To Tench Coxe
January 28. 1795
I send you copy of a letter from the Attorney General of the 17 instant.1
I agree in opinion with that officer, that it is adviseable to cause two suits to be brought one in the circuit Court another in the State Court.2 The one in the Circuit Court ought to be Debt for the tax exclusive of the penalty and it ought to be in a sum of two thousand Dollars for an equivalent number of Carriages.3 This is to secure if possible an appeal to the Supreme Court on the ground that the sum declared for will be the criterion of the question of the appellate jurisdiction of that Court and that the recovery of a less sum can only involve the penalty of costs. If the real amount of the demand should be averred in a plea to the jurisdiction in either Court the District Attorney must be instructed to demur and to insist on the point just stated namely that the smallness of the sum does not oust the jurisdiction but merely subjects to the penalty of costs, and on the further point noticed by the Attorney General with regard to the original suit which is that the particular Act laying the tax gives jurisdiction to any court of the UStates, without limitation as to the sum.
When I say it is adviseable to cause two suits to be brought it is on the supposition that there exist two instances of refusal to pay; otherwise it would be oppressive. If there be only one case let it be prosecuted in the Circuit Court. If there be two let the suits be matured for trial or determination, but let that in the Circuit Court be first brought to a decision & let the result be notified here for further instruction.
When I desire the suit to be brought in the circuit Court for 2000 Dollars it is to be understood that it must be without special bail. Because bail in so large a sum would be really oppressive.
If an arrangement by mutual consent could be made for accelerating the bringing the cause before the Supreme Court, the decision of which Tribunal can alone produce the acquiescence of the Executive in a determination agreeable to the hopes of the Defendants, it would be a pleasing thing and a man who opposes the tax upon a candid doubt could with an ill grace decline such an arrangement. At any rate the proposal of it can have no ill effect.
With consideration I am Sir Your obed serv
The Com of the Revenue
ADf, Connecticut Historical Society, Hartford.
1. William Bradford’s letter to H has not been found.
2. This is a reference to a case arising in Virginia to test the constitutionality of “An Act laying duties upon Carriages for the conveyance of Persons” (1 Stat. description begins The Public Statutes at Large of the United States of America (Boston, 1845). description ends 373–75 [June 5, 1794]). See Coxe to H, January 14, 19, 1795.
4. John Marshall.
5. Edward Carrington. On February 1, 1795, Coxe wrote to Marshall: “The Supervisor of the Revenue for Virginia (Edwd. Carrington Esqr.) has been recently authorized to engage you on behalf of the United States, to maintain and defend, in concert with the attorney for the District [Alexander Campbell], one or more Suits, or other law cases arising out of the act laying duties upon certain descriptions of wheel carriages …” (LC, RG 58, Letters of Commissioner of Revenue, 1794–1795, National Archives). For Coxe’s letter to Carrington, see Coxe to H, January 14, 1795, note 7.
On February 1, 1795, Coxe wrote to Carrington: “I have just learned that Mr. Marshall is in Philadelphia, and have written a note to engage him, but have not yet his answer …” (LC, RG 58, Letters of Commissioner of Revenue, 1794–1795, National Archives). On February 2, 1795, Coxe informed Carrington that Marshall had declined the offer because he had been engaged against the United States in the carriage tax case (LC, RG 58, Letters of Commissioner of Revenue, 1794–1795, National Archives).