To James Madison from David Ross, 23 March 1811
From David Ross
Davis’s City of Washington March 23. 1811.
Sir
I arrived here last evening. The principal object which brought me to this City, is to attempt a settlement at the Treasury of the Accounts of George Webb decd who was the Agent in the State of Virginia and the Receiver of her Quota of Revenue for the General Goverment—altho not a nominal party I am deeply interested as the Creditor of Mr Webb, and his assignment upon Harvie1 for the deposites in his hands when the Claims of the United States against him are satisfied, those deposites have been in the hands of Mr. Harvie & his family for twenty four years. I have addressed the Secretary of the Treasury upon the Subject who will no doubt do what is right & proper.
’Tis with Reluctance, and great diffidence that I have prevaild on my self to intrude upon your Excellencey a matter of considerable importance to my private Concerns.
The subject I alude to, is the Award made by your self Joseph Jones, and Henry Tazwell, at the City of Richmond 15th. June 1783.2
I took the liberty of mentioning this subject to you, the last time I had the honor of seeing you, at the department of State, some years ago, when you were pleased to observe, that if you could see the papers to refresh your memory, every thing on your part to promote Justice should chearfully be done.
I never mentioned the subject to either of the other arbitrators, as they soon afterwards became Judges in our Circuit Courts of law; Mr. Tazwell of his own accord mentioned to me the subject with very vivid sensations, and observed that the Award had given him vast uneasiness being Convinced upon mature Reflection that it was erroneous & might be the instrument of injustice, and he hoped and trusted the Courts would Correct it, as the Arbitrators had been misled by some case in the English books at that time, considered to be in point, but found afterwards not such authority as to be relyd upon, this conversation happened a short time before his death.
I was very little acquainted with the Law respecting awards, and felt confidence in the justice of the case, and sanguine that the finall decision would be favourable—indeed about this time the Venerable Mr Wythe the judge of our high Court of Chancery decreed a perpetual injunction against the Judgement at Law and published a short pamphlet on the subject, and an appeal was taken and since his death the decree has been Reversed, subjecting me to the payment of about twenty four thousand dollars & Costs.3
The Statement and Copy of the Court papers will Convey the necessary information. I could not procure the Original papers as the rule of the Court prohibits their being taken out of the Office.
The amount of the decree altho’ sufficiently distressing, especially as no valuable consideration had been received—nevertheless ’tis rendered doubly distressing and vexatious from the following circumstance
I realy believe the plaintiff was so concious of the inquiry [sic] of the decree that he was ashamed to demand payment in person and said nothing on the subject for twelve months, and then thro’ his friends proposing a compromise and an adjustment of convenient payments, which I believe would have taken place in a short time, without farther trouble. About this time a cause which had been long depending was decided in our Court of Appeals by which I was entitled to a division of a Considerable estate in the upper Counties of Virginia two thirds of Considerable tracts of Land, about Twenty Slaves & Considerable sums of Money—the Administrator upon this estate hearing of this celebrated decree upon the Award, Contemplated a speculation on the decree & a fraudulent use of it, upon the estate and purchased it up privately at a low rate & four years Credit the decree, without any recourse on the plaintiff, he procured an Execo. & levied it upon the slaves and purchased them for a triffle as no other person could purchase with safety no one slave was sold but two thirds of each slave was sold, the other third vested in the Admr. and other Legatees. I have troubled you with this detail to shew how much the original injury has been aggrevated, tho tis believed that the sale will be sett aside.
I may reasonably imagine that at this point you are disposed to ask what can you do? what do I ask or expect? and must confess I’m at a loss for an answer; you’ll readily imagine that under such Complicated & aggrevated injustice tis natural for me to seek for Legal relieff—that can only be found before a competent Court of Justice—’tis rather more than doubtfull if it can be again brot. forward, yet there are some circumstances which render it not altogether impracticable, especially if I can clearly shew that the Arbitrators were led into an error as to the law, by applying to this case some English Authorities which in fact was not sufficient legal authority. This brings me to the point, as to all I can ask, all that I can expect, and all I can hope for—which is simply this that your Excellencey would have the goodness to peruse the papers. This will convince you of the principles upon which you acted, & the other Arbitrators. You could not possibly found your Judgement upon the merits or the equity of the Case. I conceive the Arbitrators yielded up their own opinions, to what they conceived the imperious dictates of the Law; Now if the Arbitrators considered that to be Law, which was not, ’twas an unin[ten]tional and innocent mistake and an erroneous award or in other words not the real Judgement of the Arbitrators as to the merits of the case. But I believe no Court Can Compell Arbitrators to disclose the reasons and principles which governd them in making up their award. They may or may not disclose it at their own discretion.
Your superior Judgement will dictate whether you can do any thing in this case and what.
I can venture to say from what I have been informed that there is but one opinion prevails with the professional Genl: in Richmond that the Arbitrators were perfectly pure in their intentions altho’ mistaken as to the law.
I am well aware that this address, would not only be considered exceptionable but offenceive to many respectable characters; who might think it a degradation to be thot. they had comitted an error however innocently done. Upon this occaision, altho’ I not only feel serious regret, but also shame, at giving you so much trouble—I am under no apprehensions of giving offence, from a conviction, that such illiberal sentiments have no place in your mind. On the Contrary, that you would feel indignant, if your character was so much mistaken—as from motives of false delicacey you were deprived of the pleasure of being instrumental in facilitating Justice in any thing depending on your self.
If I do not find an appology in your goodness for this intrusion, I cannot expect to find it any where else. Be pleased to accept assurances of my sincere regard and esteem. Most Respectfully
David Ross
RC (DLC). Enclosures not found.
1. John Harvie (1742–1807), in addition to his service in the Virginia militia, the Continental Congress, and the Third Congress, was register of the Virginia Land Office, 1779–91 (, 1:188–89 and nn. 1 and 2).
2. The details of this “Award” and JM’s involvement in it are difficult to ascertain, the more so as JM on 15 June 1783 (a Sunday) was in Philadelphia, not Richmond. David Ross, Joseph Jones, and Henry Tazewell, however, were in Richmond in June 1783 as members of the Virginia House of Delegates, and both Jones and Tazewell were also concerned at that time with legislation for granting state revenue to the Continental Congress. Moreover, Jones, as a former delegate to Congress, had learned in April 1783 that he was responsible to Ross for some $7,700 in debts, a sum that had been incorrectly included in accounts of moneys owed by Virginia to Congress. Since JM in this period received bills drawn on Ross by the Virginia state treasurer, it is possible that his financial affairs, to some extent, were also intermingled with Ross’s accounts in a manner that required settlement at a later time. As a member of the Virginia delegation in Congress in 1783, JM was regularly involved in decisions that either allocated congressional spending in Virginia or required adjustments in the sums the state owed to Congress. Many of these transactions necessarily passed through the hands of both Ross and George Webb, the Continental receiver general in Virginia (see Edmund Randolph to JM, 15 Jan. 1783, and Jones to JM, 28 June 1783, , 6:45 n. 3, and 7:196–98 and n. 2; JM to Theodorick Bland, 6 May 1783, , 7:16; see also the instructions to the Virginia delegates, 17 and 26 June 1783, , 7:162 and n. 1, 192–93 and n. 4).
3. Ross, who had been appointed commercial agent for Virginia by Thomas Jefferson in 1781, appears to have been involved in several legal disputes, and it took many years to settle his financial affairs (see , 3:60 n. 8). The details of two such cases, Ross v. Pleasants, Shore, and Company, and William Anderson and Ross v. Pines, bear some resemblance to the circumstances Ross described to JM, and these had been the subject of critical comment by George Wythe in his Decisions of Cases in Virginia, by the High Court of Chancery, with Remarks upon Decrees by the Court of Appeals, Reversing Some of Those Decisions (Richmond, 1795; 29930), pp. 71–73, 147–65. No evidence has been found that JM was involved in these disputes.