From William Ellery1
Collector’s Off: Port of Newport [Rhode Island]
Oct. 9th 1792.
In answer to your letter of the 19th and that part of your letter of the 26th of the last month2 which respects fictitious sales &c permit me to observe, that I had been seasonably informed by the Colle. of Providence District of the delinquencies of Mr. Arnold respectg. a certain bond, that I had reason to suspect that he intended to transfer his property in the Samuel to Stephen Dexter, and that Dexter would apply for an entry at the Custom House in Newport. This and the advice of the District Atty.3 occasioned the Statements in my letter of the 4th. of last month. It was his opinion that it would not be safe for me to refuse a credit to Mr. Dexter if he should ask for an entry, producing a regular bill of sale, offering to give bond and otherwise to comply with the Law, notwithstanding the sale might appear to be fictitious. Before I received your letter, the Samuel arrived in this Port, Mr. Dexter applied for an entry, produced a regular bill of sale of vessel and cargo & I entered them. Your opinion expressed in the letter of the 19th is “that if appearances of this kind continue the presumption of design to evade the law will be sufficy. strong to justify an Offe. in refusing the credit.” “If an action be brought against the Offe for such refusal, means must be taken to examine all the parties upon Oath, and in the event of damages against the Offe. if he appears to have acted with due caution, and upon sufficient ground of probability, it will be incumbent on the Government to indemnify him.” Such circumstances as would justify a refusal should I conceive insure an indemnification, but this is not needed I expect that it would be insured by your letter of the 19th. Your Letter of the 26th. would give greater encouragement to expectation, were it not for the clause which concludes its last sentence, “as I have already mentioned in my former letter” which reference connects what is expressed in this with your former letter. Considered in this view, let me ask what means could be legally used to compell the Plt. in a prosecution agst an Offe. for refusing credit to sustain an examination under Oath before a State Court? and I know not of any Law of the United States which restricts actions against Officers in such cases to federal Courts. Our State Courts never exercise such a power.
Due caution and sufficient ground of probability are general expressions which admit of great latitude of Construction, and I have remarked that when persons have not succeded in an undertaking, their want of success has been attributed to incautiousness, or to their not having proceded on probable ground. Good or ill success stamp applause or censure on conduct.
I did not conceive when I wrote my letter of the 4th that you was authorized by law to promise an indemnification to an Officer who on probable ground of collusion should refuse a credit, and in consequence thereof should be sued, and suffer damage; but to intimate that until a Law should be enacted which would assure to an officer indemnification in the event of damages against him, it ought not to be expected that he should refuse a credit; and thereby expose himself to injury, and that damages and probably heavy damages would in that case be recovered against him, I was then and am now, upon mature consideration, satisfied would be the event of such a prosecution. An Act of Congress insuring indemnification to Officers who acting by your advice or by the advice of the District attorney when there would not be sufficient time to obtain your advice, should any case be prosecuted and damages be recovered against them would free Officers from embarrassment, and would not I believe be disadvantageous to the Public. An Act of Congress if such an act could be framed which would prevent a delinquent obligor from availing himself of a fictitious sale, to obtain credit would put a stop to such unjustifiable conduct in future, and it appears to me that a Law confining suits against Officers of the United States to a federal Court might not be improper.
It is probable that an application may again be made to me for credit, by a vendee of Mr. Arnold; other wise I should not have troubled you with this letter.
I have expressed my sentiments perhaps with too great freedom. I trust they will be received with candour. In this confidence and with perfect consideration
I am Sir Yr. most obedt. servt.
Wm Ellery Co
A Hamilton Esqr
LC, Newport Historical Society, Newport, Rhode Island.
1. For information concerning Welcome Arnold and the Samuel, see Jeremiah Olney to H, September 8, second letter of September 13, 1792. See also Jeremiah Olney to H, September 8, H to Olney, September 19, Jeremiah Olney to H, September 8, 24, October 4, 1792.
2. Neither of these letters has been found.
3. William Channing.