Memorandum in Jacob Barker’s Case

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Mr. Barker seems to think that there is a personal severity shown to him in the treatment of his applications to the treasury. There is no foundation for the opinion.1 His bills have returned protested for non-payment, and suits are instituted to recover the principal, damages, etc. He offers to pay the principal, interest, and costs if the claim to the damages shall be released. The comptroller and Mr. Fisk, the district attorney of New York, consulted me on the subject some time ago. Having expressed a wish that every justifiable indulgence should be shown to Mr. Barker, I examined—first, what it was in the power of the treasury to do; and second, what, under all the circumstances of the case, it was proper to do. The substance of my opinion was as follows:

1. The treasury cannot release the whole or any part of a debt due to the United States. It may exercise a reasonable discretion to enlarge the time of payment, and to secure the principal it may waive the claim of interest; but it has not in cases of debt gone further. In cases of penalty and forfeiture, before they are reduced to a certainty, compromises have been allowed when the law was doubtful or the evidence imperfect.

The damages upon the return of bills protested for non-payment have always been regarded as a part of the debt. It was so decided in Mr. Francis’s case (Ambler, i.),2 and I gave that opinion to Mr. Gallatin several years ago, when Mr. Girard’s bills were likely to return under protest in consequence of the failure of the drawer, George Barclay. Mr. Girard had offered to refund the money with interest, or to give new bills, if the claim to the damages were waived, should the first set of bills be returned. The offer was declined, but Mr. Girard was rescued from the loss of the damages by the interposition of Messrs. Baring, who paid the bills for the honor of the drawer.

2. But as Mr. Barker set up various pleas to defeat the demand of the United States either entirely or partially, two propositions were recommended to Mr. Fisk:

The first, that if, as the law officer of the government, he thought the suits could not be maintained in point of law or of evidence for the whole or any part of the demand, the suits ought to be discontinued or the demand reduced accordingly.

The second, that if Mr. Barker would pay the amount which his counsel admitted to be recoverable in law, the expense and trouble of prosecuting all the suits should be saved by trying the controverted points upon a writ of error in a single case.

No remarks are made on the extraordinary character of Mr. Barker’s pleas, such as the plea that the government had no right to remit bills to England during the war; that there was an understanding between him and the late Secretary of the Treasury relative to the funds for paying the bills, and that the secretary had failed on his part, etc. etc.

I am desirous to accommodate Mr. Barker as far as it is practicable, and therefore I have referred the subject once more to the comptroller.