Report on the Petition of Comfort Sands and Others
February 24th. 1791.
[Communicated on February 25, 1791]1
The Secretary of the Treasury, pursuant to the order of the House of Representatives of the 20th. of January last,2 referring to him, among other things, a petition of Comfort Sands, and others,
That it is true, as represented by the said petitioners, that sometime in the year 1782, they contracted with the Superintendant of the Finances3 for the supply of rations for the use of the garrison of West point, and it’s dependencies, and also for the use of the main army.4
That it is likewise true that, before the expiration of the term of their contract, it was deemed proper or necessary by the said Superintendant, that the business of supply should be withdrawn from them, and placed in other hands.
That a claim to be indemnified for damages and losses, alledged to have been sustained, was made on the part of the said Contractors; in consequence of which the several resolutions, recited in the said petition, were passed, and nearly at the times specified therein.5
That it further appears, that four of the Referees, appointed by, and in pursuance of the said resolutions, namely, Isaac Rosevelt, William Malcolm, Elbridge Gerry, and Henry Remsen, did, in the year 1787, make an award or report, expressive of their decision or opinion, that the United States ought to pay to the said Contractors the sum of forty thousand two hundred and ninety seven dollars, and four ninetieth parts of a dollar.6
That it is also true, as stated in the said petition, that the said award or report was, by Congress, referred for examination to a Committee,7 who reported in favour of its being confirmed; but that report was afterwards committed to another committee who never, as far as can be traced, made any report. Neither has there been any decision of Congress on the subject. That the reasons, which induced the reference to a second Committee do not appear; but it is within the recollection of the Secretary, who was then a member of that body, that it was not attended with any circumstances indicating an opinion, either favorable or unfavorable to the merits of the award, but was done for the sake of farther enquiry.
That it is likewise true that application having been made to the accounting officers of the Treasury, for a determination on the said award, it has been concluded, that they were not competent to the same without the special authority of the Legislature.8
That in judging of the light in which this transaction ought to be viewed, the following particulars seem to claim attention.
That the course pursued was similar to that which is usual in the submission of controversies between individuals by arbitration.
That there was a mutual election and consent in the appointment of the persons who were to make the investigation.
That they are expressly denominated referees.
That they acted under oath.
That the proper officer, representing the government, was empowered to employ Council if necessary.
That the referees are authorized by the first resolution, to determine, what damages, if any, were sustained by the Contractors, and by the last Resolution, their duty or business is designated to be “to decide certain controversies” between the United States and the Contractors.
That these characteristics, and the general spirit of the transaction, appear to the Secretary, to denote that the report of the referees, in the case, ought to be considered, as equivalent to an Award between individuals, possessing the same validity and equally open to exceptions.
That, as to the provision, made by the several resolutions, that the Referees should report their opinion to Congress, this, it is conceived, could only have been intended to reserve to Congress a right of reviewing the Award, on the same principles, bona fide, as would prevail in a Court of Justice.
That entertaining a doubt, how far Congress, under the present Constitution of the United States, may think it advisable to exercise, themselves, the power so reserved, the Secretary forbears to enter into a detail of the circumstances which attended the Award; desirous of submitting, in the first instance, to the consideration of the House, whether it will not be expedient to repose elsewhere, the exercise of that power.
Two modes of doing this have occurred, which are also respectfully submitted.
One is, to authorize the accounting officers of the Treasury, on the application of the parties, to decide upon the Award, on principles, similar to those which would prevail, in a controversy concerning it at Law.
The other is, to authorize its being made, with consent of parties, a rule of the Supreme Court of the United States, for the determination of the said Court; in which case, it will, of course, be determined according to those principles.
All which is humbly submitted.
Secry. of the Treasy.
Copy, RG 233, Reports of the Treasury Department, 1791–1792, Vol. II, National Archives; copy, dated February 21, 1791, Robert R. Livingston Papers, New-York Historical Society, New York City.
2. On January 20, 1791, the House received “A petition of Comfort Sands and others, praying that the proceedings of the former Congress upon a claim of the petitioners against the United States, may now be confirmed, and payment of the said claim granted to them.
“Ordered, That the said memorial and petitions be referred to the Secretary of the Treasury, with instruction to examine the same, and report his opinion thereupon to the House.” (Journal of the House, I description begins Journal of the House of Representatives of the United States (Washington, 1826). description ends , 358.) For this petition, as well as supporting documents, see "The humble memorial of Comfort and Joshua Sands and Walter Livingston for themselves and Associates," n.p., n.d. (copy, Robert R. Livingston Papers, New-York Historical Society, New York City).
3. Robert Morris.
4. These contracts are described in ASP description begins American State Papers, Documents, Legislative and Executive, of the Congress of the United States (Washington, 1832–1861). description ends , Claims, I, 272, 595–96, 669, 708–28.
A number of contractors were associated with Comfort Sands in the execution of these contracts. So far as is known, the major associates were the Sands brothers (Comfort, Joshua, and Richardson), Walter Livingston, Daniel Parker, William Duer, Thomas Lowrey, Charles Stewart, Oliver Phelps, Timothy Edwards, and Tench Francis. Other merchants bought into the contracts; these included John Holker, Jonathan Lawrence, and Melancton Smith.
5. Apparently the contractors first petitioned Congress on February 28, 1785. On May 27, 1785, Congress resolved to authorize three men to “enquire into the particulars, and to determine what damages, if any, have been sustained by Tench Francis, Comfort Sands, and others, late contractors for the moving army, from the late Superintendent of finance having failed to make good the stipulated payments, or from his withdrawing the contract; and make report to Congress.” Two resolutions of June 27 gave the final authorization to the hearing and directed the comptroller of the Treasury to attend on behalf of the Government. On November 4, 1785, Congress voted to add two more referees to the group:
“Resolved, That the secretary of Congress be, and hereby is authorised, in conjunction with Walter Livingston and Comfort Sands, and their associates, to agree upon and appoint two disinterested referees to be added to those heretofore appointed, to decide certain controversies between the United States, and the said Walter Livingston and Comfort Sands, and their associates, who, or a majority of whom, shall be competent to report their opinion to Congress.” (JCC description begins Journals of the Continental Congress, 1774–1789 (Washington, 1904–1937). description ends , XXIX, 870.)
See JCC description begins Journals of the Continental Congress, 1774–1789 (Washington, 1904–1937). description ends , XXVIII, 109, note 1; 233–34; 321, note 2; 360; 397; 482–83; XXIX, 630, note 1; 860.
6. The arbitrators heard the evidence in October, 1787, but the Government did not present a rebuttal. The arbitrators divided four to one over the decision, but only the majority, cited here by H, wrote an opinion at this time. John D. Mercier, the dissenter, did not write his opinion until June 10, 1788. See ASP description begins American State Papers, Documents, Legislative and Executive, of the Congress of the United States (Washington, 1832–1861). description ends , Claims, I, 725–26.
7. H was a member of the committee to which Congress referred, on February 29, 1788, the arbitrators’ opinion. Although the committee submitted its report on March 25, 1788, the report was not read. On June 11, Congress recommitted the report of March 25. See JCC description begins Journals of the Continental Congress, 1774–1789 (Washington, 1904–1937). description ends , XXXIV, 75, note 1; 113, note 1; 211, note 6.
8. Only one of the documents involved in this Treasury accounting has been found. It is the opinion of the auditor, Oliver Wolcott, Jr., which he gave to the comptroller, Nicholas Eveleigh, on March 15, 1790. Wolcott thought the referees’ award was binding on the Government. See ASP description begins American State Papers, Documents, Legislative and Executive, of the Congress of the United States (Washington, 1832–1861). description ends , Claims, I, 595.