by order of the defendant, $50,000. He settled his accounts by vouchers to the War Department only. Colonel James B. Murray Has examined the books of the Corporation ; the Corporation are 21 credited by Government with brokerage ; and charged eighty, for every hundred of the six per cent, stock. The amount expended by them is, $1028 183 75 For which they received 6 per cent, stock, Interest, . . Treasury notes, . Cash suspended, . 1100,009 87 10,816 25 53,000 00 9,173 85 1172,999 97 Government voluntarily sent on these funds on 5th June, 1815; by which the Corporation made a clear gain of $162,000. This testimony was objected to, because the books themselves ought to be produced ; and the Comptroller of the city examined. The ob¬ jection was allowed to be valid, and the account withdrawn. [Here the Court adjourned.] TUESDAY MORNING, JUNE 4th. [Testimony continued.] Samuel H. Aiken, Paymaster for District of JYew-York, Received from the deft, and paid to the Jersey militia, $100,000 do. do. do. Regular army, 100,000 He understood that there was paid to the cadets at West Point, and the foundery at Springfield, 25,000 The latter part of this testimony was objected to by the District Attorney. Witness said if the Jersey troops were paid by the Corporation, they must have been twice paid ; for witness paid them once with money received from defendant. All the above sums were paid in current money of the city of New-York, in drafts on the banks : no moneys were ever paid by him in depreciated currency. Recollects defendant’s advancing money to Colonels Post and Russel. Defend¬ ant was very much pressed for money for the public exigencies. Benjamin Romaine Was Quarter Master; his department was occasionally in distress for funds ; and witness borrowed of the Manhattan bank, by order 22 of his commanding General. Lewis, $5000. After two or three ap¬ plications, Government allowed him the discount, which he paid the bank. The bank refused to lend the money to Government, but lent it to witness, on his note with an endorser. Robert Swart wout In 1814 was Quarter Master General of the United States; he made a Government draft of $100,000 on the bank of Utica, which he understood from Mr. Monroe was paid with funds provided through the defendant; it was drawn in August, 1814, and paid in November of the same year. In the course of the war, witness borrowed money on treasury notes, and lost three thousand dollars by the depreciation ; which sum has since been allowed him by special act of Congress for that purpose. George Newboi.d. The loan at the Bank of America was a private concern ; no account was opened with the Government. Samuel Flewwelling Was Cashier of Manhattan Bank in 1814; recollects two loans made to the defendant, but not accurately as to the date, or amount; believes it was about December, and that the sums were $100,000 and 50,000. The bank received i per cent, on these loans, which was given gratuitously, as a compensation for the trouble incurred in drawing the necessary papers, &c. (The witness was entitled to a part of that gratuity, and recovered it from the bank, by a suit at law.) The loans were made on treasury notes, which the bank was authorized to sell at par ; the proceeds were deposited in bank, to the credit of Government, upon which Government drew. The treasury notes were sold in 1813. The bank had one third of the Government deposits. The bank re¬ ceived only the above i per cent, on the above loans ; but great advantages from the United States ; as at least one third of the deposits of the United States were there made. Jacob Barker. In 1814, the General Goverment found very great difficulty in raising money for the prosecution of the war. I borrowed large 23 sums for their use and had in all cases to give security in addition to the stock received from them. Of the City Bank I borrowed half a million of dollars, and had to pay them fifty thousand dollars of my own money in addition to all the stock I received from govern¬ ment for the said half million of dollars, to secure them against de¬ preciation of the government stock : and to the Mechanics’ Bank I mortgaged my real estate for the same object. These difficulties were greatly increased by the conflagration of the capital, which took place on the 24th of August, 1814 ; also by the government failing punctually to pay the interest on the national debt, and to redeem the Treasury notes as they became due ; and this was greatly aggravated by Mr. Dallas’ report to Congress, in which he declared the nation had dishonoured its own paper, and, eventually, that the nation was bankrupt; so deep did he make the impression, that he found himself totally unable to borrow money, for which purpose he visited New York the latter part of 1814, or early in 1815. Witness, however, thinks that a loan, to a moderate amount, might have been obtained by a competent agent, on the hypotheca¬ tion of an amount of Treasury notes sufficient to make up the de¬ preciation, and to guard against further depreciation, viz. that on $200,000 a loan of $150,000 might have bden had. Witness ne¬ gotiated Treasury notes for the defendant at a considerable dis¬ count : this was at the close, or immediately after the war. William Welling Went on to Washington the 24th of August, 1816, as agent for Defendant, to obtain a settlement of his accounts, and remained there a longtime, endeavouring to effect that object. [The paper in this cause, called the Defendant’s account current, is a transcript of an account which witness presented to Mr. Hagner, as witness believes.] In the fall of 1816, Mr. Hagner observed to witness, that he had better leave Washington, as there was no use in his waiting there. Defendant urged him not to do so until he had obtained a settlement, as Defendant’s character was suffering for want of it. Witness did not succeed in getting a settlement. Mr. Hagner asked him if he had a personal knowledge of the items of the account he presented, 24 to which witness replied he had not. Mr. Hagner said that there would be due the defendant about eleven thousand dollars, but that it could not be paid until farther papers were received. On cross- examination, the witness could not identify the paper shown him, as a transcript of the account he presented to Mr. Hagner, or identify the items therein contained. Witness was asked by a juror, whether he considered the Treasury Department as seeking to evade a set¬ tlement—to which he replied that he did not. Here the testimony rested on the part of the defence. Thomas R. Mercein Was examined, on behalf of the United States. He was formerly Comptroller of the city, and Treasurer to the Com¬ mittee of Defence in 1814. The total amount expended by the Corporation, for defence, was $947,570 57. Of this amount they were allowed by government $933,000 90—the balance being sus¬ pended. Witness went to Washington, on behalf of the corporation* to effect a settlement. When the corporation advanced the money, no express agreement had been made with government, but there had been a general understanding that whatever was properly dis¬ bursed should be refunded. When witness set out for Washington, in Dec. 1814, government 6 per cent, stock had sunk as low as 77 per cent. He pressed the treasury for stock at 80 per cent, (except $53,000 of treasury notes.) He claimed a subscription to the loan of twenty-five millions, on the same footing as those most favoured. Mr. Dallas at first refused to concede to such arrangement, but referred the witness to the President; who finally consented, and the transfer was made accordingly. This arrangement was effected in January, 1816, and a written note of it made at the time by the witness, but no writing was signed on behalf of the govern¬ ment. The stock was received five days before the peace. Arrears of interest on the stock were also received, and nearly all the suspended items in the Corporation’s account were subsequently allowed. A supplemental account, of about $27,000, was ren¬ dered by the corporation to government, for injury done to land of theirs, the amount of which could not before be ascertained. This was allowed and paid. No interest was allowed by govern- 25 meat in any of the settlements. The whole amount, however, was expended in a short time, from August, 1814, to January, 1815. The Corporation raised the money they expended by loans from individuals, on bonds drawn by the Corporation, which bore interest at 7 per cent.—accruing, though not stated to be payable until 1st March, being half yearly. The account, though before withdrawn by the Defendant’s counsel, was exhibited to the witness, and he was examined thereon, and the items of which he stated to be sub¬ stantially correct. The Corporation books, showing the general defence account, were produced and read. Testimony resumed on the part of the Defence. Col. Richard Platt Had no connection with the army before 31st December, 1817. When he settled his accounts, it was by reporting to the Paymaster General, and the accounts were by him sent to Mr. Lee. Defendant produced and offered to read the correspondence between him and the Treasury Department. WEDNESDAY MORNING, JUNE 5. The following letters from the War Department were produced and read :—• (COPY.) “ Department of War, Sept. 1st, 1816. “ Sir, “ I have the honour to acknowledge the receipt of your letter of the 25th ultimo. All your accounts that were on the files of this office have been sent to the accountant, with directions to credit you with the whole amount of the treasury notes deposited by you with the several banks, and to hasten the settlement of the accounts, that you might be delivered from any farther responsibility. 4 26 “ I avail myself of this opportunity, to return to you the thanks of the President, as well for that zealous and able co-operation in supporting the measures of the general government, which, in your official character, you always so promptly afforded, as for the inde¬ fatigable personal exertions, by which, at the most critical periods, you were, in a manner so honourably for yourself, and so usefully for your country, enabled to support the public credit within the state of New-York. For myself, sir, I beg you to accept the assu¬ rances of the highest respect “ I have, &c. (Signed) “ G. Graham, Chief Clerk. “Gov. Daniel D. Tompkins, New-York. “ I hereby certify, that the foregoing is a true copy from tire records of the War Department. In testimony whereof, I have hereunto set my hand, and have caused the public seal of the said department to be affixed, this twenty-seventh day of May, in the year eighteen hundred and twenty-two. “ J. C. Calhoun.” (COPY.) “ Deparraent of War, April 10th, 1815. “ Sir, “ 1 have the honour to acknowledge the receipt of your letter, requesting to be released from the command of the third military district, and you are released accordingly. It is with great pleasure I add an expression of the President’s thanks, for the patriotic, active and able support, which you have on all occasions given to the measures of government, during the late war. “ I have the honour, &c. (Signed) “ A. J. Dallas. “Gov. Daniel D. Tompkins, of New-York. “ I hereby certify, that the foregoing is a true copy from the records of the War Department. In testimony whereof, I have hereunto set my hand, and caused the public seal of the said depart¬ ment to be affixed, this twenty-seventh day of May, in the yeai eighteen hundred and twenty-two. “ J. C. Calhoun." Here the evidence closed. 27 SPEECH OF THE VICE PRESIDENT. The Defendant then proceeded to sum up the defence, in per¬ son, in a speech of which the reporter regrets he has been able, to recover but a small part. He dwelt at great length upon the circumstances in which he found himself at the opening of the late war ; the pressure and multiplicity of the duties which subsequently devolved upon him, “ while called to administer the civil and military government of a million of people, pressed on every side by veteran armies, and commanding at the same time upwards of twenty thousand troops in the service of the United States.” He stated expressly, that the advances of public moneys had been unsought by him, and that it was in consequence of urgent applications from Washing¬ ton, (in letters which he offered to produce,) he had consented to become first the depository of those moneys, and then the organ for their distribution : fearing the accounts might run into con* fusion, he had repeatedly applied for an accountant to be allowed him, but without success :—had been held accountable, against his most earnest remonstrance, for the expenditures of every subordi¬ nate officer it became his duty to employ :—that relying on the plighted faith of the Corporation, he had, at their own urgent soli¬ citation, brought twenty thousand men to the defence of this city ; and that the Corporation had broken their faith, and betrayed his trust :—that he had long apprehended his affairs were in danger of embarrassment, and had stated to Mr. King, that if he went on, he must be ruined ; but that he was unable to resist the eloquence of that gentleman’s patriotic language ; and the urgent and evident pressure of the public necessity.—That he had lost large sums through the want of legal vouchers, which, in the hurry of the moment, he had neglected to take, or had subsequently mislaid : having been constantly assailed, on every side, with unceasing and importunate applications for money for the public service :—he had generally endeavoured to secure duplicate receipts ; one set of which had been forwarded to Washington, and the other retained in his own hands; that when he had afterwards written to the treasury for a statement of his accounts, he had, to his utter amazement, received a reply, stating, that there were there no documents to support the credits he had claimed ; in consequence of this, he had sent on by 28 a confidential friend, the duplicates he had, till then, intended to reserve for himself, (the receipt of which had been acknowledged,) thus putting all proofs out of his hands, and surrendering to the honour and uprightness of the Government the whole settlement of his account ; nor had he so much as seen a statement of it, until a few days before the present suit came to trial. With respect to the double credit on which the present action was founded, it arose, as he had already explained, from a mistake, not of his, but of the Department’s own. The mistake had been confessed, and he had received a letter of apology from Mr. Hagner, which was then present in court, and could be produced, if the jury wished to see it. He had always been desirous of a settlement ; had sought it, pressed it, urged it, entreated it; but that while others were set¬ tled with, he had constantly been put off, his account kept open, and his name covered with obloquy, as a public defaulter. “ Yes, Gentlemen, for want of the settlement of these accounts, my name was loaded with innumerable calumnies ; falsehoods in every form, and daily increasing, were heaped upon it from every side ; the billows of calumny were rolling over my head, mountains high, and spreading from Maine to Georgia, and from the seaboard to the farthermost mountains of the interior ; and, to crown the whole, there was I, compelled, as I occupied my seat in the senate, to hear my name read before my face, in the list of public defaulters ; and that for the very sum which I had, on my own responsibility, borrowed from the Manhattan Bank, for the transportation of arms to New-Orleans, (and for which every dollar’s worth of my city property has since been sold by execution,)—I had to hear it—to hear it in silence.” The defendant then went on to comment upon the several parts of the testimony ; and having stated many things in explanation, which cannot here be detailed, he adverted, in the close, to an ob¬ jection which might be urged against his claim, from the fact that it had not been advanced at an earlier date ; to which he answered, “ Tell me not, gentlemen, tell me not, I beseech you, when it was in my power, and the money was in my hand, thatt/ieul should have deducted my just dues; that then I should have exacted and taken my pound of flesh ; from whom ?—a poor, emaciated, distracted 29 country, which I at least loved, and which was already reduced to mere skin and bones. If, at that time, I did not deal with my coun¬ try as with a sharper, who, when his disasters were ended and his misfortunes over, would recoil upon his benefactor and stab him to the heart—if, when its destiny was in my palm, the whetted knife in my hand, and the helpless debtor laid prostrate at rny feet, I did not, like others, carve out my pound of flesh, reproach me not with it. If this even were a grievous fault, have I not, gentle¬ men, grievoifsly answered it ? But it was no fault. Had I done this, there would have been a deficiency of two or three hundred thousand dollars. The cadets of your nation would have been left to freeze and hunger in the Highlands ; the manufactory of arms at Springfield, which was already at a stand, and on the eve of mutiny, must have been broken up ; the gallant army of Niagara, that had so freely devoted its blood for you the preceding campaign, would have been disbanded by starvation ; and upwards of twenty thousand men in arms, irritated and insulted by the violated faith of your cor¬ porate authorities, and determined not to leave the city unrewarded whilst there was money in the vaults of your Banks, would have been let loose upon this place. I shudder when the probable con¬ sequences are revived in my recollection. Little did I think (how could any generous mind anticipate ?) that when the wounds of a bleeding country were healed, when it was replaced upon its feet, its constitu¬ tion invigorated, its health restored—when its honour and fame abroad and its prosperity at home were exalted, when its finances were replenished and its coffers full, when it was revelling in green pastures, and indulging in the refreshing shades of the rich valley's, that I, who had regarded myself as one of its watchful and faithful attendant physicians in its adversity, should be singled out as the victim of its persecution ; that I alone, with my family, should be outlawed from its justice, and be banished and driven from its society, to roam and mourn and starve upon the barren, bleak mountains of despair ! I did not so anticipate ; and 1 thank my God 1 could not. The topic, however, is unwelcome, and I dismiss it. “Gentlemen, I am no orator ; but, as you all have witnessed on this occasion, (and most of you, some of you I may certainly say, . 30 do know from long acquaintance and experience,) a plain matter-of- fact man, that speak and act right on what I know, feel, and am able to prove. But had my lips ever been touched by a live coal froni Minerva’s altar, or had there been given to my tongue that force and felicity of utterance which Providence denies to all but a ehosen few, and would my wounded and insulted feelings sustain me through the sad recital, without melting me to tears, ox suffocating me with indignation, I could recount a long ten years’ series of fears, anxieties, perplexities, sorrows, sicknesses, blighted prospects, and wounded feelings, inflicted by these accumulated and protracted wrongs, on an affecticnate (and, I hope I may be permitted to add, an amiable) family, as well as myself, that would, harrow up your souls—would give a tongue to every pang we have suffered—and make the very stones rise up and cry aloud for justice !—I forbear ; as well because I am inadequate to the task, as because I assured you in the opening that I would not assail your passions, or ask your sympathy or compassion : both of which I scorn. I seek merely that plain, rational, and simple justice, which the Plaintiff in this cause Dromptly and voluntarily meted out to all others ; and that I demand as a right. “ Before I sit down, let me caution you upon one subject. When public calumnies are propagated, and the individual slandered is silent and resigned, it is but too common for the public mind to be generally and unfavourably impressed, and it is difficult for jurors to devest themselves of feelings which these expressions have made. Permit me, therefore, Gentlemen, to caution you against these im¬ pressions. If, influenced by them, you should finally do me injustice, you will inflict but little additional pain upon me or my family : we have already suffered all that the utmost stretch of human patience and kindness can endure. But beware, Gen¬ tlemen, lest, influenced by considerations of this nature, or by political or personal feelings, to which my various public sit¬ uations may have exposed me, you do not place beneath your own couch a thorn ; which, though it may not bud, or blossom, or disquiet your peace, for a moment, an hour, a day, a month, a year, or even for a season, yet let me be the faithful herald to proclaim to you now, that it may become a most unwelcome tor¬ mentor of a dying pillow.” 31 MR. HOFFMAN’S SPEECH. Josiah Ogden Hoffman, Esq. opened the defence, on the part oi the Vice-President, and addressed the Jury to the following effect:—■ Genteemen of the Jury, After the able and eloquent appeal which has just been addressed to you, I rise with diffidence, and not without embarrassment. The elevated station of my client; his long and eminent public services ; the unexampled, but deserved, popularity he has enjoyed ; the part he has acted in events associated with the feelings of every man that hears me ;—all these things, taken in connexion with the circum¬ stances in which he is this day presented before you, are calculated to produce emotions that cannot be suppressed. A citizen, who, in the hour of his country’s extremity, rendered her such services as it was out of the power of any other individual to accomplish ; a patriot, who '■saved this state when it was threatened with invasion—who redeemed the credit of the general government, when its own offi¬ cers pronounced it bankrupt—the darling of the people—and holding, by their free suffrage, the second station in this republic—stands before you a ruined man. His large patrimony, increased by long professional toil, seized and sold ; the prospects of his family blighted and gone; his health undermined ; his good name vilified ; and, though at this moment Vice-President of these United States, unable to employ counsel to defend his cause. Yes, gentlemen, I appear on this cause , as does his other counsel, unsolicited by him, a volunteer on behalf of the most injured of men. I stand here, because 1 am resolved that no individual, with such claims upon retributive justice, shall want an advocate because he is too poor to employ one. Do you, on hearing this, revert to his public salary ? It is stopped ; stopped for the very balance now unjustly sued for. For this balance, (by their own confession an error of the treasury,) he has been reported a public defaulter ; and, by the provisions of a statute, passed perhaps rashly, and certainly most severe in its operation, his salary, the only remaining support of a large and most amiable family, is suspended till this account is set¬ tled. Thus is he left, in the midst of embarrassments incurred by his exertions for the public credit, without a dollar to meet his daily expenses ; out of the hundreds, and I might almost say the thou 32 sands of agents, who made fortunes by the public during the late war, the only man who has come out of that war impoverished and a bankrupt. I have known Mr. Tompkins long ; I knew him from the beginning: I well knew his talents, his integrity, his goodness of heart: I knew, also, his carelessness. Regardless of the value of money, he never, in his own concerns, used that caution and observed that exactness in what relates to it, which was due to himself, and, I will add, to his family. It is this unhappy negligence which has involved him in all the difficulties he has since met with. Gentlemen, the investigation now submitted for your decision, is one desired and sought by my client. The suit has been brought at his own solicitation ; and, unless I am grossly deceived, its result will be such as to administer at least some solace to a case of unmerited and unexampled hardship, which nothing can effectually remedy. Gentlemen, in order to a right consideration—indeed, to any thing like a clear understanding, ef the case now submitted to you, it is necessary to advert to the situation of the Defendant during the eventful period of the late war with Great-Britain. He was then Governor of the greatest state in the Union—a state which contain¬ ed in its metropolis the highest bait for the cupidity of an enemy, and which presented, in its extended line of frontier, a theatre for the most momentous military operations. This state, at the time of the declaration of war, was almost literally defenceless- Though warned, and for three years solicited, by the letters of my client, the general government had made no provision whatever to meet the emergency ; and when the troops were called out into the field for actual operation, they had not a tent nor a camp kettle. The whole responsibility of defending the city—of supplying the army— and supporting the public credit, fell upon the Defendant in this cause. To him the government looked ; to him the people cried. The advances of the public funds were by him wholly unsolicited; on the contrary, they were pressed upon him ; and, in answer to the most earnest solicitations of the government, he took a respon¬ sibility such as no man before or since ever assumed. He did it not blindly. You have heard from Mr. King, that my client stated 33 * 4ft to him the risk he was running, and the impending danger. But that distinguished Senator met his remonstrance with the voice of true patriotism : “ If ruin must ensue, let it ensue. Standing where you stand, it is your duty to be ruined for the Republic ; better that one man be ruined than that the Republic should suffer. Forget your¬ self—forget your family ; trust to your country for safety ; go on and do your duty.” Gentlemen, to this appeal there was but one reply ; you find it in the toils, in the assumed responsibilities, in the subsequent embarrassments, and in the final ruin, of my client. I have said that this suit arises wholly, and confessedly, from a mistake of the treasury. It is for a balance twice credited to the Vice-President. Did he demand it to be twice credited ? No ; he did not even know of the credit’s being given. You have heard his explanation. He advanced money to Major Yelverton, for the pay of troops under Gen. Porter; the sum was credited by the auditor of the treasury to Yelverton’s account, not to that of the De¬ fendant. Subsequently, by order of the comptroller, the sum was passed to the credit of Gov. Tompkins, as in justice it should have been at first. Thus it appears as a double credit—as such is reported ; and for this my client is proclaimed a public defaulter ; for this his salary is stopped, and he is shamed before the world. Did he ever claim that this balance should be allowed in his favour ? Never. Does he now claim it ? Not at all. He allows the balance to be justly charged against him. But he does claim that, as matter of set off, he shall be allowed interest on other balances long due to him, and the ordinary mercantile commission on moneys received and paid ;—received without solicitation—paid at the highest personal risk—and the receipt and disbursement of which have proved his ruin. The first item is for interest on a balance admitted by the Trea- sury Department to be due to him on the 14th of December, 1814. The admission is under the hand of Col. Lear, and the document in support of it has been satisfactorily proved. You will observe, gentlemen, that this is not the full amount then claimed by the de¬ fendant ; his demand was for upwards of forty-two thousand dollars ; the Department suspended thirty-eight hundred of that amount; 5 34 and the interest now claimed is only on the balance which was liqui¬ dated. The expenditures which went into this account were made in the autumn of 1812 ; they were admitted by the treasury and liquida¬ ted in 1814 ; but not paid until the final settlement of 1816. Here then was a just debt, of upwards of thirty-eight thousand dollars, un¬ settled for four years. Have we not a right to the interest for that time ? But you will he told that the government never allows in¬ terest. And why not, pray ? It is not the usage of the Treasury Department. But what have we to do with iheir usages ? Where is the law for such a usage ? On what authority does it rest ? Is the arbitrary fiat of the Secretary of the Treasury to become the law of the land ? When one merchant owes another a balance, and defers payment, the law of every country allows interest on the debt; why should not the same law apply to the government which binds an individual ? Shall the goverment have power to say to me, sir, I owe you a just balance of thirty eight thousand dollars, but I shall not pay it you for these four years to come ; nor will I allow you a cent of interest ? If they may defer four years, why not twenty—why not an hundred ? and who can be safe in dealing with his country, or who. under such circumstances, will dare to become her creditor ? During the whole period for which we here claim interest, the defendant in this suit was a creditor to his country—a creditor in heavy balances, raised by his influence, and advanced by his patriotic zeal, in behalf of her embarrassed credit and failing resources. The debt is more than a just one ; and yet, when asking simple interest on the time he was kept out of it, he is to be answered, “Sir, the Treasury pays no interest!” Gentlemen, from such a reply we appeal to you : we have demand¬ ed a judicial investigation, that we may take our cause from the de¬ cision of a government officer, and lay it before a jury of freemen. You will say this claim is just; and though we may be precluded from enforcing right against the government, we must insist upon the privilege of having right declared. 1 w ish, however, to be distinctly understood, that we claim interest on this, and on every other item of the account, on strict legal grounds and if it should appear, from the transcripts themselves, that the defendant had funds in his 35 hands belonging to the United States, during the period for which interest is demanded, I readily admit the claim for interest is not to be supported. The second item of set-off is for interest on a balance of a lit¬ tle more than four thousand dollars, lost by the defendant on the sale of Treasury notes by the Bank of America, but since allowed to him by the government. The circumstances under which this loss was incurred have appeared from the testimony. I shall not now insist upon them, since our demand is not for the loss itself, but for interest on this amount. To have refused to reimburse a loss, arising under such circumstances, would have been injustice gross and palpable ; but why is it less unjust to refuse my client the interest accruing, and of which he was deprived for more than five, years ? We ask that interest from you. The third item in our account of set-off is for a sum of money paid by the defendant to troops upon our frontier, but for which he was deprived (innocently on his part) of the requisite sort of voucher. Of the payment of the money there cannot be a doubt—* nobody pretends to doubt it ;■ but owing to the absence of the regu¬ lar deputy paymaster, (whose individual receipt alone could be al¬ lowed as a regular voucher,) a receipt was taken at the time from another in his name. Mr. Allen, the deputy paymaster, alarmed by the strictness of the accounting officers of the Treasury, refused to substitute his own receipt for that which had been taken in his name, but promised to explain the facts when settling at Washing¬ ton. Had we not been precluded from laying Mr. Brent’s letter before you, we should have shown that such explanation was made, the transaction understood, and the balance acknowledged ; as it is, we ask where is the credit of this payment in the defendant’s account ? The 4th item is for a charge of $20,000, made, as we contend, by mistake in the Government account against the defendant. You have seen by a letter from Col. Lear, the accountant of the war office, that in December, 1814, a settlement was made of the de¬ fendant’s accounts ; the balance liquidated, audited, and duly stated o6 by the proper officer. The balance’ allowed, it is true, was less than that claimed by my client ; but, however disappointed by having any part of his account suspended, he relied, at least, upon the balance certified as a sum settled, and no more to be called in question. He had a right so to rely. But lo ! in 1820, six years after, he finds himself charged with a treasury warrant for 20,000 dollars, bearing date before that settlement, many months before it, and this without a word of explanation. Gentlemen, we resist the demand. We say it is against the face of their own document—it is unsupported by a particle of proof—we know nothing about the charge—and, without further evidence, we refuse to allow it. To establish this mistake we can only rely on the transcripts fur¬ nished by the United States, and read in evidence by the defend¬ ant, for all other testimony has been excluded ; and on these trans¬ cripts only is your verdict to be founded. With respect to the fifth item, amounting only to a little more than three hundred dollars, it is not necessary to detain you. It is merely the interest on a balance of about two thousand dollars, audited in 1814, and not paid till two years afterwards. If you acknowledge the justice of charging interest at all, this item follows of course. But now, Gentlemen of the Jury, we come, in order, to a much larger and more important demand than any we have hitherto dis¬ cussed ; yet a demand so simple, that I scarcely know what to say on it, but merely to state it. The moment it is mentioned, it commends itself at once to your justice and to common sense. It is a charge of commission on the receiving, advancing, and disbursing of public moneys. It is called commission ; but, more properly speaking, it is to be considered as an allowance for work, labour, and services, and for money expended and disbursed. We have already adverted to the situation of my client when the declaration of war burst like a peal of thunder on the public ear, and committed the nation to an arduous military contest, with almost no preparation for such an event. You have seen the state of public credit which ere long ensued. You have seen your country, while covering her sword with laurels in the field and on the wave, at home a prey to 31 distraction and distrust; her coffers empty, her credit gone ; the offi¬ cial organ of the government declaring in his place that its engage¬ ments could not be met; in a word, that it was bankrupt. At that dark and trying hour, when the disaffected eastern states were com¬ bining to palsy the public strength, and New-York, the first state in the confederacy, stood, like the Jewish Prophet, between the dead and the living—in that hour of peril, in that crisis of decision, you have seen one man, by his efforts, his influence, and his personal sacri¬ fice, at the risk of ruin, and the hazard of his all, raise for her relief seven hundred thousand dollars in a single month. You have seen him create a patriot army for the defence of this metropolis, and pay when he had raised them. You have seen him hurrying through the storms of winter from post to post; and, (concentrating in his own person the duties of a host of officers,) you have seen him involved in the details, as well as in the larger concerns, of the departments both of war and of the treasury. You have seen him, under all this multifarious public toil, held to account like the hum¬ blest deputy paymaster in his own employ. Though he had every body to employ, and every body to pay, you have seen him chained down to all the rigours of the treasury : nothing taken for granted; nothing allowed for ; nothing short of the plenitude of legal proof admitted to cover a single dollar’s expenditure ; so many items, so many vouchers, and those of a specific kind, or else a personal and irrevocable loss ensuing. You have seen him, at an expense like this, sustaining the sinking credit and supporting the tottering interests of the general government; and you have heard him, in the close, hailed by that government as the saviour of his country’s credit. Gentlemen, would it be very surprising if, under circum¬ stances like these, a large balance had appeared in his accounts utterly unexplained ? But is it not incredible, is it not a miracle, that, after the passing through his hands of more than a million and a half of public moneys, to persons in places, and for uses innumera¬ ble, the utmost that is pretended to be brought against him is the paltry sum of eleven thousand dollars !—and even this amount resting, as the government confesses, on an error of their own ? And now, I ask, is it much if, after ruining himself, ahd involving his 38 relatives by such a course, he demands from his country the com* mon allowance from merchant to merchant, on a purchase of goods or a negotiation of exchange 1 You learn from the testimony that government have made asimilar allowance tc others. Mr. Dunham had a commission; Mr. Romaine had a discount; even the very banks, who refused to trust the government, have, though indirectly, been remunerated by the government business. Why, of all who served the country, should this man go without common justice ? I come now to the last item of our demand. It rests, in substance, on this simple principle—that my client should not be refused as advantageous a settlement of his accounts as was readily granted to others, and those confessedly less meritorious. 1 refe*-to the settle¬ ment with the Corporation. We all know how that body felt and acted toward the general government. You have had it in evidence, that after solemnly pledging their honour to the Governor that if he would raise troops to protect the city they would see them paid, they betrayed his confidence, and left him to advance a hundred thousand dollars of the very debt they had solemnly engaged to pay. Yet with this body the government settle promptly, and most advan¬ tageously. They obtain stock at 80 per cent ; all suspended items are allowed them-, a second account is without difficulty pass¬ ed, and they come out of the transaction, not only whole, but actual gainers, to the amount of one hundred and sixty thousand dollars. My client did more—infinitely more ; but bow does he come out ? The Corporation were defending themselves, their homes, their children ; he was defending the State at large, the cause of the Union. Yet they get a hundred and sixty thousand dollars—while all his property passes under the hammer. Is this fair ? is this righteous ? is this even-handed justice ? No, gentle¬ men ; if any difference were made, surely it should be in his favour. That, however, he does not ask ; he demands only that the differ¬ ence between government stock and current money should be allowed to him, as it was enjoyed by others. [Mr. Hoffman then took up the exhibit, containing the Defend¬ ant’s whole account, as it stands on the books of the treasury ;* * The summary of this account is given page 13 of this Report—its subordinate details are too voluminous for insertion. 39 explained the manner of keeping the treasury accounts, and reviewed the several items of debit exhibited against the Defend¬ ant; how appropriations for one department of expenditure, proving too great for their original object, were carried in part to another department, which had too little ; how it consequently became necessary to institute fictitious charges, in order to balance these different accounts ; and, although this might be unavoidable under the circumstances, and did not affect the final settlement, it presented to one unapprised of the mode of accounting, appearances which were calculated to mislead them. (This review is here omitted, as it would be unintelligible without the account itself.) With these general remarks on the testimony, I shall here submit the cause. You cannot but be conscious that the station you occu¬ py is not only one of interest, but full of the most solemn responsi¬ bility. T© you my client makes his last resort. After ten tumultuous years of solicitude and toil ; after having been repulsed, where he ought to have been welcomed ; proclaimed a defaulter, where he ought to have been magnified as a benefactor; shamed and sued, where he ought to have been honoured and rewarded-— it is to you he has to look for solace and a shield. You can both soothe and protect him. Your verdict has the power, and will have the effect, to convince this nation, that, so far from being a public defaulter, he is now, and has been from the beginning, a public creditor. Nay, more, Gentlemen—the voice of tha,t verdict will speak at Washington ; it will be heard in the halls of the national legislature ; and it may prove the instrument of obtaining, by a tardy justice, a support for his declining years, and a portion for his innocent children. 40 MR. EMMET’S SPEECH. Thomas Addis Emmet, Esq. then followed on the same side, and spoke in substance as follows : Gentlemen of the Jury, You will believe me when I assure you that I have sel¬ dom in my lifetime risen under greater embarrassment than I feel at this moment. I am to follow the Vice President:—you have heard his eloquent opening of the defence—you have listened to its powerful and pathetic close.—I confess myself unable to add any thing that is worthy to follow it. He has told you that his counsel have, on this occasion, freely proffered their services. I could have wished he had kept that to himself; but since he has thought fit to disclose it, I will confess that I was actuated in so doing, not merely bv a profound conviction of the justice of his claim, but also by a deep sense of personal obligation. To the unso¬ licited kindness of the defendant in this cause I owe the only- public appointment 1 ever received—an appointment as unexpected on my part as it was kind and flattering upon that of the govern¬ or, and which made it my duty, as it is my pleasure, to cherish a sense of gratitude, and gladly to embrace the first occasion to evince it. Still, however, did the defendant in this cause appear, to-day, in cir¬ cumstances such as he once has known :—was he now in all his pride of influence—in the blaze of fame—on the summit of power, sought, caressed, flattered, feared ;—having Dot only all things for himself, but dignities and emoluments to confer upon others, 1 should have hesitated in offering him my humble services : 1 might then have been suspected of interested motives. But it is far otherwise. He presents, before us all, an affecting instance of the transitory na¬ ture of human things, and of those sudden and striking vicissitudes which so often characterise our present state of existence. The services he rendered to his country and to its government during the momentous period of the late war, can never be forgotten ; and are such as no other man (with the exception only of the great naval and military commanders.) ever did or ever could perform ; yes, gentlemen, I repeat it, with the exception only of those he- roic men, Daniel D. Tompkins did more for this land, during the late war, than any other man in it. He obtained large resources for the government, when resources had become indispensable— when its credit was at the last and lowest point of depression, and when the first officer of the Treasury had used his utmost efforts, and used them in vain.—He supported the troops that fought upon the frontier :—-He surrounded this city with an army when the go¬ vernment confessed themselves inadequate to its protection—he paid that army when the government had not a dollar in its Trea¬ sury. Gentlemen, had services like these been rendered to the go¬ vernment of any other country, what rewards, think you, would have been deemed a sufficient remuneration ? Had they been done for England, a princely estate—the proclamation of his acts, wherever history could tell them—nobility for himself, and the descent of that nobility to his children and his kin to their latest generation, would have been considered an inadequate expression of the national gratitude. But, instead of this, my client appears be¬ fore you here, not only utterly ruined in his property, but proclaim¬ ed a public defaulter, and prosecuted by his government for the pitiful sum of eleven thousand dollars !* Mr. Emmet then took a similar course to his associate counsel, in commenting successively upon the several items of set-off. He dwelt, with some minuteness, on the matters of account—con¬ trasted the simplicity of the account of the defendant, as presented by himself, with the complexity of those rendered by the Treasury- insisted on his having been largely and constantly a creditor to Go¬ vernment, and his consequent right to charge interest. He inveighed with warmth against the narrow spirit in which he had been settled with—on the rigid manner in which he had been held to vouchers of a particular description, while able to produce other and sufficient proof of payment—on the delay thus produced, even where direct injury was not inflicted—on the equity not merely, but the legality of the claim for commission ; it being a simple demand of remuneration for work and labour done and performed on behalf of another—on the repeated * The Reporter regrets extremely, that he has been able to preserve only the opening of this very eloquent speech. Its most material points, however, had been necessarily anticipated by his associate counsel. 6 42 acknowledgments by Government of the distinguished services of the defendant, and his cold reward ; and finally, on the contrast between the treatment of him and of others. In the conclusion he pressed upon the jury the equity of giving to his client a pub¬ lic certificate of whatever amount they should, on the whole case, conscientiously believe to be his just due. MR. TILLOTSON’S SPEECH. The District Attorney , Mr. Tillotson, then summed up the cause, on behalf of the United States, in nearly the following manner : Gentlemen, When 1 yesterday asked the indulgence of the court for an adjourn¬ ment, at a late hour, it was not under the expectation that I should be more fully prepared now to discuss the merits of the controversy in question, than I was then: but that myself, as well as those whom I now address, might recover from that state of extraordinary popular excitement which the events connected with this investigation are calculated to produce ; that the jury, in the tranquil moment of re¬ flection, might discriminate between the influence which facts ought to produce on the mind, and the lodgment that sensibility had made in favour of the alleged public services of the defendant. Gentle¬ men, I am no stranger to that excitement. There are events in my life that have led me personally to feel its influence, perhaps more than 1 should be warranted at this time in explaining. I have, during the period of those very public services referred to, been, perhaps, among the most confidential friends of the Vice President; I have personally witnessed his exertions, and have been even called upon as a witness, in the present trial, to declare their extent and charac¬ ter ; and I therefore particularly feel the powerful acknowledgment made by the learned counsel who last addressed you, when, in the pride and altitude of his fame, he declared to this court and jury, the distinguished marks of respect he had received from the hands of his client; 1, also, (said Mr. T.) feel and acknowledge obliga¬ tions of the highest character, to the Vice President, and now allude to them only as marking the peculiar situation in which I stand on this trial ; for if I am compelled, by the discharge of a public and official duty, to exclude the claims which, in any other 43 place than within these walls, I should be proud to gratify, the obligation is equally strong with many of you, whom I know to be also his personal and political friends. Mr. Tillotson then adverted to the items of the bill of particu¬ lars, containing the claims of the Vice President, which he stated he should endeavour to show were totally unsupported. The first item that presents itself, is a credit claimed for interest due on a balance of $38,000, declared by the accountant, Colonel Lear, on the 14th December, 1814:—That it evidently appeared, from the transcripts, then in evidence, that no final settlement took place at that period, but that the balance was credited on the vouchers then exhibited, and transferred to the new account that was settled on the 5th November, 1816; for had this been a final settlement, why did not the Vice President receive the $38,000 ; why was it permitted to linger on the books of the accountant until the subsequent settle¬ ment, on the 5th of November, 1816, when it was finally disposed of in that account, and the then reported balance of $2,192, paid over to the Vice President: but that no final settlement could take place at that time, is a necessary inference from the fact, that at the very time when this final settlement is said to have taken place, the Vice President was in possession of the funds of the Government, to the amount of $700,000, as appears from the dates of the warrants of the 24th November, and the 22d of December, 1814, both ante¬ rior to the settlement. Now, (said Mr. T.) we have seen that in the settlement of 1816, the Vice President immediately received the balance declared to be due him, of $2,192, and yet, when the balance of $38,000 was declared, in December, 1814, neither the Government tendered, or the Vice President applied for its payment, until it was finally merged in the advances that took place, between the 24th November, 1814, and the 3d of February, 1816. It is sus¬ ceptible of but one inference, that it was embraced within the rule that governs all the mutual dealings between parties, that, in the alternate debit and credit of a running account interest has neither a legal or equitable claim :—but admitting that the Vice President is entitled to interest on the balance due him on the 14th December, still it must be subject to the deduction of interest on the $14,000 admitted to have been erroneously credited to him in that account, and since transferred to the credit of Mr. Yelverton, 44t He would then advert, he said, to a claim not contained in the biif of particulars of the Vice President, and therefore not susceptible of proof on the trial, but urged by his counsel with great force and con¬ fidence, as having a bearing on the claim for interest, viz. that from the settlement in December, 1814, until that of the 5th Nov. 1816, he was in advance for the government, $220,000. As the claim is for interest, and as such is susceptible of three objections : 1st. It was never presented to the accounting officers, and therefore not evi¬ dence. 2d. It is not contained in the bill of particulars, and 3d. It is totally unsupported in point of fact. Now, gentlemen, (said Mr. T.) I do not pretend to any accuracy in the result I present : it is suf¬ ficient for me to point out the mode in which 1 have arrived at it. On examining the abstracts, you will find, that allowing to the Vice President the whole amount he advanced from the 14th Dec. 1814, until the 3d. Feb. 1816, with 6 percent, interest, and calculating the amount advanced to him in Treasury notes, at 5f percent interest, it will leave a small balance against him. It is not pretended that payments were made by the Vice President, other than those credited to him, in the settlement of 1816, and by examining the abstracts, it will be seen that every warrant extinguished an equal propor¬ tion of the debt due to the Vice President, so that the last warrant of $400,000, that issued on the 3d. of Feb . 1816, not only reimbur¬ sed him his advances with interest at 6 per cent, but left him a debtor to the government. And here, (said Mr. T.) I admit that it would be a necessary inference that from the 24th Dec. 1814, until the 3d of Feb. 1816, the Vice President was a creditor of the government, but on that day the warrant of $400,000 made him a debtor, after reimbursing him his principal and interest. What inference but this, (said Mr. T.) can be made from the silence of the Vice President on this subject ? Even here, where “ the whole force and arrear” of collected injury and complaint has been concentrated for the purposes of this defence, not an intimation has been made of this claim, until it became necessary to distract the painful attention which for four whole days has been rivetted in this cause, by an almost ex¬ hausted Jury. 45 He then proceeded to notice the second item of the Vice Presi¬ dent’s account. “ To amount of interest due from 1814 to May, 1820, on $4,411 ; loss sustained on the sale of treasury notes hypothe¬ cated to the Bank of America.” Among all the causes of complaint, - this has been presented, as an act of the most cruel injustice, on the part of the Government: that years should be permitted to elapse, before the Vice President was credited with a loss which he him¬ self had personally sustained ; and that when at last credited, it should be unaccompanied with the interest due on the same up to 1820. It appears in evidence, that a deposit of $165,000 on trea¬ sury notes, was made with the Bank of America, as a collateral se¬ curity, for a loan of $150,000, with the privilege of selling them at the market price, if not redeemed within four months : at the expi¬ ration of the time limited, they were sold, and the debt of the bank paid, and the surplus returned to the Vice President; who, pre¬ suming that he would be charged with them at par, requested from, the bank the discount of an accommodation note equal to the loss, which note was not paid until May, 1820: but it also appears in evidence, that, though the Vice President was charged with the loss in the final settlement that took place in 1816, he was also credited with the same amount and interest up to the 5th November, 1816. In this state of the account, it is difficult to reconcile the strange and remarkable fact, of the principal sum, with interest, being paid in 1816, with the claim for interest subsequent to its payment. But it is said to be a double charge : first, in the form of a warrant, and second, as a debit by itself. There is but one difficulty (said Mr. T.) in yielding to this explanation, which is, that if the sum of $4,411 has been doubly charged, to balance the account, it must be doubly credited. Now, as it is credited but once, and admitted in the bill af particulars, on the trial, and in the agreement, to have been reimbursed, it is an admission totally irreconcilable with the argu¬ ment of its being a double charge, and yet it is equally difficult to conceive, that if paid, as it appears from the abstract in 1816, it should be chargeable with interest as against the Government, for four years subsequent to its payment. He then adverted to the third item of $ 14,527 64 being the amount of certain advances to the militia and volunteers, certified by N. Allen, and contained in a letter of R. Brent to the Vice President, and which, it is alleged, were never included in any settlement made between the government and him. As this claim, since its re¬ jection by the court, has been made the subject of remark, both by the Vice President and his counsel, 1 cannot consent to waive my right of reply. It will be recollected, on reference to the date of the letter and certificate, that this transaction took place in July, 1813, in the city of Washington"; from which place Mr Brent states that the amount shall be credited to the Vice President. To justify its present¬ ment on this trial, it is argued that Mr. Brent was an accounting officer within the meaning of the act, quoad all agents connect¬ ed with the pay department: but on reference to the act of con¬ gress organizing the War Department, it will be found to be sus¬ ceptible of no other conclusion, than that the only accounting offi¬ cer at the time known to the department was the accountant. But of what avail would be the admission, that Mr. B. was an accounting officer, as every presumption arising from its date, being in July, 1813, would admit of little doubt, but that it was included in the settlement that subsequently took place on the 14th of December, 1814, and then credited to the Vice President, particularly in the absence of the necessary proof, which, as preliminary to its intro¬ duction, the Vice President could and ought to have presented. But in what form does it appear in this court ? As the certificate of N. Allen, referring to vouchers not produced, and consequently de¬ riving no authenticity from any admission contained in the letter of Mr. Brent. But it presents.a remarkable coincidence, which, unex¬ plained would lead to a belief that it is the identical sum credited to the Vice President in 1814, since transferred to the credit of Mr. Yelverton, and now the subject of the present controversy. A due regard, however, to the Vice President, compels me to sus¬ pend any comment that this strange coincidence is calculated to ex¬ cite ; for I freely admit that it is totallyjinconsistent with the respect I owe him to indulge the supposition. 47 He then examined the item of $20,000 contained in the bill of particulars, which he stated was so totally destitute of all claim to con¬ sideration, that he felt some little embarrassment in making it the sub¬ ject of comment to the jury. It is in proof that it has already been submitted to the accounting officers of the Treasury, and carried to the debit of the Vice President in the final settlement of the 5th of November, 1816, which settlement the Vice President has himself recognised and acknowledged, by receiving the balance of $2,192 paid to him on that occasion, and which settlement closed all the various monied transactions between him and the United States. The mere allegation, therefore, that it had been previously charged in the settlement with Mr. Lear, in December, 1814, was insufficient, in itself, to resist the operation of the Act of Congress, which declares “ the transcript of the auditor to be prima facie evi¬ dence of indebtedness and in the absence of other proof to be con¬ clusive on the court and the jury. I am ready to admit (said Mr. T.) that under our rules of evidence it was in the power of the Vice President, by resorting to the terms of the settlement in 1814, to have shown the mistake of the auditor, and to have enabled the jury, in the exercise of their appellate power, to have credited him on the amount. But as it is presented to you in the transcript, it is a debit, and is there a particle of evidence on the cause to impeach its verity or validity^? The Vice President had the legal right of demanding from the Treasury an authenticated copy of the settle¬ ment in 1814, and all that can be asked is, that in the absence of the necessary proof on his part to establish its inaccuracy, that a solemn act of Congress, which makes the transcript evidence, shall not be invalidated by presumptions, or by the weight, which, per¬ haps, in any other place than in a court of justice, might be at¬ tached to the declaration of the second officer of Government. But there is another consideration, that in questions of account is not without its weight. The mistake alleged, took place on the 5th of November, 1816, and yet, to our knowledge, it has never been the subject of complaint until the present moment; and yet it is scarcely to be credited, that when the Vice President received the balance of $2,192, declared on that settlement, he should have 48 been unconscious that the government was indebted to him in the enormous sum of $22,192, making a difference of $20,000 on the final settlement of his account, as it was only necessary to advert to the items of the previous settlement in December, 1814, to have established the fact of the unwarrantable re-appearance of this item of $20,000 in the subsequent account, in relation to this item, whatever indulgence may be due to the intimation so fre¬ quently made by the counsel of the Vice President, that his higher and more important duties during the war, rendered accuracy im¬ possible ; it will be recollected that it occurred long since those duties ceased, and to which, in the tranquil moment of 1816, the mind of the Vice President must have been directed. I shall now (said Mr. T.) direct your attention to what may be considered the equitable claims of the \ ice President, as commission ®n money's advanced, received, and expended ; and here I must re¬ mark that was this a question in which twelve men individually were called upon to pronounce upon an adequate remuneration for the pub¬ lic services of the Vice President ; was it a question in which, as citi¬ zens, a Jury deemed it their duty to instruct the members of the national legislature, in the extent of the provision that was due to the distinguished individual in question, or as one of the learned counsel has said, no longer to suffer the imputation of presenting to the nation, in the person of its second officer, a national monument of its injustice and ingratitude, perhaps there are few who would hesi¬ tate ; for one, I would cheerfully contribute to stimulate the lingering relief his public services have unquestionably earned, and which now, perhaps, his private fortune may require ; but which, by the laws of the country, must rest on the munificence of those to whom the nation has exclusively commuted the priviledge of guarding its treasure, and the power of extending its rewards. But was it not to have been expected, that in a claim of such magnitude as 5 per cent, commission on $1,900,000, some evidence would have been presented, either of its adoption by the known law of the land, or of its toleration by the usages of the country. Was it to be ex¬ pected, that within the walls of a court of justice, a jury should have been left drifting between a wish excited by sympathy, and an obli- 49 gation imposed by an oatb, because every witness who was asked the question, whether any of the public agents was ever remunerated, has answered in the negative. Was it not to have been expected, that witnesses would have been sworn to testify to some rate of com¬ mission ? or did the Vice President believe that he had little to add to a sympathy already excited ? Or was it not to be expected that, in founding a claim on a personal responsibility in the negociation of Treasury notes, some more signal evidence of responsibility would have been presented than the solitary case of the Bank of Ame¬ rica ? for it stands upon this trial as the only insulated instance in which a guarantee has been either required or given in pledge for the government credit. If the Vice President merely received, and disbursed, without adding to it either the responsibility or incon¬ venience of personal credit, there was a remuneration susceptible of proof, which it was his duty to submit on this trial ; and in the absence of which, an allowance by the jury would be both unau¬ thorized and unprecedented. What the law authorized, the govern¬ ment has promply extended to him ; and however much we may regret that it was confined to the quarter of one per cent, allowed for disposing of Treasury notes, and which is credited to the Vice President in the abstracts, still it forms a conclusive answer to the imputation, that the prostration of his fortune and character was either the wish or object of the administration. But, say the learned counsel, it is a common law right. However admissible this doctrine may be, (said Mr. T.) in regulating the inter¬ course between man and man, it has no application to a supreme power ; which, in governments the most free, has ever reserved to itself the right of regulating, by its enactments, the obligations to which it feels itself compelled to submit. And why ? because it can only enforce its righ'S under the authority of its statutes, and should therefore be protected from any arbitrary rule of decision, which the feelings of a jury might seek to impose. Had the Vice President intended to have availed himself of the right of setting off these commissions, why has he not called uponthe numerous moneyed agents of this city ? They, at least, could have established the usa ;e; but not one individual has been brought to testify, with the exception 7 50 of Mr. Dunham, who, under a specified agreement with the commis¬ sary general, became the purchaser of blankets for the army. But without intending to lessen the merits of the V ; ce President, l would ask, whether, under his general oath of office as governor, he was not bound to protect the territory of which he was the chief magis¬ trate ? and whether all the expenditures were not exclusively direct¬ ed to the defence of this state ? and whether the same principle which is now sought to be established in this case, must not, of right, be extended to the "overnor of every State, who has borne any part in the expenditure of public money during the late war ? But, (said Mr. T.) it is worthy of remark, that at the very time when the right to commission accrued during the fall of 1814, the Vice President was receiving, as it appears from the transcript in my hand, the pay and emoluments of a Major General in the United States Army, the highest compensation conferred upon the highest rank in the service. This fact I shall submit without farther re¬ mark, for whether this compensation was received as the military commander of this district, or as the financial agent of the govern¬ ment, it conclusively does show that no expedients were left unem¬ ployed to concentrate, in the person of the then governor, all that could be due to his patriotism and services. I have now, (said Mr. T.) examined with some degree of preci¬ sion, and I trust with candour, all the claims on the part of the Vice President ; and hope I have not so far mistaken the effect of the remarks 1 have submitted, as to leave any doubt on the mind, but that the United States are entitled to claim from your hands the amount reported by the auditors. As the subject of commissions was one, in which the department of the Treasury could make no allowance, I am satisfied in having vindicated the character of the accounting officers from the charge of either accidental mistake, or intentional wrong—or, what is worse, from making the defendant the victim of marked and unauthorized oppression. I am free to ad¬ mit, that neither in his person, or in that of any of the distinguished men who have served their country, has the nation been either ge¬ nerous or just ; but it is not in a court of justice that public service can receive its reward, or public sacrifices their indemnity. Tu- 51 tored as we are by form and regulation, it is worse than assump¬ tion to yield to a sympathy unknown to the law, and foreign to the merits of the cause in which we are engaged. With you, rank can have no claim that you are not prepared to concede to the meanest suitor in this court—distinction no verdict, that is not equally the right of all, and I am not yet prepared to believe, that you are now ready to declare, that as Jurors you have the power of establishing a claim which can only look for its recognition to the Congress of the United States. What the Government under existing laws could do, they have done ; and what they refused to General Swartwout, they have conceded to the Vice President; a distinction which at least is indicative that oppression is not among the causes that have led to the necessity of this controversy. The Defendant here asked leave of the Court to add a feW words, by way of explanation, provided the District Attorney should he allowed the liberty of reply. He said that he could not, in general, complain of the conduct of that gentleman, in conducting the present suit; he was fully sensi¬ ble of the obligation which compelled him to perform a public duty at some expense of private feeling : but that he really had not been prepared to hear from him an insinuation, that a few months’ military pay, (an allowance intended merely to cover his travelling expenses, and the transportation of baggage,) was to be taken in lieu of all claims upon his country. “ This,” said Mr. Tompkins, “wasthe unkindest cut of all—and the remarks upon the subject have added insult to injury. With respect to the credit allowed in the govern¬ ment’s account against me, for a balance almost the same in amount with that I claim under the letter of Col. Brent, one word of explana¬ tion will suffice. The troops were paid quarterly ; the gross amount of different quarter’s pay would come naturally to about the same sum. I paid those troops at two different times ; for one of those pay¬ ments I got Allen’s receipt, for the other I did not. The credit in the account is for the sum receipted ; what I claim is for the other payment; and on comparing the date of the credit with the date of the payment claimed, they will be perceived to be quite different. The Defendant's counsel, in explanation of the charge on inte¬ rest, stated that it would be unfair to set the interest on the several warrants issued in favour of the Defendant against his claim for interest on liquidated balances ; because, while he had been charged interest by government on the treasury notes, he at the same time had been charged interest by the banks on loans he had made. Nor was the item of $20,000, as asserted by the District Attorney, without evidence. The transcript in which the same was charged was itself evidence against the charge. That transcript proved the whole ground on which the charge was resisted. Nor was it necessary, under the act of 1797, that this item should have beeD presented at the treasury, and disallowed. That act referred to credits claimed ; this was not a credit claimed, but a debit resisted. r I he District Attorney complained that the gentlemen had extend¬ ed explanation into argument, and urged in reply the same conside¬ rations on which he had dwelt in summing up. Before the Judge rose to charge the jury, the District Attorney Submitted to him the following points, upon which he prayed the court to instruct the jury. 1st. To charge the jury that the item of 20,000 dollars must be presumed to be correctly stated in the transcripts, and that ne legal evidence does appear to show that it was so charged incor¬ rectly, and must therefore be credited to the plaintiffs. 2. That the five per cent, commission is not, by the known law of this land, a legal charge or set-off against the plaintiffs in this cause, and must therefore be discarded by the jury as a set-off in the pre¬ sent action. 3. That interest is not chargeable on a running account, and that if they believed there was a settlement the 26th of December, 1814, still, as the defendant was, as it appears from the testimony, in possession of advances from the government, no interest can by law be allowed. 53 JUDGE’S CHARGE. The judge, after remarking for some time on the importance of the controversy, not only as related to its peculiar nature, but also as to the amount actually in dispute between the parties; oh the liberality with which it had been conducted on the part of the go¬ vernment, and on the rank, character, and services of the defend¬ ant, charged the jury on the above points to the following effect: 1st. That the transcripts from the Treasury Department, pro¬ duced by the attorney of the district, must be presumed to be cor¬ rect, as to the matters of account therein stated ; and that the item of twenty-thousand dollars, claimed as a credit by the defendant, could not be allowed, because it had not been presented to the account¬ ing officers of the Treasury, and by them disallowed, as the statute directs, unless it clearly appeared from the transcripts of the ac¬ counts themselves, so read in evidence, that the item of twenty thou¬ sand dollars, had, by mistake or inadvertence, been twice charged to the defendant; and that in such case it was competent for the jury to correct an error clearly appearing upon the face of said transcript. 2d. That the charge of five per cent, commission is not allowed by any law or statute of the United States, and could not be set off as a liquidated demand ; but evidence having gone to the jury, that a claim for this item had been made at the proper accounting offices of the treasury, (and which fact was not controverted on the part of the United States,) and it having been urged by the counsel of the defendant that he was entitled to claim such reasonable amount of the sum charged for commission, as a compensation for services and work and labour rendered, and for disbursements and expenditures of money on behalf of the United States, as the jury might think fit to allow ; the Court charged the jury, if they should be of opinion that the defendant had rendered services, work, and labour for the United States, and disbursed and expended money in their behalf, and for this had received no compensation, and the evidence of such service, work, and labour, disbursements, and expenditures, having gone to the jury without objection, in such case it was com¬ petent to allow to him a reasonable compensation for such services, work, and labour, disbursements, and expenditures : and on this prin¬ ciple alone could any allowance in this respect be made of any part of the sum charged as commission. 54 3d. That it was a general rule that interest is not chargeable on a running account, and can only accrue on a liquidated balance. That if the jury found there was a settlement on the 26th of De¬ cember, 1814, and a balance was then liquidated and acknowledged to be due to the defendant, still, if it appeared from the testimony, which, in this respect, was confined to the transcript from the Trea¬ sury Department, (the accounts offered by the defendant having been rejected,) that the defendant was in possession of advances from the government, or had money of the government in his hands, or any other account, then, in such case, no interest could by law be allowed to him. The defendant and his counsel having urged the Jury to certify to the Court what balances were due (if any they should ascertain to be due,) from the United States to the defendant—the Judge’s instruc¬ tions to the Jury on that point were, that if, on a full investigation of the account and the evidence, they should be of opinion that the defendant was entitled to credit equal to, or greater in the aggregate, than the sum claimed by the United States in this suit, then they should find a general verdict for the defendant. Such a verdict, he said, was all that could be received, and recorded. That if they should, afterwards, think fit to give the defendant the proposed cer¬ tificate, it could only be done by them as individuals, and would form no part of the record or proceedings of the court. After an absence of several hours, the jury returned and ren¬ dered a verdict for the Defendant. The foreman then presented to the Vice President the following CERTIFICATE : JVe, the Jurors m this cause, having found a verdict for the defend¬ ant, do also find and certify, that there is, moreover, now due from the United States of America to the defendant, Daniel D. Tompkins, the sum of ONE HUNDRED AND THIRTY-SIX THOUSAND SEVEN HUNDRED AND NINETY-NINE DOLLARS AND NINETY-SEVEN CENTS. Dated- June 6th, 1822. ik. Trials L65832 vo1.14. DATE ISSUED TO Vo/-'*?'