To George Nicholas1
August 31st 1792.
A Claim I understand is made by certain Inhabitants of Kentucky upon Messrs. Elliot & Williams2 in their capacity of Quarter Masters to the United States for the hire of Horses which were killed or lost in the expedition under General Harmar;3 the appraised value of which has already been paid to the owners.
This Claim has only lately come under my notice and my first impression was that it ought to be admitted. But having had a conversation upon the subject with the Secretary at War, I learn from him, that, he, some considerable time since, received information from very authentic sources, that it has been a constant practice in Kentucky in such Cases to receive payment for the Value of the Horses and to wave the hire that the Records and files of the public Offices of Virginia will probably shew a variety of instances in which this Rule has been the guide, and that in fine it is to be deemed the usage of the Country.
To this representation my first impression has of course given way, I no longer feel myself at liberty to authorise the admission of the Claim in its present extent until the fact of the usage alledged to exist has been satisfactorily ascertained either in the affirmative or negative.
I learn that a suit has been had in the District Federal Court, in which the Claim has been decided against the public.4 But I am not apprised how far the defence was urged on the ground I have stated, nor how far the circumstances of the decision intitled it to weight. I cannot therefore take that example as a guide without further investigation.
It is consequently my wish that a second defence may be made in some other Suit, with the advantage of a Struck Jury and of full evidences as to the usage in question. If the nature of the settlements which may have been made with the State of Virginia cannot be established by testimony on the Spot, it is my desire that a Commission be taken out to examine the public Offices in that State. I shall in the mean time make inquiry there and communicate the result. Messrs. Elliot and Williams are desired to apprise you of any suit which may be brought against them, in order that you may pay the requisite attention to it.
Another Suit, if determined against the public, without apparently exceptionable circumstances, will be definitive with me. For this reason, to give it the greater authority as a Justification you will move the Court for a new Trial.
I am aware that at Common Law, in ordinary Cases, the hire is the thing recoverable, but then the loss of the Horse from any accident would be that of the Owner. It is Just that in case of a military expedition (which involves extraordinary Risk) he should be indemnified against such Loss; but if usage declares, that this is all he shall have that usage ought to prevail where no agreement to the contrary is made. The Rule ought to work both ways. The presumption must be that the Risk of loss of the hire is compensated by an increased Rate.
Nevertheless I shall be glad to receive information from you as soon as possible with regard to the course of the late trial; in particular, whether any endeavours were used to prove the usage alledged—whether the testimony was admitted or overruled—and what appeared to be the real state of the fact. If the Judge would also give a Certificate respecting the matter, it would be pleasing to me.
It is possible that these communications may supersede in my Judgment the necessity of another trial.
It is the furthest of all things from my disposition to dispute any Just demand on the public or vex the Citizens with litigious delays. But at the same time it is my duty to guard with circumspection the Interests of the nation, and to see carefully that its money is not expended for purposes, which according to established Rules are not the objects of rightful Claim.
I am Sir &c
Copy, Hamilton Papers, Library of Congress.
1. Nicholas was United States attorney for the District of Kentucky.
2. The partners in the firm of Elliot and Williams, contractors for the western posts, were Robert Elliot and Elie Williams.
3. H is referring to Brigadier General Josiah Harmar, who commanded an expedition of the United States Army and Kentucky militia against the western Indian tribes in September and October, 1790. For an account of this campaign, see “Conversation with George Beckwith and William Macomb,” January 31, 1791.
4. Philip Buckner v Robert Elliot and Elie Williams, March 20, 1792 (Minutes of the Federal District Court of Kentucky, University of Kentucky, Lexington, Kentucky).