James Madison Papers

To James Madison from John Breckinridge, 24 December 1805

From John Breckinridge

Washington 24. Decr. 1805.

Quest⟨o⟩;. for the Opinion of the Atto. General

“In the award rendered by the Commissioners, under the 7th. Article of the treaty with G. Britain, in the case of the Somerset, in favor of John R. Livingston Wm. Henderson, Messrs. Clarkson & Cross & Chr. Miller; Mr. Livingston claims £54, which in the report of the assessors appears to be considered as the property of C. Miller; it being alledged by Mr Livingston that C. Miller had no right to that sum, & that it was the property of Clarkson & Cross, of whom he is the assee. The question is, Does the award & papers in that case herewith inclosed, justify the payment of this sum of £54 to Mr. Livingston?[”]1


The award being rendered in favor of several persons, who do not appear to be in partnership, the right to its amount, is in all collectively, & not in any individually: of consequence, the right to transfer, must be in all. No transfer from Miller is produced. Evidence to shew (as has been attempted in this case) that Miller had never any interest in this sum, nor indeed in the award, & that it was so understood by the commrs., is, I conceive, wholly inadmissible. This would be going into a reexamination of the matter referred to, & decided on, by the Commrs., of which under the Treaty, they had the exclusive and final Jurisdiction.

It would be contesting the verity of the award, by setting up a claim contrary to its very letter. If the Parties cannot adjust their respective interests in the Award, or if either of them shall receive more than his proportion, they must resort to a court of Justice for redress. The Goverment has only to see, that the monies are paid to those in whose favor they were awardd, or to those, who are legally entitled under them.

The award not ascertaining the separate interests of the Parties, and the report of the assessors not being referred to, nor made part of the award, the Goverment has not, I conceive, either the means, or the power, of examining into such facts. The report of the assessors may furnish evidence for the parties in a contest among themselves, with regard to their respective interests in the Award: But as the Commrs. in making up their awards were not bound by the Reports of the Assessors, but might depart from them as they thought fit, the award alone, appears to me, to be the only portion of their proceedings, from which the Goverment can draw that information, of which it is bound to take notice. If those concerned have neglected to have inserted in the award the amount of their respective interests; or if they disagree as to their several proportions, the embarrassments are attributable to themselves; & the Goverment cannot without endangering the rights of the parties, as well as the interest of the public, interpose, (and that too ex parte) & undertake to decide among them.

Cases may probably occur where it might be very difficult, perhaps impossible, to procure complete evidence of the transfer of the claims of some of the persons in whose favor awards like the present have been rendered. Such cases must rest on their own circumstances, & may no doubt furnish such satisfactory proof of the equitable right of the claimant as to induce the Govrment to direct payment upon receiving from him an indemnity against all future demands on the same account.

John Breckinridge
Atto. Genl

RC (DNA: RG 59, LOAG). Docketed by Wagner, with his note: “J. R. Livingston’s case.”

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