From Edmund Randolph
[Philadelphia, February, 1791]
The Attorney General of the United States does himself the honor of replying to the questions propounded to him by the Secretary of the Treasury, as follows:
☞ 1st. To the statement in the letter of February, 12th: 1791.1
It does not appear whether the deceased Administrix be interested personally in the estate of her deceased husband. If she were so, although the whole legal right vested in her as administratrix, yet if she had an equitable right in a part, the administrator de bonis non. ought at any rate to liberate the Treasury so far as that part goes.
I mention this, however, not from a supposition, that you will have any difficulty. For as money paid through mistake, may be recovered, so may an engagement to pay money through mistake, be cancelled. Therefore the administrator de bonis non, ought to have a settlement made with him, and a certificate granted accordingly.
But I think it would be proper immediately to have a suit instituted against the husband, and publication made, to prevent sale and deception.
2d. To the statement in the letter of the 14th: February.2
By a general power of attorney is, I presume, meant a power to do all things in the transfer of stock, which the principal might do, were he personally present. Now the principal might transfer it, were he present, to the person who is his attorney. But can a man with his right hand perform an act to his left? When two rights concur in the same person, they are on the same footing, as if they were in different persons. The attorney subscribes the name, or affixes the seal of the principal. He accepts in his own mere character. The law then does not seem to forbid the transfer; and altho’ the attorney has a great opportunity for fraud, by being permitted to sell to himself, yet the principal declares his confidence in him by the letter of substitution, and the difference between an immediate transfer to himself, and a circuitous one thro’ a third person, presents little or no difference of difficulty in committing fraud. The power thus exercised, will indeed be scanned with more rigor; but it is not therefore unexerciseable.
3d: To the letter from the Comptroller, dated February 10th.
1791. inclosed in Secry’s letter of 14th. February.
An Additional fact has been stated to me: that before Willing, Morris, and S.3 accepted the original Certificates, Mr. Milligan the Comptroller under the former government of the United States4 was consulted upon their genuineness, and that he affirmed them to be genuine. I mention this circumstance as one, which may seem to have real weight, and for a moment had some with me. But the United States not being bound by extra-official opinions, at least by opinions on points, which it was not the actual duty of their officers to answer, I discard it from my consideration.
The important ingredient, is, that registered certificates were issued upon the forged ones to W. M. & S.
But I must take the liberty of witholding my opinion, until I can receive a reply from you on the following hints.
I have been told that W. M. & S. refused to take original certificates from young, until the continental officer had transferred their amount to them; and that they were thereby prevented from pushing Young, and recovering from him a debt, which but for the transfer, they might perhaps have secured some other way.5 Now altho’ I cannot say, that in every case, the United States can investigate the genuineness of the original certificates, it is no less impossible for me to assert, that there is no case, in which this investigation ought to be made. I wish to try each case by itself; and I must therefore beg you to add by what means the cancelled certificates can now be proved to have been counterfeited?
The secretary knows that the foregoing was written some time ago; and nothing has prevented it from being sent earlier, but some public calls, which seemed more pressing, and prevented, an earlier transcription by his clerk.6
LS, RG 60, Copies of Opinions, National Archives.
2. Letter not found.
3. The Philadelphia mercantile firm of Thomas Willing, Robert Morris, and John Swanwick.
4. James Milligan, who served as comptroller from October, 1781, until the abolition of the office in November, 1787.
5. In a letter dated August 4, 1785, from Willing, Morris, and Swanwick to Richard Henry Lee, President of Congress, this case was described as follows:
“We beg leave through your Excellency to Communicate to the United States in Congress the following Facts.
“Sometime in November last at the Instance of a certain William Young we agreed to purchase of him sundry certificates Signed by John Pierce Esqr. Paymaster General Amounting in the whole to Twenty five thousand One hundred thirty five Dollars and fifteen Ninetieths of a Dollar provided they Should be passed on due Examination at the Treasury office of the United States—And in that case we agreed to give for the same four thousand three hundred Ninety Eight Dollars and fifty-three Ninetieths of a Dollar.
“The certificates were accordingly presented to James Milligan Esqr. the Comptroller of the Treasury for Examination, and after the due Investigation thereof We Received new certificates in Exchange signed by the Register of the Treasury (of which copies are enclosed) and thereupon paid to the said William Young the Sum Stipulated. By this Means we became Creditors of the United States on Record for the sums and on the terms in these Certificates Specified. Several Months after this Transaction we learnt that the Certificates delivered by William Young had been altered or Forged and thereupon Immediately took Measures to secure as much as possible of his Property. By our attention and care the sum of One thousand Nine hundred thirty six Dollars and fifteen Ninetieths of a Dollar in Money and a Note from a certain Samuel Lyning to him now in the Possession of Thos Russell Esqr. of Boston for One hundred thirteen and one third Dollars have been secured and are now Ready at the Order of Congress. But we must pray Your Excellancys Permission to Observe that it does not consist with our Feelings to derive Benefit from an affair of such Nature as the present and therefore altho our Right to the sums Mentioned in the said Certificates is Indisputable We will not hold them without the approbation of the United States in Congress but on the Contrary if that shall be thought most Eligible will Readily deliver them up on Receiving the Principal and Interest of the sum paid to William Young who is now Insolvent and a Prisoner for Debt in the Gaol of this City.” (LS, Papers of the Continental Congress, National Archives.)
This letter was referred to the Board of Treasury on August 22, 1785 (JCC description begins Journals of the Continental Congress, 1774–1789 (Washington, 1904–1937). description ends , XXIX, 650–51). On March 28, 1787, the Board reported to Congress: “It appears to the Board that the Memoralists have no Claim against the United States for the value of the Counterfeit Certificates (which they purchased through mistake) and Registered in the Books of the Treasury; since no error of a Public Officer in admitting an improper Credit, can make the United States chargeable therewith, when the same is discovered.… That the Application of Messrs. Willing, Morris, and Swanwick … cannot be complied with; the Memoralists having on that account no Claim whatsoever against the United States” (JCC description begins Journals of the Continental Congress, 1774–1789 (Washington, 1904–1937). description ends , XXXII, 140–41).
6. This paragraph is in Randolph’s handwriting.