REFUTATION, 
 
 fi Y HIS FRIENDS, * 
 
 THE CALUMNIES AGAINST 
 
 DAVID HEN SHAW, 
 
 RELATION tO } M1S FAILURE OF THfi COMMONWEALTH BAM, 
 
 AND TUB 
 
 0# SOUTH BOSTON LANDS TO TrfE UNITED 
 
 B S t Ni 
 BY B fi A L S & 
 
 WATER STREET, 
 
 1844,
 
 REFUTATION. 
 
 THE recent rejection, by the Senate of the United States, of the nomination of 
 David Henshaw, as Secretary of the Navy, has been followed by reiterated news- 
 paper assertions, that among the reasons for this action of the Senate was "his par- 
 ticipation in the alleged fraud in the Commonwealth Bank transaction, by which the 
 government was cheated out of a large sum of money, in taking South Boston lands 
 in payment of a debt." 
 
 In the exercise of an independent discretion, in confirming or rejecting any nomi- 
 nation submitted to them, the Senate of the United States may rightfully stand above 
 all question in every matter affecting the political relations and personal qualifica- 
 tions of the party, aside from individual character and integrity. But if they assume 
 to reject a nominee upon these last grounds, they virtually assume as high a respon- 
 sibility as if acting under their judicial power of impeachment, and their decision, in 
 such case, should be warranted, not by charges or suspicion merely, but by substan- 
 tial proofs. And in the exercise of this high duly imposed by the constitution, the 
 judgment and conviction of each Senator, and not the direction of an organization 
 separate from the official action required of him, ought, it is conceived, to determine 
 that action, when applied to the rejection of any nominee, upon grounds affecting his 
 personal integrity or moral character/ The fact that in this case, the Senate instituted 
 no investigation, preferred no charges, and heard no evidence, is sufficient proof that 
 the alleged reasons of rejection are not the true ones ; though the bold and reiterated 
 assertions of newspapers hostile to Mr. Henshaw, and which have been suffered to 
 pass without reply, may not have been without their influence, in producing false 
 impressions. 
 
 Knowing that the senators, who Voted against Mr. Henshaw, did riot enter 
 officially into 1 any investigation of the calumnies affecting his personal integrity, and 
 that therefore they must be ignorant of the conclusive answer which facts a'nd docu- 
 ments can give to every one of them in detail, and to all in the a'ggregate ; we have 
 too much respect for them as honorable and high-minded men, to believe that they 
 passed uptfn the character of any man, without giving him a hearing ; and therefore 
 we do riot believe that Mr^ Henshaw was rejected upon any other than political and 
 party considerations. 
 
 With these we have no concern, and have nothing to say in censure on the one 
 hand or extenuation oil t'fi6 other. 
 
 We take issue only with the assumed fact that the' reason, or any part of the 
 reason for the rejection of Mr. Henshaw was rightfully founded, if at all, upon alleged 
 fraudulent, dishonest or dishonorable transactions on his part, in his former relations 
 to the l/nifed! States a's a pu'blic officer, or in his private acts as a' man. 
 
 In this respect, the action of the Senate is taken and attempted to be pressed upon' 
 the public, as a solemn verdict against Mr. Henshaw ; and though similar accusations 
 were met and put down, personally and through an investigation of the Department, 
 five years ago, yet in this new aspect of an assumed expression of the Senate, it is* 
 Seemed proper by the friends of Mr. Henshaw to' collect the abimdalit evidence"
 
 of his justification, in form, and to distinctly meet the issue as it stands ; not for him 
 alone, but also for the many men, of heretofore unimpeached integrity, who, if he 
 were guilty of the alleged frauds, were principals or accessories with him, in every 
 act, and who, if he is to be condemned by the supposed ex parte judgment of the 
 Senate, must be equally condemned with him. 
 
 Upon what that judgment was founded, has not yet transpired. The executive 
 sessions of the Senate are held with closed doors, and the injunction of secrecy can 
 be removed only by that body. They have done so, as to the yeas and nays upon 
 the nomination, but not as to the debates and the alleged grounds of the rejection. 
 On the 14th of February, Mr. Hen.-haw presented to the Senate, through its Presi- 
 dent, Mr. Mangum, the following Memorial, which will sufficiently evince his desire 
 and readiness to openly meet any charges that may have been privately preferred 
 against him. 
 
 MEMORIAL OF DAVID HENSHAW. 
 
 " To the Honorable the Senate of the United States : 
 
 " The undersigned most respectfully requests the Senate of the United States to 
 " remove the injunction of secrecy from their proceedings relative to his nomination 
 " to the office of Secretary of the Navy, recently acted on by your honorable body. 
 
 " Reports have been circulated, he presumes not on the authority of any senator, 
 " and widely spread through the public press, that charges derogatory of the personal 
 " integrity and moral character of the undersigned were presented to the Senate or 
 " to senators, and that some if not all those charges are now on file in the archives 
 " of the Senate. The undersigned desires to meet those charges, if any such there are, 
 " and challenges their exhibition. It is not to be presumed that any honest man, what- 
 " ever his station, would prefer charges against any individual, the responsibility of 
 " which he would hesitate to assume in the broad face of day. The undersigned can- 
 " not persuade himself that your honorable body will permit the character of an Amer- 
 " ican citizen to be thus assailed in the dark, or charges thus made against him to be 
 " shown only in a distorted or perverted form ; he therefore trusts that this, his appeal 
 " to the high sense of honor which he hopes pervades the Senate, to be furnished with 
 " copies of all charges, if any, against his character, and with the names of those who 
 " made them, will not be in vain. And he is ready now, and will be ready at all 
 " times, to repel and refute any and every such charge by whomsoever made* 
 
 "DAVID HENSHAW." 
 
 " February 14, 1844." 
 
 No action is as yet known to have taken place upon this Memorial ; and in the 
 mean time the false construction put upon the decision of that body, is attempted to 
 be fastened upon the public mind as the true one. We will only add on this point, 
 that the pretence of evasion of inquiry on the part of Mr. Henshaw, is thus put at 
 rest ; and further, that if the majority of the Senate rejected Mr. Henshaw upon 
 any charges affecting his moral character, they are bound, as honorable men, to tell 
 him what they were ; or if they rejected him on other grounds, and with no refer- 
 ence to any such charges, they are equally bound, as honorable men, to say so. 
 
 While the nomination of Mr. Henshaw was pending before the Senate, neither he 
 nor his friends deemed it fitting to enter into a newspaper controversy in his personal 
 vindication. The press has consequently taken its full license in assailing him, and 
 finding its first falsehoods uncontradicted, has grown more and more reckless in 
 the invention of new ones, until the silence of conscious rectitude on his part, has 
 been construed into acquiescence in a sentence of condemnation. His official rela- 
 tion to the government having now ceased, and a distinct call having been made 
 upon the Senate for a full disclosure of all matters concerning him, that may have 
 transpired before that body, his friends feel that they are fully at liberty to examine 
 the allegations and calumnies, as far as known or insinuated, which either officially or 
 unofficially, openly or secretly, have been preferred against him. And this refutation 
 is, as its title imports, not the production of Mr. Henshaw, who has not Written a line 
 of it, but of his friends, with his sanction and approval of the facts it contains.
 
 5 
 
 The charges all fall under two general classifications ; first, as to the failure of the 
 Commonwealth Bank, in 1838, and, second, the transfer of lands in South Boston to 
 the United States, in part payment of a debt from the Bank to the United States. 
 In this inquiry the concerns or conduct of the Commonwealth Bank have no 
 bearing, except in their alleged connexion with' Mr. Henshaw. He was at no time 
 during its existence, either president, director, or officer of the Bank. The first 
 directors chosen in 1824, when the Bank went into operation, were Messrs. John K. 
 Simpson, Hall J. How, William Freeman, and John Henshaw in 1825. Messrs, 
 William Parmenter and Adams Bailey were chosen directors in 1826 ; Samuel S. 
 Lewis became a director in 1827 ; Charles Hood, in 1829 ; Oliver Fletcher, in 1830 ; 
 F. S. Carruth, in 1832; and Messrs. Otis Rich and John Mills, in 1835. Mr. Par- 
 menter retired from the direction in 1831 ; Mr. John Henshaw, in 1836 ; Mr. Bailey 
 and Mr. Lewis, in 1837. Messrs, Carruth, Fletcher, Freeman, How, Mills, Park and 
 Hood, were the directors when the Bank failed ; Mr. Simpson, the president, who 
 had held that office since 1832, having deceased a short time before the failure. 
 
 At the time of the failure of the Commonwealth Bank, David Henshaw was not 
 indebted to the Bank, a dollar. He was endorser or surety to a large amount on 
 negotiated paper, not then due, every dollar of which was fully paid ; and in this 
 connexion one prominent fact should be stated, viz., that the Bank or its creditors 
 never lost a cent by Mr. Henshaw, nor by any relative, or connexion, or agent of his, 
 in any form. The large debt of John Henshaw, amounting to some $80,000, and 
 which occurred in the course of regular business transactions, was met, and paid; 
 principal and interest, in specie funds, without diminution or depreciation. 
 
 There is, consequently, no pretext (aside from the relations of the Warren Associ- 
 ation to the Bank) that David Henshaw, or any persons, under, through, or by him; 
 were benefitted or relieved in any respect, by any arrangement preceding, at the time 
 of, or subsequent to the failure of the Bank. 
 
 With this fact established, it must be assumed that if Mr. Henshaw was conusant 
 of, or accessory to, any fraudulent transaction on the part of the Bank, it was without 
 any possible pecuniary benefit or relief to himself, or those for whom he was in any 
 manner responsible ; which is, in substance, to charge a man, not deficient in sagacity, 
 with fraud and crime without motive ; a charge always so improbable, under any 
 circumstances, as to demand strong and positive proof, before it can be entitled to 
 credence. 
 
 So far from gaining by the failure of the Bank, Mr. Henshaw was a direct loser* 
 to the amount of some $14,000, in shares he held in the Bank and its appendage the 
 Commonwealth Insurance Company. Whatever previous knowledge, therefore, it 
 may be assumed he had, that the Bank was about to fail, it is certain that he secured 
 nothing to himself by it, but was a sufferer to the amount stated. And this fact of 
 itself, in the absence of positive proof of previous knowledge, negatives the assump- 
 tion. Thus much for his private and personal relation to the Commonwealth Bank; 
 
 In his official capacity as Collector of Customs, he had in the 
 Bank, at the time of its failure, a general deposit placed 
 to his credit, of ----- - $65,941 77 
 
 Special deposit in specie, - ... 10,028 70 
 
 A balance of Treasury Notes, of ' - 43,350 00 
 
 $119,320 47 
 
 The special deposit in specie, was removed from the Bank about one o'clock, on 
 the llth of January, 1838, the day the Bank failed, and the balance of Treasury 
 notes was withdrawn at two o'clock the same day. This appears from the state i 
 merits of Thomas W. Colburn, Peter Dunbar, William A. Wellman, and Adams 
 Bailey. [See Appendix No. 1.] The withdrawal of these two items of deposit 
 could have no connexion with any anticipated failure of the Bank, because, as 
 special deposits, they could not be appropriated by the Bank or its creditors, and 
 couUl be withdrawn as well after as before the closing of its doors. 
 
 Aside from these specific items, the official relation of Mr. Henshaw to the Bank, 
 left standing to his credit, as Collector, upon its books, at the time of the failure, on
 
 the llth of January, 1838, the sum of 865,941 77 belonging to the United States, 
 and every dollar of this had been deposited by and under authority of the department* 
 and, as will subsequently be seen, was repaid to the United States, upon a judgment 
 against the Bank. In neither capacity therefore, as a private debtor to the Bank, 
 whether as principal or surety, nor as Collector, did the Bank or the United 
 States (aside from the Warren Association, which will hereafter be considered,) 
 lose a dollar by Mr. Henshaw, or his relations, or by any person for whom he was 
 responsible. 
 
 The only charge in this connexion, is, that Mr. Henshaw knew that the Bank 
 was about to fail the evening before it closed its doors, and that he availed himself of 
 this knowledge to call in his specie checks given out as Collector, and paid them in 
 bills of the Commonwealth Bank; but this allegation will be shown, on examination, 
 to be wholly unfounded in fact. 
 
 The concerns of the Commonwealth Bank were investigated by a committee of the 
 Legislature of Massachusetts, in January, 1838, immediately upon the failure of the 
 Bank. It was a period of great and feverish excitement, and of active suspicion in 
 the public mind, with a strong political bias to make the Commonwealth Bank the 
 scape-goat ; and an investigation and report, made under such circumstances, were 
 greatly liable to error. But taking that report as it is, with the corrections of the 
 testimony made by the witnesses themselves, and let it have its full weight as to the 
 point we are now considering, viz., the alleged previous knowledge Mr, Henshaw 
 had of the failure of the Bank, and what is the fair conclusion ? It neither asserts 
 or proves a particle affecting David Henshaw. 
 
 The report affirms (page 15 of Senate document No. 35, for 1S38) that " it 
 appears to the committee that the concerns of the Bank, for a considerable period r 
 have been left very much to the management of its late President, John K. Simpson, 
 its Cashier, Charles Hood, and Hall J. How, one of its directors ; while loans have 
 also been freely granted to some of the other directors." 
 
 The report further says, that " when the directors first knew that they must 
 suspend their operations, is unknown to the committee ; but probably the large 
 majority of them were ignorant of their near approach to the cataract, nor were 
 sensible of the strength of the current that was sweeping them along. A meeting of 
 a few of the directors and their friends was held in the evening of the 10th of 
 January, when, no plan for relief being suggested, it became necessary, at the termina- 
 tion of business on the llth of January, to close the doors of the Bank." 
 
 It is here admitted by the committee, that even a large majority of the directors, 
 did not previously know or anticipate the failure of the Bank, and there is no~ 
 intimation in the report that Mr. Henshaw had any better knowledge of the crisis 
 before it happened. An attempt, aside from the report, has been made to distort the 
 testimony before the committee, of Mr. Hall J. How, into an inference of knowledge 
 on the part of Mr. Henshaw, the evening previous to the failure. In the minutes 
 taken before the committee, Mr. How is represented as making the following state- 
 ment of a meeting at the house of Mr. John Henshaw, on the evening of the 10th of 
 January. 
 
 " Hall J. How. There was a meeting at Mr. John Henshaw's, on "Wednesday 
 evening before the Commonwealth Bank failed. The Cashier was present, 
 John Henshaw, David Henshaw, Charles Henshaw, and myself. I was invited 
 there by John Henshaw. I was not told what the object was. The general con- 
 versation was about the state of the Bank. Mr. David Henshaw inquired if the 
 Bank had been hard pressed. Mr. Hood said he had been a good deal pressed.. 
 and if the bills pressed home hard, it would plague him to meet them. They 
 talked of trying to get help from the other banks. Mr. Hood said it was diffi- 
 cult. I think he said to David Henshaw, that he had applied to Mr. Stone, the 
 president of the Suffolk Bank, for assistance. Hood said Stone had declined to 
 help him. It was mentioned by Hood, that if the bills pressed home hard, and he 
 could not get help, he could not meet them. David Henshaw said, 'you must stir 
 your stumps,' There was some talk about the government money; but I do no%
 
 " recollect what it was. D. Henshatv seemed to express a good deal of surprise at 
 " the Cashier's statement. I do not recollect that the Warren Association was 
 " named. It was agreed, unless we could get help, it would be impossible for us to 
 " meet the bills or balances. It ivas finally understood that we must stop." 
 
 The latter part of this statement, as taken before the committee, on the 6th of 
 February, 1838, was disclaimed by the witness, Mr. How, in a note of February 
 16, 1838, as soon as his attention was called to it. He there says, that the report of 
 his testimony is inaccurate in some particulars, that he had no recollection of read- 
 ing the minutes taken by the committee, or hearing them read ; and adds, " I think 
 " I could not have stated that it Avas agreed and finally understood that the Bank 
 " must stop. It was only understood that the Bank must stop in case it ivas pressed 
 " to pay its bills and balances, and could not obtain assistance." 
 
 This explanation, published in 1838, has never been contradicted. Mr. John 
 Henshaw, one of the parties present at that meeting, also stated on the 16th of Feb- 
 ruary, 1838, that " from the tenor of the conversation, I apprehended no immediate 
 " danger to the Bank, and when the conversation ceased upon that subject, I sup- 
 " posed the Bank would make an effort to raise the requisite means from its 
 " resources." 
 
 Taking this evidence together, (and it is the whole on this point,) it appears, that 
 so far from anticipating the embarrassment of the Bank, David Henshaw expressed 
 a good deal of surprise at the Cashier's statement ; that he urged active exertion to 
 meet the difficulties, and that there was no understanding then that the Bank was 
 to stop, except in the alternative that it was pressed to pay its bills and balances, 
 and could not obtain assistance ; and at that time of general suspension and want 
 of confidence, the same might have been said of almost every bank in the Com-, 
 mon wealth. 
 
 A further attempt was made to bring home to Mr. Henshaw a previous knowledge 
 of the failure of the Bank, through the alleged testimony of Mr. Albert Fitz, the 
 discount clerk. At the time of the investigation, before the committee of the Legis- 
 lature, the Boston Atlas, in its pretended report of the testimony, made Mr. Fitz 
 say, that " the specie deposit of the Collector, $60,028 70, was drawn out by him 
 the middle of the forenoon on the llth of January." No such testimony of Mr. 
 Fitz appeared in the evidence reported by the committee of the Legislature, and in a 
 note, published the 16th . of February, 1838, Mr. Fitz himself declares, " J gave na 
 suck testimony." The printed minutes of the evidence, appended to the report of the 
 committee, made Mr. T. W. Colburn say, that " the specie deposit of the Collector, 
 $10,028 70, was drawn out by him about the middle of the forenoon of llth of 
 January ;" but Mr. Colburn, in a note of February 16, 1838, then published, affirmed 
 that, so far as he could recollect, it was bettoeen the hours of tioelve and one, and that 
 his testimony was taken verbally by the committee, and was not read over to him. 
 And in point of fact, from the most conclusive testimony, the actual time of the 
 withdrawal of the specie deposit is proved to have been between one and two 
 o'clock, of the llth of January, and the balance of Treasury notes was drawn out 
 at two o'clock the same day. [See Appendix No. 1.] 
 
 The only other, and the main fact relied on, to prove the assertion that Mr. Hen-. 
 show knew of the anticipated failure of the Bank, is the publication of the follow- 
 ing notice in the Morning Post of Thursday morning, the llth of January, 1838, 
 the day of the failure : 
 
 " Notice. Persons holding checks against the Custom House, are requested to 
 present them either at the Bank or at this office, for payment, immediately. 
 
 DAVID HENSHAW, Collector." 
 
 The inference attempted to be drawn from this notice is, that Mr. Henshaw, 
 knowing the Bank was about to fail, called in these checks for the purpose of having 
 them paid off in the bills of the Commonwealth Bank ; and upon this slight pretext 
 is founded the newspaper allegation of " cheating the poor fishermen, by palming off 
 upon them the bills of a broken bank." 
 
 But the whole allegation fail?, from the single fact that these " specie checks "
 
 8 
 
 neVer went to the fishermen, and no fisherman ever had one of them.* '.they were 
 issued for debentures, (that is, for refunded duties or drawbacks on the exportation 
 of imported goods,) were due and payable in specie, and though nominally payable 
 at the Commonwealth Bank, they were well known to be payable at the Custom 
 House in specie, whenever demanded. In point of fact, not one of these checks was 
 ever presented at the Bank, in consequence of the above published notice, but they 
 all came to the Collector's office, and were there settled in specie. Mr. Henshaw 
 was just retiring from the office, and the return of the specie checks was necessary, to 
 enable him to close his accounts, and hand the business over to his successor. 
 
 Upon the face of this allegation appears the utter inadequacy of motive for such a 
 proceeding. Mr. Henshaw, as Collector, could derive no possible benefit from pay- 
 ing the Collector's checks in the bills of the Bank. The deposits to his credit in the 
 Bank, as Collector, as will be proved hereafter, were not made by him, but passed to 
 his credit after the suspension of specie payments, by direction of the Secretary of 
 the Treasury. If his checks, which it was optional with the creditors of the United 
 States to take or not,were paid by the Bank in its bills, the amount so paid would bei 
 charged against his deposit, and could avail him nothing. It must therefore have been 
 a gratuitous and uncalled for proceeding on his part, to * cheat the poor fishermen," or 
 the holders of his checks, for the sole and exclusive benefit of the United States, and 
 that too, to merely the extent of the discount upon the inconsiderable amount which 
 it was likely this notice would call in during the banking hours of the llth of Janu- 
 ary, on which day, and on the evening before, it is assumed, in order to carry out this 
 charge, that he knew the Bank would fail ! As Mr. Henshaw himself said, in his 
 notice of this assertion, in 1838,-^-" the improbability that any man of common sense 
 " would attempt to cheat the poor fishermen for the sole and exclusive benefit of the 
 " United States' Treasury, is so strong, that this charge could gain little belief from 
 " an intelligent community." 
 
 The allegation, however, is disproved, not merely by its inherent improbability, but 
 by positive evidence. It was first made in the Boston Atlas, of January, 1838. and 
 was then met by the following published statement and evidence ; 
 
 David Henshaw's statement, in 1838. 
 
 " The first that 1 knew of the embarrassment of the Bank, w r as on Wednesday 
 " night, January 10th, and I was surprised at the information. I had been for some 
 " weeks prior to the 8th, confined to my bed by sickness. From the 8th to the time 
 " of its failure, I had Treasury notes enough in the Bank to meet all my checks 
 " drawn upon it. The first 1 knew that the Bank would stop, was near one o'clock, 
 "P. M., on Thursday, the \\th. The advertisement, calling in my outstanding 
 "checks, which appeared on the llth of January, and about which so many 
 "unfounded charges and unjust imputations have been made, was written, on the 
 " suggestion of William A. Wellman, Esq., as will appear by his letter herewith 
 " given, before I knew that the Bank was embarrassed, and with no reference what- 
 " ever to that subject. DAVID HENSHAW." 
 
 Mr. Wellntan's testimony, in 1838. 
 
 "Custom House, Boston, Feb. 16, 1838. 
 
 " Your note of this date, asking me to state ' under what circumstances, on whose 
 1 suggestions, and at what time the advertisement calling in the outstanding checks 
 " against the Custom House, was Written and sent to the printer,' is before me. In 
 "reply, I have to state, that on the 9th of January last, I was requested by you to 
 " take charge temporarily of the cash affairs of this office ; that on the morning of 
 
 * Mr. William A. Wellman. the temporary Cashier, and now an officer of the Customs, thus 
 described these checks, in a statement made by him Feb. 16, 1838 : 
 
 " Specie checks, so called, were checks drawn by the Collector on the bank, but received, at thg 
 Option of the holders, in payment of government dues at the Custom House, instead of specie. 
 From the suspension of specie payments, in May, 1837, up to January 20th, 1838, there were 
 issued and redeemed nearly eleven hundred thousand dollars in amount of those checks, to the 
 very great convenience of the mercantile public."
 
 " the 10th of January, I suggested to you the necessity of ceasing to issue specie checks, 
 " and of calling in those outstanding, to enable me to close the accounts of the office ; 
 " and that on the instant of the suggestion, you did, in my presence, write the adver- 
 " tisement referred to, and called for the messenger to take it to the printer." 
 
 "WILLIAM A. WELLMAN, 
 
 " Late temporary Cashier of the Boston Custom House" 
 " HON. DAVID HENSHAW, 
 
 Late Collector" 
 
 Notwithstanding this express testimony of Mr. Wellman, (who was of opposite 
 opinions to Mr. Henshaw in politics, and has since held the office of Deputy Collec- 
 tor under Hon. Levi Lincoln,) the publication of that notice has continued to be 
 cited by the newspaper calumniators of Mr. Henshaw, as proof of his intent " to cheat 
 the fishermen," and palm off the bills of a bank he knew was about to fail. This 
 single fact serves to show with what pertinacity refuted falsehood and unfounded 
 surmises are adhered to and persisted in, to give color to charges against Mr. Hen- 
 shaw. 
 
 Mr. Wellman's testimony in 1838, proved, that the notice was written and sent to 
 the paper, at his, Mr. Wellman's, suggestion, on the morning of the 10th of January. 
 This was the morning of the day upon the evening of which day the meeting was 
 held at Mr. John Henshaw's house, at which last time any knowledge of the embar- 
 rassment of the Bank was first brought home to David Henshaw. This is sufficient 
 to show that the issuing of that notice could have had no possible connexion with the 
 failure of the Bank. But there were other reasons for its publication, which Mr. 
 Henshaw withheld, and desired Mr. Wellman to withhold at the time, that will place 
 this matter in a light honorable to him in the estimation of every fair-minded man. 
 
 On the 8th and 9th of January, 1838, a deficiency of between four and five thousand 
 dollars was discovered in the accounts of the then Cashier of the Custom House. The 
 extent of the defalcation was not known. Mr. Henshaw immediately requested Mr. 
 Wellman to take charge of the cash concerns of the office, and ascertain the extent of 
 the deficit. In the business of the office, " specie checks," as above explained, had 
 been drawn by the Cashier and signed by the Collector, on the Bank, from the period 
 of the suspension of specie payments, in May, 1837 ; and these checks, which com- 
 manded a premium over current bank notes, about equal to the premium on specie, 
 were received at the option of the holders, in payment of government dues at the 
 Custom House, instead of specie, or in specie if required. To close the cash accounts 
 of the office, and ascertain the amount of these checks which the Cashier might have 
 drawn and got signed, almost ad libitum, it was necessary, in the opinion of Mr. Well- 
 man, to whom that duty was intrusted, to cease issuing specie checks, and to call in 
 thoSe outstanding. This led to his suggestion to the Collector, to that effect, on the 
 morning of the 10th of January, which was followed by the notice in question, the 
 propriety and necessity of which are self-apparent. The defalcation of the Cashier 
 was subsequently restored by his friends, and from motives of respect for them and 
 kind feeling toward the erring party, Mr. Henshaw has never publicly alluded to the 
 circumstance, and has submitted to the unjust imputation cast upon him, which the 
 publication of that fact would at once have removed. The additional statement of 
 Mr. Wellman will show how unjustly Mr. Henshaw has been accused in this par- 
 ticular. [See Appendix, No. 2.] 
 
 In his recent letter to the Hon. Mr. Saunders, Mr. Henshaw has said, that " the 
 first fisherman is yet to be found, who ever received a dollar of the Commonwealth 
 Bank money as stated." And this might well be affirmed from the fact that no 
 fisherman has ever presented or intimated to Mr. Henshaw that he had on hand a 
 dollar of the bills of that Bank, received in the manner alleged. Had any fisherman 
 so suffered by depreciated bills, it is almost certain he would have made it known 
 to Mr. Henshaw. 
 
 The Boston Atlas of February 3, attempted to disprove the above by an anonymous 
 publication, giving an amount of bills alleged to have been in the hands of fishermen 
 and shoresmen after the failure of the Bank, on which bills it is averred they lost a
 
 10 
 
 discount of just $300. The assertion of Mr. Henshaw, in his letter to Mr. Sane- 
 ders, was made on the fact that no fisherman had ever complained to him or applied 
 for redress, and also on the authority of a gentleman of Marblehead, who stated that 
 the president of an insurance company, in that town, had inquired of all the masters 
 of fishing vessels who had received bounties at that time, and he could not find a 
 dollar in the hands of any of them. This is probably correct, and the statement in 
 the Atlas to the contrary, notwithstanding its details, is not to be relied on. The 
 fact that it includes the pension money in this list, leaving it to be inferred that Mr, 
 Henshaw had something to do with those payments, is suspicious, and is marked by 
 the usual unfairness of that mendacious press. And, moreover, it implies that the 
 fishermen received this money of the Bank on the twelfth of January, when in fact 
 the Bank failed on the eleventh ! So that if any fishermen had Commonwealth Bank 
 bills which were received on the 12th of January, they could not have got them from 
 Mr. Henshaw, nor from the Bank, for no checks of his were paid by the Bank after 
 the llth. But taking this anonymous statement as it is, it amounts to the absurd 
 charge that David Henshaw volunteered to defraud the fishermen of $300 for the 
 sole and exclusive benefit of the treasury of the United States, out of an issue of 
 $200,000 in fishing bounties paid in that year f 
 
 We have now examined all the facts which go to show any previous knowledge of 
 or connexion with the failure of the Commonwealth Bank, on the part of Mr. Hen- 
 shaw. There is not a particle of evidence that attaches any knowledge to him, 
 previous to the meeting on the evening of the 10th of January, and that is proved to 
 have been, not a knowledge that the Bank would fail the next day, but that it was in 
 an embarrassed condition and hard-pressed, as were most of the banks at that period. 
 The positive denial of Mr. Henshaw, and all the concurring testimony as to the 
 interview, and what preceded and followed it, go to prove the negative, and to show 
 that Mr. Henshaw had no knowledge that the Bank would fail, until about one o'clock 
 on the day of its failure. 
 
 There is no act which Mr. Henshaw did previous to the closing of the doors of the 
 Bank, that he would not have done, had be been entirely ignorant of the condition of 
 the Bank until one o'clock on the day of the failure. These acts, and the only acts r 
 are, first, the publication of the notice to call in the specie checks. This is fully 
 explained by Mr. Wellman, and that notice would have been made under the circum- 
 stances, had the Bank never failed. 
 
 Second. The withdrawal of the special specie deposit between one and tw& 
 o'clock, and of the balance of Treasury notes at two o'clock, on the day of the failure ; 
 and both these acts are consistent with, and were consequent upon, the knowledge, at 
 about one o'clock that day, that the Bank would fail. 
 
 All of these acts were for the benefit of the United States, and not for the benefit 
 or security of Mr. Henshaw. The blind inconsistency of the calumniators of Mr. 
 Henshaw exhibits itself in their charging him, at one moment, with dishonestly with- 
 drawing funds from the Bank, in consequence of his previous knowledge that it 
 would fail ; and in the next, for Avant of fidelity to the government in not withdraw- 
 ing these funds ! His principal accuser, the Boston Atlas, charged him, in 1S3S, 
 with fraudulent conduct in calling in his specie checks to save the government the 
 discount on the bills at the expense of the poor fishermen ; and now that same paper, 
 under date of February 3, 1844. reverses that charge in the following form: "He 
 (Mr. Henshaw) unquestionably knew the state of the Bank long before it failed, and 
 " he neglected to take the proper means to secure the moneys belonging to the 
 " government. His statement that the moneys were deposited there by authority of 
 " the government, amounts to nothing. By whatever authority the deposit was 
 " made, it Avas his duty, if he saAV the impending danger, to have looked out for the 
 " safety of the government funds." 
 
 So that, according to the logic of his accusers, if Mr. Henshaw did remoA'e the funds 
 of the United States, he was guilty of fraudulent conduct in so doing; and if he did not 
 remove them, he Avas guilty of official misconduct in not looking out for the safety of 
 those funds ! And again, by the same process of reasoning, the Atlas first charges 
 Mr. Henshaw with conniving at fraud to ?r>ve hi? responsibility for deposits made in
 
 the Bank without authority, and then says it amounts to nothing whether the 
 Collector made the deposits with or without the authority of the government ! 
 
 The answer to all this, is, that Mr. Henshaw did not look out for himself when the 
 Bank failed, but he did look out for the United States. He lost the value of all his 
 shares in the Bank, and did not provide for himself, as he might have done, by their 
 sale or transfer, had he anticipated the failure of the Bank. He took no measures to 
 secure or relieve himself upon his large endorsements, which he also might have 
 done, had he availed himself of a previous knowledge of the failure. He was not 
 personally responsible for the checks he had issued, nor for the deposits made by the 
 government, these being exclusively official acts ; and yet the only acts he did, after it 
 is pretended he knew the Bank would fail, were directed solely to preserving the 
 funds of the United States. 
 
 This brings us up to the failure of the Bank, and disconnects David Henshaw from 
 it, in any relation that he could or did derive benefit from, by anticipating its failure; 
 and thus the entire allegation, and its consequent calumnies, founded upon his 
 assumed previous knowledge of the failure, or of any act of his connected with that 
 failure, which was disreputable or improper in the highest mercantile or moral sense, 
 utterly fails. 
 
 We will now examine the relation of Mr. Henshaiv to the Bank, after its failure, 
 and to the securities which the United States held against the Bank. 
 
 On the 13th of January, 1838, the debt due the United States, as subsequently 
 ascertained, was $338,797,94. 
 
 The items that made up this sum were as follows : 
 
 Deposit to the credit of the Collector, - - $65,941 77 
 
 Deposit of Messrs, Shaw, How and Lewis, as Commissioners 
 
 for building the Custom House, - "'-- ;''" ""-'. 71,55538 
 John K. Simpson, as Pension Agent, - ">' ,. - \-- v - 152,684 21 
 Credit to the Treasurer of the United States, balance stated at 
 $51,749 90, but found to be - - - - ^ ->',;>' . 
 Deposit to the Post Office Department, - '-'/ " ''. "*'[ . - 
 Deposit, Army Paymaster and Ordnance, ""*" '*"T' ; 
 
 $338,797 94 
 
 David Henshaw held no relation, whatever, as principal, or surety or depositor, to 
 either of these items, except the deposit to the credit of the Collector, of $65,941 77. 
 
 It has been affirmed and reiterated that the United States had a legal claim 
 against him for this sum; but such was not the fact. For the purpose of simplifying 
 the inquiry, we will here trace this item through to its final settlement, because more 
 stress has been laid upon it by Mr. Henshaw's accusers, than any other, to charge 
 him with indebtedness to the United States ; and if he was not held for this, he was 
 in no way held to the government for a dollar. 
 
 To prove that the Collector was liable for this sum, a portion of the report of the 
 Solicitor of the Treasury (Mr. Gilpin) to the Secretary of the Treasury, (Mr. Wood- 
 bury,) dated, January 25, 1839, and a letter of the Solicitor to the District Attorney, 
 (Mr. Mills,) of February 9, 1838, are relied on ; and it has been asserted, over and 
 over again, but never proved, that the government had a good claim on David Hen- 
 shaw for this deposit. This was disproved, and the conduct of Messrs. Henshaw and 
 Mills, in all these transactions, fnlly approved by this report of the Solicitor and 
 Secretary, which is now quoted in part, to accuse Mr. Henshnw. 
 
 The report of the Solicitor of the Treasury above alluded to, is found in document 
 No. 120, of the House of Representatives, of the 25th Congress, January 26, 1839, 
 which will be hereafter referred to for another purpose. [See Appendix I.] 
 
 The Solicitor there says : 
 
 "On the 24th of January, (1838,) the Secretary of the Treasury informed this 
 * office that, in addition to the balance reported on the 18th, as due (from the Bank,) 
 " there were considerable sums of public money placed there by collecting and 
 ** disbursing officers, and still remaining on deposit in the Bank, which were included 
 "among its liabilities to the United States, and for which the sureties in the official
 
 " bond were considered by the Treasury Department to be liable, as well as the officers, 
 "personally, who made the deposits. Instructions were immediately given to the 
 " District Attorney to this effect." 
 
 Mr. Woodbury's letter of the 24th, above referred to, does not express the opinion 
 that the officers who had made the deposits were personally liable ; and if it had 
 done so, it would have attached that liability, not to Mr. Henshaw, but to the Secre- 
 tary of the Treasury ; because, as will be seen hereafter, Mr. Henshaw never depos- 
 ited a dollar, except special deposits, in the Commonwealth Bank after its suspension 
 in May, 1837. 
 
 The letter from the Treasury Department, upon which the Solicitor wrote his 
 instructions to the District Attorney, Mr. Mills, is as follows : 
 
 " Treasury Department, January 24, 1838. 
 
 " SIR : Besides the balance standing against the Commonwealth Bank, upon the 
 " books of the Treasury, it is understood that considerable sums of public money, 
 " which were placed there by collecting and disbursing officers, still remain on 
 " deposit with that Bank. As these balances are included in the liabilities of the 
 " Bank to the United States, and are covered by the bond executed in its behalf, I 
 " have to request that the District Attorney may be instructed to keep them in view 
 " in any course he may adopt, for the protection of the interests of the United States. 
 " Their amount can be ascertained at Boston. 
 
 "LEVI WOODBURY, 
 
 Secretary of the Treasury." 
 " To H. D. GILPIN, ESQ., 
 
 Solicitor of the Treasury." 
 
 The above letter, enclosed in the one from the Solicitor to the District Attorney, 
 was received by that officer on the 30th of January, 1838, and formed the basis of 
 his instructions, as will be seen by the District Attorney's report to the Solicitor, of 
 August 6, 1838. [See Appendix'D.] 
 
 In pursuance of these instructions, the District Attorney, on the same day they 
 were received, commenced suits against the several sureties of the Bank, on the 
 deposit bond of February 14, 1837, laying the damages at 8400,000, and including 
 the balance to the credit of the Collector, of $65,000. David Henshaw Avas not on 
 the deposit bond, and no action was commenced, nor directed to be commenced 
 against him, nor against either of the other disbursing or collecting officers. 
 
 The other letter relied on to establish the alleged liability of David Henshaw, is 
 the following, to the District Attorney : 
 
 "Office of the Solicitor of the Treasury, Feb. 9, 1838. 
 
 " SIR : I now enclose you certified copies of all the bonds which you may have 
 " occasion to use in your proceedings against the Commonwealth Bank of Boston. 
 " and also of the contract of that institution with the Secretary of the Treasury, 
 " dated 15th of July, 1836. It is considered by that officer that the bond of the 
 " Bank given on the 14th of February, 1837, embraces all moneys and funds what- 
 11 soever, belonging to the United States, or deposited therein on its behalf, by any of 
 " its officers, with which it was chargeable at the time of its failure. All these, there- 
 " fore, you will include in your legal proceedings, and omit no measure necessary to 
 " give notice and enforce the priority of the United States against the Bank, or any 
 " deceased or insolvent persons into whose hands their property may have come. 
 
 " Very respectfully, 
 
 H. D. GILPIN, 
 Solicitor of the Treasury." 
 " To JOHN MILLS, ESQ. 
 
 U. S. District Attorney, Boston." 
 
 By these instructions, and the legal proceedings consequent thereon, the United
 
 13 
 
 States ratified and assumed as its own, the acts of all its agents in relation to the 
 deposits standing to their credit in the Commonwealth Bank. 
 
 The legal construction is perfectly clear on this point. These several deposits 
 were either lawful or unauthorized as to the agents. If lawful, or if directed by the 
 Department, the Bank, and not the agents were liable. If unauthorized and unlaw- 
 ful, the United States must look to its agents and their sureties, and not to the Bank. 
 If David Henshaw had been liable for unlawfully depositing the sixty-five thousand 
 dollars, the United States had its remedy against him and his sureties, but it could 
 riot sue the Bank for that sum, under a bond covering only lawful deposits, thus 
 ratifying and confirming the deposit as lawful, and then claim the same sum of Mr. 
 Henshaw, on the ground of a violation of official duty, in making the deposit ! 
 
 The United States made its election by suing the Bank for all the deposits, and 
 here the individual liability of David Henshaw, as late Collector, and of Messrs. Robert 
 G. Shaw, Hall J. How, and S. S. Lewis, as Commissioners in the Custom House, 
 and of the other disbursing officers who had balances in the Bank to their account, 
 was at an end, if indeed any such liability ever existed. 
 
 And in point of fact and law no such individual liability ever existed. 
 
 In the case of the Custom House Commissioners, their deposit was made before 
 the Bank suspended in May, 1837. 
 
 In the case of David Henshaw, he did not deposit the sixty-five thousand dollars 
 or any part of it, after the suspension, but that sum and more was passed to his 
 credit, without his agency, by the Treasury Department, after the suspension. 
 
 A misapprehension in some, and a wilful misrepresentation in others, on this point 
 of the origin of the balance left when the Bank failed, has been the source of many 
 groundless charges against the late Collector. 
 
 Mr. Henshaw tendered his resignation to President Jackson, in the early part of 1836, 
 but remained in office, at the special request of the President, till the end of his term, 
 the 4th of March, 1837. He again tendered his resignation to President Van Buren, 
 at that time, but was requested by him to remain, which he did until the fall of 1837, 
 when he again resigned, to take effect on the 1st of January, 1838; and had a succes- 
 sor been appointed at that time, Mr. Henshaw would not have been in office when 
 the Bank failed. But his successor was not inducted till the 20th of January, 1838, 
 and then this balance remained on the books of the Bank. 
 
 The origin and legality of all the deposits made in the Commonwealth Bank, and 
 out of which this balance arose, will be seen from the following facts. 
 
 Previous to any act of Congress upon the subject, and when by the act of Presi- 
 dent Jackson, in the removal of the deposits, the State Banks were substituted for 
 depositories of the public money in 1833, Mr. Henshaw, as Collector of the port of 
 Boston, was directed to make deposits of the public money in the Commonwealth 
 Bank, which he accordingly did, and his proceedings in this respect, Avere fully 
 approved by Mr. Secretary Taney, the 5th of October, 1833. 
 
 The details of these proceedings were as follows. On the 26th of September, 1833, 
 Mr. Secretary Taney notified Mr. Henshaw of the determination to remove the 
 deposits, and that he had selected the Commonwealth Bank and Merchant's Bank 
 in Boston, for depositories. Contracts to this effect were forwarded to the Collector 
 for those Banks to execute, and instructions given to make deposits therein, after the 
 30th of September, of all the public moneys, until further orders of the Department* 
 [See Appendix No. 3.] 
 
 Mr. Henshaw's reply to the Secretary, of September 30th, enclosing the contracts, 
 suggested a mode of dividing the public business between the two Banks, which was 
 acceptable to them, and would require the Collector to keep an account with but one 
 Bank, thus saving half the labor. [See Appendix, No. 4.] This modification was 
 adopted and fully approved by the Department, as will be seen by Mr. Taney's let- 
 ter of October 5th, 1833. in which he says, " your proceedings are approved by the 
 Department." [See Appendix No. 5.] 
 
 The deposits continued to be made under the above authority, until the passage 
 of the deposit act of June 23d, 1836, by Congress. The 15th of July, 1836, the 
 Bank executed a contract " to discharge all the duties and services prescribed by the
 
 14 
 
 Act of the 23d of June, 1836," and on the 14th of February, 1837, a bond was exe- 
 cuted with sureties, for the performance of the contract entered into by the Bank on 
 the 15th of July, 1S36. Under this arrangement between the Department and the 
 Bank, which was wholly independent of Mr. Henshaw, the deposits continued to be 
 made by authority of law, until the Bank, with all others in the State, suspended 
 specie payments the 12th of May, 1S37. 
 
 The Commonwealth Bank accordingly ceased to be a deposit bank, on its sus- 
 pension of specie payments, in May, 1837, and was notified to that effect the 18th 
 of that month. At that time, Mr. Henshaw had to his credit as Collector, in that 
 Bank, the sum of SSO.S21 49, which had been deposited under the above instructions 
 and authority, before the suspension, and he so advised the Department in his letter 
 of May 23d, 1S37, giving the items ; [for which see Appendix No. 6.] The accru- 
 ing salaries and expenses of his office were paid out of this balance of $80,000, 
 which would have been wholly exhausted by that appropriation ; so that every dollar 
 he had placed in the Bank before the suspension, under the deposit act, would have 
 been withdrawn, and no balance have remained to his credit when the Bank failed, 
 but for the following circumstances. 
 
 After the suspension, to wit, on the 21st of July, 1837, the Secretary of the Treas- 
 ury caused to be placed to the credit of Mr. Henshaw, in the Commonwealth Bank, 
 the sum of $30,500, as so much of the balance which was due the U. States when 
 the Bank suspended in May, 1837. The authority for this credit, and the reasons 
 that required it are explained in the Secretary's letter to Mr. Henshaw, which is 
 subjoined. 
 
 " Treasury Department, July 17, 1S37. 
 
 44 SIR, As it will become necessary, from time to time, to authorize the Collectors of 
 ' such of the Districts in the vicinity of Boston, to draw upon you for money to 
 ' defray the current expenses of their Districts, as do not collect revenue enough for 
 ' that purpose ; in order to place you in funds for this object, the Treasurer of the 
 ' United States has been instructed to require the Commonwealth Bank, in your 
 ' city, to place to your credit, as Collector of the Customs, a portion of the moneys 
 ' deposited by you in that institution to the credit of the Treasurer, previous to the 
 ' suspension of specie payments, and which have not been brought into the Treasury 
 ' by covering warrant. The sum of thirty thousand five hundred dollars, will, accord- 
 ' ingly, be directed to be placed to your credit, in the aforesaid Bank, and be subject 
 ' to your check or draft. 
 
 " Respectfully, &c. 
 
 DAVID HENSHAW, Esq. " LEVI WOODBURY, 
 
 Collector, $-c." Sec'y of the Treasury." 
 
 The Bank was accordingly notified of this transfer of credit, of which the Deputy 
 Collector was informed by the Cashier, as follows : 
 
 " COMMONWEALTH BANK, ) 
 Boston, July 21, 1837. \ 
 " A. BAILEY, Esq. 
 
 " Sm, I have received instructions this day. to place to the account of David 
 " Henshaw, Collector, thirty thousand five hundred dollars, from the Secretary of the 
 " Treasury, by John Campbell, Esq., Treasurer of the United States, which amount 
 " has been credited as directed. 
 
 " Respectfully. 
 
 ''CHARLES HOOD, Cashier." 
 
 In December, 1837, it became necessary to provide for the fishing bounties, and 
 the Secretary of the Treasury sent to Mr. Henshaw, for that purpose, a Treasury 
 check upon the Commonwealth Bank for the further sum of $42,000, which was 
 thus transferred from the credit of the Treasurer of the United States to that of the 
 Collector, to pay the fishing bounties.
 
 This fact was stated in the testimony of Thomas W. Colburn, Teller of the Bank, 
 before the committee of the Massachusetts Legislature, as appears in their printed 
 report. Mr. Colburn there says, " the Collector, Dec. 21, 1837, deposited a draft for 
 $42,000, drawn by the Treasurer (of the United States) on the Commonwealth 
 Bank." [See Appendix, page 60.] 
 
 The necessity for this arrangement, on the part of the Department at Washington, 
 to meet the fishing bounties not only in Massachusetts and Maine, but in Rhode 
 Island and Connecticut, the Collectors of which were authorized to draw upon Mr. 
 Henshaw, will be seen by instructions to the Collector of Boston. [See Appendix 
 Nos. 7 and 8.] 
 
 It will be seen, therefore, that the sum of $72,500 was thus placed to the credit of 
 the Collector, by the Treasury Department, after the Bank ceased to be a deposit bank. 
 There was at no time any other deposit to the credit of Mr. Henshaw, made by 
 him or the Department, (except special deposits which were withdrawn,) in the Com- 
 monwealth Bank, during the period of suspension ; so that the sixty-five thousand 
 dollars to his credit, which remained in the Bank at the time of its failure, was a less 
 amount than was placed there after the suspension, by the Treasury Department. 
 
 The manner in which that balance arose, was distinctly stated to the Treasury 
 Department, by Mr. Henshaw, at a subsequent time, in the following communication : 
 
 Extract of a letter from David Henshaw, to Hon. Levi Woodbury, Secretary of the 
 Treasury, dated Feb. 16, 1838. 
 
 " Since my letter to you of May 23, 1837, stating the balance then in the Com- 
 " mon wealth Bank, there have been only two sums placed to my credit there, viz., 
 " $30,500 ; ordered to my credit, as will appear by your letter of July 17, 1837, and 
 " -?42,000 sent me in December last to pay bounties on fishing vessels. The last 
 " sum ($42,000) was put to my credit, and has been applied to the purposes for 
 " which it Avas remitted. The difference between the sum reported to be in the 
 " Bank, in my letter of May 23, adding thereto the sum of $30,500, ordered to my 
 " credit in your letter of July 17, and the sum now on hand, has been paid out in 
 " various disbursements for the United States. 
 
 " I beg you to understand that I have no difference with Mr. Bancroft, (his successor,) 
 " on account of this balance (the $65,000.) It is an amount belonging to the United 
 " States, standing to my credit as Collector, in the Commonwealth Bank, placed there 
 " in conformity to Treasury instructions, and which I am ready to transfer to my 
 " successor, or to any other person legally authorized to receive and receipt for it." 
 
 We have thus conclusively established the fact, that not a dollar of the balance of 
 $65,941 to the credit of the Collector, in the Commomoealth Bank, ivhen it failed, 
 was placed there by David Henshaw, after the Bank suspended and ceased to be a 
 deposit bank, under the deposit act of 1836. 
 
 How then could the United States have any personal claim whatever upon the 
 Collector, for that balance, or any part of it, either in law, equity or honor? 
 
 The Collector's deposits, previous to the suspension in May, 1837, were of course 
 lawful, because they were authorized and required by force of law ; and the subse- 
 quent deposits were, in fact, made by credits passed to him through the direct action 
 of the Treasury Department. The disbursements subsequently made by the Collec- 
 tor, from this fund, up to the failure of the Bank, left the balance of the $65,000 in 
 question, and for this David Henshaw was in no way personally liable. 
 
 This statement was never called in question by the Secretary or Solicitor of the 
 Treasury. In the final settlement of his accounts, as Collector, after he had resigned, 
 Mr. Henshaw claimed to be credited, of course, with this sum of $65,941, and a 
 further sum on emolument account for the year 1829 ; and a third sum for amount paid 
 to Aveighers and guagers in 1836 and 1837, under the construction of the law given 
 by Judge Davis and Judge Story, in the District and Circuit Courts of the United 
 States, in the cases of William Pearce, Collector at Gloucester, and R. D. Harris, 
 Navy Agent. These items had to pass through the subordinate accounting officers, 
 and the question of allowance of these item? was there raised.
 
 16 
 
 The Secretary of the Treasury (as is stated by him in his letter to Hon. James 
 K. Polk, Speaker of the House, Feb., 1839, No. 180) " not possessing, by law, any 
 authority to settle said accounts, or interfere and control the adjustment of any allow- 
 ances claimed, left the accounting officers and the Solicitor to discharge their respec- 
 tive duties in conformity to the acts of Congress, as applicable to all the facts of the 
 case." 
 
 Mr. Henshaw urged the adjustment of his accounts, and correspondence to that 
 effect was had with the Department, and with the President. On the 15th of Novem- 
 ber, 1838, the First Auditor (Mr. Miller) made his report to the Comptroller of the 
 Treasury, at which time he had no knowledge of the origin of the deposit, and no 
 official notice that the United States, by instruction of the Treasury Department, had 
 sued the Bank and its sureties on the deposit bond, for this same sum of $65,941. 
 In his letter of November 15, 1838, the First Auditor says, " I may, perhaps, not fully 
 Understand the Avhole transaction, and, therefore, do not wish to attach any blame to 
 Mr. Henehaw. All I mean to say is, that, from my understanding of the case, I 
 found it so much involved in difficulties, that I did not feel authorized to give the 
 credit claimed by Mr. Henshaw." 
 
 It is obvious, that the First Auditor must have been entirely ignorant of the fact 
 that Mr. Henshaw had made no deposits since the suspension, and that the balance 
 in the Bank was the proceeds of the credits to Mr. Henshaw, placed there directly 
 by the Treasury Department. Had he understood this part of the case, it could not, 
 in his or any man's mind, have been involved in the slightest difficulty. 
 
 On the 9th of February, 1839, the Auditor made a further statement to the Comp- 
 troller, to whom the accounts had been referred, as follows : 
 
 " Treasury Department, Pel. 9, 1S39. 
 
 " SIR, In my letter to you of the 6th instant, in relation to the balance on the 
 ' account of David Henshaw, Esq., and enclosing a copy of my letter to the Secre- 
 1 tary of the Treasury, of the 16th of November last, I stated I had received no 
 ' reply to that letter. I should have stated, however, further, that I did receive a 
 ' communication from the Solicitor of the Treasury, to whom my letter had been 
 ' referred, informing me that the District Attorney "had included the sum of 865,- 
 ' 941 77, which was to the credit of Mr. Henshaw, in the Commonwealth Bank, 
 ' in the judgment taken in favor of the United States against the Bank. He also 
 ' sent me a copy of a letter from the Secretary to him, instructing him to advise the 
 ' District Attorney to include in the judgment, the sums to the credit of the Collector 
 ' and disbursing officers, as well as that to the credit of the Treasurer. Still, how- 
 ' ever, as both the Solicitor and the Secretary were silent as to whether the taking 
 ' of this judgment was to be regarded as a collateral security or an entire discharge 
 ' of Mr. Henshaw, I thought the safest course to decline giving the credit claimed 
 ' by Mr. Henshaw, until further advised upon the subject. 
 
 " Respectfully, &c. 
 
 " JAMES N. BARKER, Esq." J. MILLER." 
 
 The accounts of Mr. Henshaw still remaining unsettled at the Treasury Depart- 
 ment, he again wrote to the Comptroller, under date of December 2d, 1839, restating 
 the origin and effect of the item of deposit in his account, as follows : 
 
 Extract of a letter from D. Henshaw, to the Comptroller, Dec. 2, 1839. 
 " In relation to the first item, $65,941 77, which has been the subject of former 
 frequent communications with the Treasury Department, I have to remark that I 
 am entitled to a credit upon the principle admitted in the First Auditor's letter to 
 the Secretary of the Treasury, of November 15, 1838. The Auditor, however, 
 misapprehends the facts, in supposing that I made frequent deposits of bank paper 
 or bank credits, in the Commonwealth Bank, after I was notified that it ceased to 
 be a deposit bank. The only sums thus deposited to my credit, were $30,500, 
 placed there to my credit by the Department on its own motion, and 812,000, a
 
 17 
 
 " check on the Bank itself, to aid in paying the fishing bounties, and which was 
 " appropriated for that purpose." [For the whole of this letter, which fully explains 
 every item of the account, see Appendix No. 9.] 
 
 It thus appears that no liability whatever could attach to Mr. Henshaw for deposits 
 not made by him after the Bank suspended, but placed there to his credit as Collec- 
 tor, by the Treasury Department ; and in this connexion will be seen the gross injus- 
 tice and falsity of charging upon Mr. Henshaw, as a fraud upon the fishermen, the 
 payment of bounties from the very funds expressly furnished him for that purpose. 
 
 We have now shown that David Henshaw was not in any relation, manner or 
 form liable for the deposit of sixty-five thousand dollars, 
 
 First, Because it was no part of any deposit made by him after the Bank ceased 
 to be a deposit bank. 
 
 Second, Because it was passed to his credit as Collector, by the acts and orders 
 of the Treasury Department, subsequent to the suspension, and was a transfer to him 
 of Treasury credits. 
 
 Third, Because, by the express instructions of the Secretary of the Treasury, 
 (Jan. 24, 1838,) and of the Solicitor of the Treasury, (Feb. 9, 1838,) the District 
 Attorney commenced suits against the Commonwealth Bank and its deposit sureties, 
 to recover this deposit of sixty-five thousand dollars, as " covered by the bond executed 
 on behalf of the Bank." 
 
 Either one of these reasons is an ample, legal, equitable and moral defence to any 
 claim for that sum upon David Henshaw or his sureties, as Collector. But there is a 
 fourth still stronger ; and that is that the United States, by direction of the Secretary 
 and Solicitor of the Treasury, and through its officer, the District Attorney, acting 
 under that advice, actually took and recovered judgment against the Bank for this 
 sum of sixty-five thousand dollars, and had the judgment satisfied. 
 
 This appears by documents. The First Auditor in his letter to the Secretary of the 
 Treasury, of Nov. 15, 1838, (House document, No. ISO, February, 1839,) says, " I 
 now understand that a judgment has been taken in favor of the United States 
 against the Bank, including the above sum (of $65,941 77.) I presume, that if it has 
 been taken under the direction of the Department, unless taken as a collateral secu- 
 rity with the consent of Mr. Henshaw, it will release him ; and that, as a matter of 
 course, he ought to be credited for the amount on his account." 
 
 The 27th of November, 1838, the Solicitor of the Treasury informed the First 
 Auditor " that judgment was recovered against the Bank, on the 19th of May, 1838, 
 for $325,517, which is understood to include the whole sum due from it," [embrac- 
 ing the sum in question, of sixty-five thousand dollars.] 
 
 The Solicitor also sent to the Auditor Mr. Woodbury's instructions of January 
 24, 1838, to prosecute the sureties of the Bank on the bond of Feb. 14, 1837, for all 
 the balances of public money placed there by collecting and disbursing officers ; also 
 a letter from Mr. Mills, the District Attorney, of January 29, 1838, to the Solicitor, 
 giving the items of the Bank account, including the sixty-five thousand dollars 
 deposit, to the credit of the late Collector, and informing him that it will be neces- 
 sary to bring a new action, if it is intended to recover upon the bond the whole 
 amount deposited or "placed there by collecting and disbursing officers." 
 
 And in reply to this, the letter of the Solicitor to Mr. Mills, of February 9, 1838, 
 enclosing a certified copy of the bond of February 14, 1837, and instructing him to 
 sue upon it for all moneys or funds belonging to the United States, or deposited by 
 any of its officers, which was accordingly done, and a new action brought to cover 
 the whole amount. 
 
 On the 28lh of September, 1838, the Comptroller was furnished with the certificate 
 of the District Attorney, that under the instructions of the Department, " the sum of 
 $65,941 77, which stood to the credit of the Collector of the port of Boston, in the 
 Commonwealth Bank, January 12th, 1838, was included in the judgment for 
 $325,517, recovered by the United States against the Commonwealth Bank." 
 
 And on the 8th of February, 1839, the Comptroller, " in reply to inquiries proposed 
 in a resolution of the House of Representatives, 28th of January, 1839, in relation to 
 the accounts of David Henshaw," cites the opinion of the Auditor, that the $65,941, 
 3
 
 " ought, as a matter of course, upon the above facts, to Ic credited to Mr. Henshaw, 
 " in the settlement of his accounts." 
 
 So that every accounting and advising officer of the Treasury Department con- 
 curred in the correctness of withdrawing the sixty-five thousand dollars from the debit 
 of Mr. Henshaw's accounts. But as the nominal balance against the late Collector 
 at the Auditor's office, stood at $80,272, embracing items of disbursement, and 
 especially the item of $9,120 which had been paid out to the weighers and guagers, 
 in 1836-37, upon the ground that the limitation act of 1836, concerning fees, was 
 not retrospective, as to fees already earned ; there was a delay in the adjustment of 
 this account, until 1841. 
 
 The 2d of December, 1839, as has been seen by his letter of that date, [Appendix 
 9,] Mr. Henshaw wrote to the Comptroller, urging an adjustment of his accounts, 
 and stating the grounds of his claims to all the items withheld from his credit. In 
 regard to the main item of sixty-five thousand dollars, he then said, what is apparent 
 from the above documents, that " the United States never had any claim on him for 
 the solvency of the Bank, or the payment of this money held by the Bank, either in 
 law or equity;" and he cited the decisions of the United States' Courts, which 
 covered all his payments to the Weighers and Gaugers. 
 
 Finally, Mr. Henshaw Avas so desirous of closing his accounts, that, to avoid longer 
 delay, he preferred that a suit should be commenced by the government against 
 him, which was done, for the adjustment of the disputed balances, by a judicial 
 decision. 
 
 This action was tried in the District Court of the United States, before Judge 
 Davis, in December, 1840. The United States claimed in the writ the sum of 
 seventy-five thousand dollars, as due from Mr. Henshaw, and under the directions of 
 the Court, the jury returned a verdict entire for Mr. Henshaw, as follows : 
 
 " United States, vs. David Henshaw. The jury find that the defendant did not 
 <; promise in manner and form, as set forth in the plaintiff's writ. 
 
 " JOHN HARRIS, Foreman." 
 
 Upon a hearing before Judge Davis, on matters of law, the Court sustained the 
 verdict as to the sixty-five thousand dollars deposit, and every other item of charge, 
 except the sum of $836 25 of the amount paid to the Weighers and Gaugers. Pre- 
 ferring to pay this small amount, rather than incur the delay and expense of an appeal 
 to the Circuit Court, Mr. Henshaw submitted to judgment for that sum, by default, and 
 immediately paid it over to the United States. It was refunded to him by the offi- 
 cers who had received it, and they applied to the Department, by which it was 
 referred to the auditing and accounting officers, and by them was subsequently 
 audited and allowed ; thus sustaining, by these formal decisions, the position taken 
 by Mr. Henshaw when he retired from office, in January, 1838. 
 
 The evidence of this disposition of the whole matter, will be seen by a copy of 
 the record of the Court. [See Appendix, No. 10.] 
 
 The account was thereupon closed at the Department, and Mr. Henshaw was 
 furnished with the following receipt in full of all demands : 
 
 "Comptroller's Office, March 30, 1841. 
 
 " SIR, Your accounts of the Customs have been finally adjusted and closed on 
 " the books of the Treasury. 
 
 " Very respectfully, your obt. servt. 
 
 " J. N. BAEKER, Comptroller. 
 " DAVID HENSHAW, Esq. 
 " Late Collector, Boston, Mass." 
 
 We have thus traced this important item through all its phases, and brought Mr. 
 Henshaw out of his accounts with the United States, and his deposits in the Com- 
 monwealth Bank, with the endorsement of the U. S. Court and the U. S. Govern- 
 ment, that he has accounted for every dollar of his personal and official liability.
 
 19 
 
 The delay attending this settlement, (which is in no way attributable to Mr. Hen- 
 shaw ;) its examination by every legal and accounting department of the government ; 
 its reference to congress, under a resolution of inquiry, of January 28th, 1839 ; its 
 judicial investigation by the court and jury, and their verdict and judgment; its final 
 adjustment in 1841, when the political friends of David Henshaw had gone out of 
 power, and his political opponents had come in ; and the fact, that, during the whole 
 of this period, the secret accusers and personal enemies of Messrs. Mills and Hen- 
 shaw, (through whom these exploded charges have recently been revived, to operate 
 upon the Senate,) were besieging the President, the heads of Department and Con- 
 gress, in every possible form, in order to fix upon somebody some charge of fraud, or 
 contrivance, or mismanagement in these proceedings, (in all of which they failed,) 
 completely demonstrate that no public officer or private individual could pass through 
 such an ordeal, but by the force of integrity, accuracy, and uprightness in his busi- 
 ness transactions. 
 
 In all the legal proceedings connected with this settlement, it will be perceived that 
 Mr. Mills, the United States' District Attorney, conducted with professional prompt- 
 ness and fidelity in the discharge of his duties, under the direct instructions and sanc- 
 tion of his official advisers. 
 
 The third and only remaining branch of the inquiry, is the relation of David Hen- 
 shaw to the Warren Association, and through that to the Bank and the United 
 States, in what is flippantly called the " SOUTH BOSTON LAND FRAUD." This charge, 
 which has been reiterated with great boldness but little responsibility, is, in substance., 
 that David Henshaw was a member of a private association, unincorporated, which 
 had purchased lands at South Boston, and borrowed $180,000 of the Commonwealth 
 Bank ; and that it was fraudulently contrived, by Mr- Henshaw, that the lands of 
 the Warren Association should be appraised and set off to the United States, in pay- 
 ment of that debt, so as to defraud the United States, by a corrupt appraisement, out 
 of some hundred and forty thousand dollars. 
 
 The mere statement of this charge shows that it necessarily involves the corrupt 
 conduct or acquiescence not only of Mr. Henshaw, but of all who participated in and 
 were knowing to that transaction ; together with wilful perjury on the part of the 
 sworn appraisers. 
 
 It would be sufficient with men, who, possessing personal integrity themselves, 
 are capable of appreciating it in others, and who know the character and standing of 
 those who must have been the accomplices or tools of David Henshaw in this pre- 
 tended fraud, to give their names as a full answer to this allegation ; but as the pur- 
 pose of this inquiry is to meet the calumnies that have been so widely and pertina- 
 ciously circulated, in every tangible form in which they have been presented, this 
 charge will also be examined in detail. 
 
 By the preceding proofs, Mr. Henshaw stands disconnected from all liability to 
 the Commonwealth Bank or to the United States. He was a member and one of 
 the Directors of the Warren Association. The Directors were Messrs. Mark Healey, 
 David Henshaw, Thomas Curtis, Hall J. How, Henry Upham, Ebenezer Jones, and 
 J. L. Sibley. The Trustees, John Pickering, H- J. How, E. Jones, J. L. Sibley, 
 and Charles Hood, who was also Treasurer, and James W. Fenno, Clerk. Th.'-re 
 were articles of agreement of the Association, one of which was a stipulation and pro- 
 hibition that no officer of the Association should borrow money or incur debts, with- 
 out a resolution to that effect. The number of shares was five hundred, at $250 per 
 share, of which Mr. Henshaw held twenty, say $5,000, about four per cent, of the 
 capital ; so that his share of the debt due from the Association to the Bank, would 
 have been about $6,400, the Association having paid all its debts. 
 
 The substance of the charge, therefore, is, that for this inconsiderable interest, 
 David Henshaw not only committed a gross fraud himself upon the United States, 
 but induced, several persons, esteemed of the highest integrity among the lawyers, 
 merchants, judicial officers and citizens of Boston, to become his instruments in this 
 fraud, and even to perjure themselves to accomplish his purpose! 
 
 Now the only pecuniary interest Mr, Henshaw could have had, in his relation to 
 the Warren Association, was to relieve himself and his friends from its debt to the
 
 20 
 
 Bank. For the purpose of implicating him in the failure of the Commonwealth 
 Bank, it is assumed by his libellers that he had unlimited control over it. The 
 Committee of the Legislature of Massachusetts, that examined the Commonwealth 
 Bank, in their report say, that " The Warren Association have had the same access 
 to the moneys of the Bank as though the Bank had been their Treasurer instead of 
 Mr. Hood." Whether this were so or not, the Treasurer of the Association was the 
 Cashier of the Bank, and its President was a Director in the Bank. 
 
 Assuming then, with Mr. Henshaw's accusers, that his purpose was to make the 
 best terms for the debt of the Association, and which he had a right to do, would not 
 ordinary sagacity have suggested an arrangement through this channel, rather than 
 the course taken of a surrender of the notes of the Association to the United States' 
 officer, to abide the judgment in favor of the United States, should it be obtained 
 against the sureties of the Bank, and the subsequent transfer of the lands of the Asso- 
 ciation to the Bank, that the United States might levy upon them? 
 
 There was ample time (between the failure of the Bank on the llth of January, 
 and the first suit brought by the United States, which was the 22d of January) to 
 have negotiated this matter. The evidences of the debt of the Association to the 
 Bank were transferable by endorsement, and were easily adjusted by compromise, or 
 settlement, if there had been any design of collusion or evasion. Or if the Warren 
 Association had taken no steps and left their paper with the Bank, the result could 
 only have been that if the Bank or its receivers should succeed in recovering judg- 
 ment against the Association, it must end in a levy upon the lands of the Company, 
 which by the laws of Massachusetts could not have been sold on execution ; and this 
 was precisely the thing that was done, in the settlement with the United States, 
 and out of which all the complaint has grown. 
 
 In the first case supposed, viz., a recovery by the Bank against the Association, 
 the law of the State would have required the lands to have been set ofTupon execu- 
 tion ; and in the other case the same thing was done by consent of parties, and which 
 could not have been done without such consent. 
 
 Finding so little of motive for fraud in this transaction, let the facts be examined 
 that bear upon it. 
 
 It will be seen that there never was any relation of debtor and creditor between the 
 Warren Association and the United States, nor did the United States ever hold a note 
 of the Association it could put in suit. 
 
 The Warren Association Avas a private company of individuals, owning a large real 
 estate in South Boston, held by certain gentlemen in trust for the Association. The 
 Bank, at the time of its failure, held the paper of the Treasurer of the Association, 
 Mr. Hood, to the amount of $180,000. Twenty thousand dollars of this sum was 
 paid after the failure, which reduced the debt to $160,000. 
 
 The origin of this debt, though it was never attempted to be evaded by the Asso- 
 ciation or any of its members, made it of no binding legal force upon the Association 
 or its individual members, because it was contracted without a vote of the Associa- 
 tion, in violation of its terms of agreement, and with the full knowledge on the part 
 of the officers of the Bank, of the want of authority. 
 
 So far from availing themselves of this defect in authority, the Directors of the 
 Association, and Mr. Henshaw in particular, were at all times ready to assume it as 
 a debt between them and the Bank, but not in any relation to the United States, for 
 none such existed. 
 
 In his reply to the report of the Committee of the Massachusetts Legislature, in 
 February, 1838, touching their investigation into the affairs of the Warren Associa- 
 tion, Mr. Henshaw said, " Before going further, I will here remark that, notwith- 
 ' standing the obloquy attempted to be thrown upon the Association, by the committee 
 ' and others, I challenge them all to point to a single dishonest, dishonorable or disre- 
 ' putable act, justly chargeable upon it. It is true that a debt had accumulated in its 
 ' name at the Commonwealth Bank, but not by its authority nor at its request, for $180,- 
 000, not for 8263,000, as the committee have falsely stated. Though this debt was 
 ' mostly, if not entirely, created without the authority of the Association, and it does 
 " not consider itself legally bound to pay it, yet, as it is believed that those who created it
 
 21 
 
 " acted from perfectly honest intentions, no attempt, to my knowledge, has ever been 
 " made by the Association to evade it" 
 
 The extent of the debt which had been contracted without authority of the Asso- 
 ciation, was made known at a meeting of the Directors of the Association, in Novem- 
 ber, 1837, and though much surprise was felt at the amount, they finally authorized 
 the issue of three notes of $25,000 each, by the Treasurer, on time, to each of which 
 was appended the votes of the Directors. One other note of $25,000, and two others 
 of $30,000 each, were subsequently made, in all $160,000, on time from seven to 
 sixteen months, and it was then agreed that these notes should be substituted for the 
 memorandum checks and short paper, which the Bank held upon the sole voucher 
 of the Treasurer of the Association. Before this was carried into effect, however, the 
 Bank failed, and the question then came up upon the exchange of this paper accord- 
 ing to the previous understanding. 
 
 It was in relation to the exchange of these notes for the old paper, that Mr. Mills 
 testified, before the legislative committee, to an interview between himself and Mr. 
 Henshaw, which testimony has been attempted to be distorted into an imputation 
 upon him. Mr. Mills was applied to, to sanction that negotiation, solely in his 
 capacity of Director of the Commonwealth Bank, and with no reference whatever to 
 any debt due the United States ; for at that time no suit had been commenced for the 
 United States against the Bank. The transaction was exclusively between the 
 Warren Association and its creditor the Bank. The exchange of the new notes on 
 time, for the Treasurer's paper was authorized, in pursuance of the previous agree- 
 ment of November, and was effected on the 15th of January, the day of the first 
 interview testified to by Mr. Mills. 
 
 At this time, neither Mr. Henshaw nor Mr. Mills doubted the validity of the new 
 notes ; but upon subsequent examination, the authority of the Directors, under the 
 terms of the copartnership, was called in question, as affecting the binding force of 
 those notes upon the stockholders, who contested their liability. Mr. Mills after- 
 wards had a conversation with Mr. John Pickering, one of the Trustees, and con- 
 sulted eminent counsel, Mr. B. Rand, and came to the conclusion that the authority 
 upon which the new notes were given was doubtful, and might be contested by the 
 individual stockholders, in the event of a suit by the Bank against them individually. 
 It was in the course of the discussion as to the individual liability of the stock- 
 holders, that the suggestion was made by Mr. Henshaw to Mr. Mills, that even 
 admitting there was an individual liability, the result of a suit by the Bank to col- 
 lect the debt, could only be to take the lands of the Association instead of the per- 
 sonal property of the stockholders, which might be put in a situation to have no 
 claim upon it. Subsequent investigations prove that Mr. Henshaw was correct in 
 the view he took of the doubtful liability of the stockholders, and this whole matter 
 was afterwards fully explained by Mr. Mills, in his communication to the Solicitor 
 of the Treasury, of September 15, 1838, which will hereafter be referred to for 
 another purpose. [See Appendix G.J 
 
 Mr. Mills there says : " At the time the legislative committee made their investi- 
 
 " gation, I was of the opinion that the associates were personally responsible for the 
 
 " notes, (that is, to the Bank.) But facts were soon after disclosed, or came to my 
 
 " knowledge, that very much diminished my confidence in that opinion. As a gene- 
 
 " ral principle, all the members of a joint stock association are personally responsible 
 
 " for the debts of the company. But in this case, I was well satisfied, on examinrt- 
 
 " tion, that the officers of the Association were prohibited from borrowing money or 
 
 incurring debts beyond the sum of thirty thousand dollars. Such restriction it is 
 
 not supposed would avail to defeat the claim of a creditor who had no notice of it. 
 
 But all these notes were taken by the Commonwealth Bank, with full notice that 
 
 the Treasurer of the Association had no authority to contract the debt. I do not 
 
 pretend that a recovery against the Association was entirely hopeless, but I do say, 
 
 that it was so very doubtful that no prudent man, standing in the same relation, 
 
 would have sought his remedy by a law-suit, if he could receive his debt in lands 
 
 at an appraisal." 
 
 The same legal opinion was subsequently given by Hon, Rufus Choate, who, at
 
 22 
 
 the request of the Solicitor of the Treasury, was designated by Mr. Bancroft, the 
 successor of Mr. Henshaw in the Collector's office, as counsel to be consulted in 
 behalf of the United States. In his communication to the Solicitor, of Nov. 22d, 
 1838, Mr. Choate says on this point : 
 
 " I consider the question, whether the Commonwealth Bank could enforce the 
 
 ' notes signed by the Treasurer of the Warren Association, as attended with great 
 
 ' difficulty. The highest professional opinions were divided upon it. The agents 
 
 ' of the Association, who executed and delivered the notes to the Bank, exceeded 
 
 their authority in that act, and the agents of the Bank who received the notes and 
 
 ' made the advances on them, were perfectly conusant of this excess of authority 
 
 of the agents of the Association. They were so because they were themselves 
 
 officers in the Association and in the Bank. The stockholders in the Association 
 
 ' had determined to contest their liability, and would have been charged, if at all, at 
 
 ' the end of a very long and expensive litigation. The sureties of the Common- 
 
 ' wealth Bank, who received these notes from the Bank, stood upon no higher equity 
 
 ' than the party from whom they received them, and would have had the same diffi- 
 
 ' culty, precisely, in enforcing them against the Association." [See Appendix H.] 
 
 But in addition to this legal uncertainty, the notes of the Warren Association, 
 Whether binding or not on the stockholders, were like any other negotiable paper, 
 held by the Bank from its debtors, on time, transferable at any moment to any of 
 the creditors of the Bank ; and there was no process by which the United States 
 could reach them. Some of them had sixteen months to run, and none less than 
 seven, and if the United States had waited for its share of the proceeds of these 
 notes, when reduced to assets of the Bank, either by the Bank itself or its receivers, it 
 must not only have run the risk, in the mean time, of a transfer to others, a settle- 
 ment, or even the failure of the Bank to hold the Association after a contested suit 
 on the grounds of their defence ; but had the Bank or its receivers succeeded in 
 getting a judgment against the Association, the avails would have been realized, after 
 all, in an appraisement of these same South Boston lands, set off on execution ; 
 which would have been doing, at great risk and cost, just what was done, in the final 
 adjustment, without either. 
 
 And in this connexion it may be proper to correct the false view of many, as to 
 the priority claim of the United States. The notion seems to be held by some who 
 complain in this matter, that the moment the Bank failed, the United States could 
 walk in and apply all the assets, negotiable or otherwise, to the discharge of its debts. 
 This is not so. The United States stands like any other creditor, until it obtains 
 judgment against its debtor, and even then, its priority claim to the debtor's effects 
 applies only where by law, or by the act of the debtor himself, his property is seques- 
 tered for the use of his creditors, and not where there is mere insolvency or an indi- 
 vidual attachment of the debtor's goods. And if, before the right of preference 
 accrues to the United States, the debtor, bona fide, conveys his estate, or mortgages 
 it to secure a debt, the debtor is divested of his property, and it is not liable to the 
 United States. 
 
 The United States, therefore, stood in the same relation to the Bank, as to its 
 negotiable paper, as did any other creditor, and no better. It had claims against it 
 for 8338,797. Of this, $146,476 were deposits to the credit of its officers, for which 
 it had no claim on them, and the remainder, S192,321, rested upon the Bank and its 
 sureties, as did in fact the whole sum. The only security the United States held 
 Was the deposit contract entered into by the Bank July 15, 1836, " to discharge all 
 the duties and services prescribed by the act of the 23d of June, 1836," and a sub- 
 sequent bond, executed by the President and Cashier of the Bank, Feb. 14th, 1837 ; 
 upon which bond Hall J. How, Otis Rich, John Henshaw. Elisha Parks, F. S. 
 Carruth, William Freeman, Oliver Fletcher, Adams Bailey, and, we believe, S. S. 
 Lewis, were sureties, for the performance of the deposit contract of July 15. 1836. 
 The sureties on this bond contested their liability on the ground that the bond was 
 not duly executed ; and they further contended, that if the bond were valid they w r ere 
 liable for no more than the balance of deposits remaining when the Bank suspended 
 and was notified of its removal as a depository, May 18lh, 1837. That such was
 
 23 
 
 the legal force of these instruments and no more, will be seen by the opinions of 
 eminent counsel, to whom the matter was referred by the Solicitor of the Treasury, 
 who fully concurred in that opinion, and which no lawyer has ventured his reputa- 
 tion to call in question. [See Appendix J.] 
 
 The balance for which the sureties were holden, on the 18th of May, 1837, upon 
 this construction of the contract, was stated at $106,640, which amount was placed 
 there previous to the removal of the Bank as a depository, but from this amount was 
 to be deducted $49,389 06 for over draft on Pension Agent's account, leaving only 
 $57,251 for which the sureties could in any event have been held liable. 
 
 And, in point of fact and law, the United States had no security, beyond the assets 
 of the Bank, but for this sum. The negotiable paper held by the Bank of its debtors, 
 could not be attached by the United States nor the debtors trusteed, because " no 
 person can be adjudged a trustee by reason of having drawn, accepted, made or 
 endorsed any negotiable bill, note or other security." 
 
 Until receivers were appointed, the Bank could dispose of its negotiable paper as 
 it might see fit. That this paper did not go into the hands of other creditors, instead 
 of being made available to the United States, was mainly owing to the exertions of 
 David Henshaw, S. S. Lewis, and one or two of the Directors, as will be seen by 
 reference to the letter of Mr. Lewis, concurred in by Robert G. Shaw, Esq. [Ap- 
 pendix No. 11.] 
 
 The Commonwealth Bank was indebted to the associated Boston banks $205,000, 
 and in fact negotiations had been started to deliver to them the securities, which, 
 instead of that disposition, were made available to the United States, mainly through 
 Messrs. Henshaw and Lewis. 
 
 It is not a little remarkable that the whole of the censure which has been lavished 
 upon David Henshaw, is based chiefly upon the very proceedings which enabled the 
 United States to realize these securities, and obtain satisfaction of its whole debt, 
 instead of being left, as it otherwise would, to the claim of $57,000 upon the sure- 
 ties, and the doubtful proceeds of the effects of the Bank. 
 
 An attempt was made by private creditors of the Bank to divert these securities 
 from the United States. The failure of that suit, and the disposition made of the 
 funds, will be seen by the answer of Mr. Lewis, who was sued as Trustee. [Ap- 
 pendix No. 12.] 
 
 The legal proceedings instituted on the part of the United States, by direction of 
 the Treasury Department, to recover the claim against the Bank of three hundred 
 and thirty-eight thousand dollars, were as follows: 
 
 Under instructions from the Treasury Department, on the 22d of January, 1838, a 
 suit was commenced by the District Attorney against the Bank, and the sureties on 
 the bond of February 14th, 1837, to recover a balance then stated in a Treasury 
 Transcript sent by the Solicitor to the District Attorney, as due from the Bank to the 
 United States of $51,749 90. 
 
 The District Attorney, entertaining a legal doubt, which subsequently proved well- 
 founded, whether an action would lie against the Bank, upon the above bond, com- 
 menced, at the same time, an action against the Bank for money had and received ; a 
 measure of precaution which evinced the professional fidelity of that officer. Upon 
 these two writs of January 22d, the officers of the Bank delivered to the District 
 Attorney, as security for the claims, the paper of the Bank to the amount of $42,420, 
 viz., notes of J. Henshaw and Henshaw, Ward & Co., endorsed by D. Henshaw, for 
 $27,420, not due, and a note of How and Jones for $15,000, also on time. The 
 Treasury Transcript stated the balance at $51,749 90, but it was in fact but 
 $39,636 93. 
 
 These notes were subsequently paid, dollar for dollar, and the United States received 
 the proceeds, in the final settlement. The receipt given for them on the 22d of 
 January, shows that they were hold solely for security of the balance named in the 
 Treasury Transcript upon the writ of that date. [See Appendix D, Note a.] In this 
 respect there is an error in the report of the committee of the Legislature, (page 34,) 
 which mentions but one suit against the Bank, when in fact there were three. The 
 error, however, is not material. Suits were also commenced against the sureties of
 
 24 
 
 John K. Simpson, on his pension bonds of January 30, 1834, and February 12, 
 1836. 
 
 On the 30th of January, upon further instructions from the Treasury Department, 
 separate suits were commenced against each of the sureties on the deposit bond, with 
 directions to the Marshal to attach sufficient ; and on the 13th of February, an action 
 was brought against the Bank on its deposit contract, upon which writ all the real 
 estate belonging to the Bank, was attached. A bill in equity was also filed against 
 the debtors of the Bank. It is proper to state that each of these suits was promptly 
 brought by the District Attorney, immediately upon his being furnished with the 
 contracts upon which they were declared. 
 
 We now come to the first act of David Henshaw which connected the notes of the 
 Warren Association indirectly with the claims of the United States upon the Bank. 
 It will be recollected that he was not a party to these or any suit ever commenced by 
 the United States to recover its claims upon the Commonwealth Bank. Ample 
 security had been given to the District Attorney for the balance upon the Treasury 
 Transcript of $39,636, which in fact reduced the claim against the deposit sureties to 
 $17,615. After the service of the writs against the sureties, the Directors of -the Bank, 
 by vote, placed notes, to the nominal amount of $280,000, in the hands of the sureties, 
 " to protect the said sureties against all legal liabilities to the United States on 
 account of said Bank." These securities were placed by the sureties in the hands 
 of David Henshaw and Samuel S. Lewis as trustees, for the above purpose, and 
 were by them delivered to the Marshal upon the writs against the several sureties on 
 the deposit bond, for the sole and express purpose set forth in the Marshal's receipt 
 therefor, of February 2, 1838, to be held by him " as security to satisfy any judg- 
 ment which may be recovered in favor of the United States, (on the said writs of 
 January 30, against the several sureties upon the deposit bond,) the balance, after 
 satisfying such judgments, if obtained, to be returned to said Lewis and Henshaw." 
 [For the Marshal's receipt and schedule of notes, see Appendix D, Note d.] 
 
 These notes were all on time, and could not have been attached by the Marshal ; 
 they never came into the hands of the District Attorney > and the United States had 
 no claim upon them, except as collateral to be applied as above, in case the United 
 States recovered judgment in the contested suits against the sureties ; and they could 
 not be applied to any judgment or demand against the Bank. Among these securi- 
 ties were the six notes on time, of the Warren Association to the Bank, amounting 
 to $160,000, and this is the only claim the United States ever had upon them ; and 
 even these notes, thus held as collateral for a specific purpose, were contested by the 
 Warren Association upon grounds already stated. 
 
 Had the matter rested here, no pretext could be raised against the proceedings, as 
 in all respects honorable and extremely favorable to the United States. But if the 
 parties had so been left to pursue their legal remedies, the most favorable result, 
 which, in any possible event, the United States could realize, would have been a 
 recovery of judgment against the sureties for the deposit balance in Bank, May 18, 
 1837, of $57,251, less $38,636, already secured under the suit of January 22d, with 
 the contingency of the recovery in a suit in the name of the Bank, against the 
 Warren Association, upon these contested notes. Instead of this, by the arrange- 
 ments subsequently made, the United States had set off to it, on execution, the South 
 Boston lands ; and no man, however extravagant he may be in depreciating those 
 lands, will venture to place them at a less value than the whole amount it is obvious 
 the United States would have recovered, had it pursued all its legal remedies to their 
 final results. 
 
 It was at this point, and under these circumstances, that the adjustment was made, 
 not by David Henshaw, but by the officers of the United States, under advisement 
 with the department, and in due course of law, which led to the transfer to the United 
 States of the South Boston lands. As has been well said, by one of the ablest law 
 officers of the government at Washington, this settlement is not to be regarded in the 
 light of a compromise, but as the result of legal proceedings, the most favorable to the 
 United States that could have been obtained under all the circumstances. 
 
 The proceedings of the law officers of the government, in relation to the notes of
 
 25 
 
 the Warren Association, are minutely set forth in the full report of the District 
 Attorney to the Solicitor of the Treasury ; for which, see Appendix D. With the 
 concurrence of the Solicitor, the agreement referred to in that report, (Note b,) was 
 made, May 11, 1838, between the Bank and the sureties, and the District Attorney. 
 
 By that agreement judgment was to be rendered for the United States against the 
 Bank, for the whole balance claimed and interest, $335,517 55. The Marshal was 
 to levy the execution upon the lands of the Warren Association, which were to be 
 conveyed by them to the Bank, and the same were to be set off, upon the levy, by 
 appraisement, in the legal mode of taking the land of individuals or unincorporated 
 companies. The amount of such appraisal was to be appropriated, (in conformity to 
 the conditions upon which the Marshal held the notes of the Warren Association,) to 
 the relief of the sureties of the Bank on the deposit bond of February 14, 1837, to the 
 extent of such appraisement ; and the notes, held by the Marshal under his receipt of 
 February 2, 1838, upon the several writs against the sureties, were to be surrendered 
 to the Trustees of the Warren Association, to the amount of said appraisement, and 
 the remainder retained, after the completion of the levy. 
 
 At the next term of the Court, judgment was entered as above, and appraisers were 
 appointed in conformity to the laws of Massachusetts, the Warren Association having 
 simultaneously conveyed the lands to the Bank. 
 
 The selection of the appraisers was such as no man who is conscious of deserving 
 self-respect, would call in question, in this community. They were, on the part of 
 the United States, Nathan Gurney, then a State Senator and Alderman of the city, 
 James C. Merrill, one of the Justices of the Police Court of Boston; and on the part 
 of the Bank, Amos Binney, a representative in the State Legislature. There are few 
 citizens in Boston, who would not have been satisfied with the appointment of these 
 gentlemen as appraisers on their own estates. And here is the point to which all the 
 charges against David Henshaw, or the law officers of the government must come, 
 viz., that by collusion, corruption and perjury, these three unimpeachable citizens 
 purposely appraised the land at an exorbitant value, with the intent to defraud the 
 United States ! for if the land had been appraised under its value, there would be no 
 pretext of complaint, and the United States would have gained, at the expense of the 
 Association. 
 
 To cover the baldness of this charge, it has been pretended, by the accusers of Mr. 
 Henshaw, that the appraisers made two valuations, one to ascertain how much land 
 the Association was to deed to the Bank, and the second (which was under their 
 oaths) merely pro forma, and that they fixed upon the price understood to have been 
 agreed on by the parties. 
 
 This is only another form of charging them with collusion and perjury, for they 
 knew the law and their duty under it. This charge was met and prostrated in its 
 origin, as will be seen from a correspondence between Mr. Mills and the appraisers, 
 of September 8 and 14, 1838, [for which, see Appendix B. G.] 
 
 Upon private representations made to the Solicitor of the Treasury, inquiries were 
 made of the appraisers, to which they answered, that they never made but one 
 valuation, and that upon the land, under their oaths ; that they did not examine the 
 lands for the purpose of making a valuation before they were sworn ; that they never 
 heard of any appraisement of the lands being made when they were conveyed to the 
 Bank, and knew nothing of the consideration in the deed of the Warren Association 
 to the Bank ; and that they knew of no intention to appoint them appraisers, until 
 they were notified of their appointment. And they further say that they did not 
 know of their being selected as appraisers until about an hour before they were 
 sworn ; nor until sworn, did not know the parties or the property ; that they 
 proceeded to view the premises immediately after taking the oath, and when 
 making the appraisement did not know the amount due from the Warren Association 
 to the Bank. 
 
 There is consequently no pretence that the appraisers were misled by any sup- 
 posed understanding of the parties as to the value of the lands ; and if they made a 
 false appraisal it was designedly and corruptly, and in no other way. And to show 
 the enormity of the charge which is made upon the integrity of these citizens, in
 
 26 
 
 order to assail David Henshaw through them, we will cite the oath they took, &S 
 endorsed on the execution. 
 
 " United States of America District of Massachusetts, 
 
 " Suffolk, ss. Boston, May 17, 1833. Then and there personally appeared before 
 v me, James C. Merrill, Amos Binney, and Nathan Gurney, and made oath that they 
 " \vo\i\A. faithfully and impartially appraise the real estate taken on the within execu- 
 " tion in favor of the United States of America against the President, Directors and 
 " Company, of the Commonwealth Bank.- 
 
 "JOHN GRAY ROGERS, 
 
 Justice of the Peace." 
 
 And in their return upon the execution, the appraisers say, under their hands : 
 
 " We, the subscribers, having been duly sworn, have this day entered upon and 
 w viewed the following described parcels of land, &c. And we appraise the before 
 " described premises at the sum of $166,437 9'0, in part satisfaction of the said exe-' 
 " cution." 
 
 Much stress has been laid upon the fact, that the conveyance of the land (o the? 
 Bank was simultaneous with the levy, and that the whole return was accomplished 
 On the same day, and also that on the day after the levy, the Bank executed a deed 
 to the United States ! The first objection is wholly immaterial, because the convey- 
 ance and levy were dependant on each other, under the agreement to that effect, and 
 the time was ample for the appraisement arid return ; and the last was a prudent 
 measure of precaution on the part of the District Attorney, to secure the title to the 
 Uriited States against any possible error in the returns, which so often defeat the 1 
 technical title under an execution. 
 
 With this appraisement and payment of the debt of the Warren Association, all 
 pretended connection of David Henshaw with the alleged "land fraud at South 
 Boston," ends. And where can malevolence find a particle of fraud or dishonesty to" 
 soil his reputation with ? A stab, to" reach him, must pass- through a powerful array 
 of men who surround him, in this transaction, and all of whom he must have duped 
 or bribed to accomplish his purpose ! 
 
 And to what end? We have seen it gravely calculated a'nd figured out m a 
 newspaper, which has been the most active in the attacks upon Mr. Hetishaw, and 
 which boasted of having defeated his confirmation m the Senate, by exposing this 
 " stupendous land fraud," tha't David Henshaw's part of the plunder, by paying off* 
 the debt of the Warren Association in this way, would actually amount to $6,200 
 and out of this sum he must have bought up Messrs. Choate and Mills, the counsel 
 for the United States, and bribed the appraisers to forswear themselves ! 
 
 It has been repeatedly asked, why Mr. HenshaXv has not long ago demanded art 
 investigation into these charges. The answer is that the investigation has been 
 repeatedly made by the government, and submitted to Congress, and with a uniform 
 result honorable td hirri, and to the District Attorney, and to the parties concerned* 
 To these several investigations, has recently been added, Mr. Henshaw's call upon 
 the Senate of Feb. 14, 1844, for an exhibit of the charges against hint. 
 
 It is only necessary to bring together the repeated examinations that have been 
 held officially in this matter, but which, Avith the documents, have heretofore been 
 much scattered and disconnected, to shtfw how completely every allegation touching 
 David Henshaw or Mr. Mills, or any party concerned in that adjustment, has been 
 met and answered to the satisfaction of all the law officers of the government, and 
 tff more than two committees of Congress. 
 
 The setting off of the South Boston lands, was in May, 1838. The 12th of July 
 following, Mr. Woodbury, the Secretary of the Treasury, was informed, at the sug- 
 gestion of Mr. William Wright, of Boston, that the government had suffered, by the 
 alleged or suspected misconduct of its officers, in the matter of the South Boston land*. 
 At the same time an article appeared in the Boston Times, making charges of miscon- 
 duct. The matter was referred to the Solicitor, Mr. Gilpin, who wrote to the District 
 Attorney, [see Appendix, A,] and received the full and explicit answer given by that
 
 97 
 
 officer, [for which, see Appendix B,] and the further minute report of all the pro- 
 ceedings, [for which, see Appendix D.] 
 
 This was satisfactory to the law officers, but not to Mr. Wright, and on the 3d of 
 August, 1838, he addressed a memorial to Mr. Gilpin, describing what he there 
 termed this " stupendous cheat," [Appendix E,] and indirectly censuring the Presi- 
 dent and the Department for not making an example of the alleged delinquents. This 
 is, in fact, the articles of impeachment in the investigation. 
 
 The Solicitor, upon learning, on inquiry, that this document was intended as offi- 
 cial, proceeded to a thorough investigation. The views entertained by the accuser, 
 and the want of confidence intimated in the integrity of the President, Mr. Van Bu- 
 ren, who did not escape censure from that quarter, may be seen by his letter in the 
 Appendix, marked R. 
 
 July 21, 1S3S, the Solicitor applied to the Collector at Boston, Mr. Bancroft, for 
 the recommendation of counsel to be employed by the government in the investiga- 
 tion, and that gentleman immediately recommended the Hon. Rufus Ch.oa.te ; anoT at 
 the same time, Mr. Bancroft, with honor to himself, said to the Solicitor, in reply, 
 " the personal purity and integrity of Mr. Mills need no voucher." 
 
 Mr. William Wright's articles of impeachment, of August 3, 1838, were referred 
 to Mr. Mills by the Solicitor, and met the extinguishing fate which followed them^ 
 in the clear and caustic reply of the District Attorney, of Sept. 15, 1838, [for which; 
 see Appendix G.] 
 
 This was followed by the formal written opinion of Mr. Choate upon the question 
 submitted to him by the Solicitor, as to the correctness of the proceedings in the con- 
 veyance of the South Boston lands to the United States ; [for which opinion of Mr. 
 Choate, see Appendix H.] 
 
 Mr. Choate there says, " The result to which I have arrived is, that the arrange- 
 " ment entered into by Mr. Mills, was, under the embarrassing circumstances of the 
 " case, a judicious arrangement for the government, entered into in the purest offi- 
 " cial good faith, in the exercise of a sound discretion." 
 
 The Solicitor was again fully satisfied with these explanations, and there the mat- 
 ter rested. But the zeal of the accuser was not cooled. The Department not being 
 willing to take the false facts and bad law of the accuser, he applied to Congress, 
 and, on the 14th of January, 1839, the House voted a call upon the Secretary of the 
 Treasury, for information comprising all matters connected with the settlement in 
 question. Mr. Woodbury referred the inquiry to the Solicitor of the Treasury, who, 
 on the 25th of January, 1839, replied with a full explanation of the facts and his 
 views, which cover the whole ground of inquiry. In his letter, the Solicitor answers 
 every essential position taken by Mr. Wright. He says," The grounds of the 
 " allegations are that the United States should have proceeded against the individual 
 *' members of the Warren Association; that the real estate should have been sold, and 
 *' not extended under the execution ; that the appraisement was unfair, if not fraudu- 
 " lent ; and that the agreement made by the District Attorney was an improper compro- 
 "' mise of the rights and interests of the United States. These allegations, (says the 
 ** Solicitor,) are founded on error as to facts." And he adds, " that at no time has it 
 " been in the power of the United States to proceed against the members of the War- 
 " ren Association ; that no proceedings could be instituted by the United States, on 
 " the notes of that Association ; that the real estate was extended instead of being 
 *' sold, because in no other manner could it have been made available to the United 
 " States ; that it was not the property of the Bank, and never would have been con- 
 " veyed to it, so as to be liable to execution, except under the agreement ; and that to 
 " have done otherwise, would have been to grant to the United States better terms 
 " than it could have gained had it succeeded in a very doubtful and complicated legal 
 * l controversy." And in conclusion, Mr. Gilpin says, " Reviewing all the facts of 
 " the case, as they have come to my knowledge after full inquiry, no hesitation existed 
 " or does exist, on my part, in expressing approbation of the course taken, as that which, 
 " under the circumstances, was proper, in a legal point of mew, and decidedly best for 
 " the interests and ultimate security of the United States." 
 
 This ample rofutation of the whole charges about the " land fraud" was commu i
 
 nicated to Congress by Mr. Woodbury, the Secretary of the Treasury, and published 
 by order of the House, [Doc. No. 120, 25th Congress, 3d Session, House of Rep. 
 See Appendix I.] 
 
 Here were three official examinations of this matter, all resulting in the justifica- 
 tion and approval of the parties concerned. But this did not satisfy the accuser, 
 and he again applied to the Solicitor, in July, 1839, not for a further investigation, 
 but for the names of those alluded to, but not mentioned, in Mr. Gilpin's report whom 
 he suspected as the sources of information relied upon in giving the transaction his 
 official sanction. In this letter Mr. Wright complains " that the representations 
 which he had made, concerning the matter, have been discredited and set doivn as 
 false." [Appendix K.] 
 
 This, we believe, led to no action. In 1840, however, a further attempt to revive 
 the charges, was made through the appointment of a select committee of the House 
 of Representatives, upon " a memorial of William Wright." The chairman of this 
 committee was Hon. W. K. Bond, a distinguished whig member of the House from 
 Ohio. 
 
 Mr. Bond applied to the Secretary of the Treasury, for facts and explanations, 
 who referred the inquiries to the then Solicitor of the Treasury, Hon. Matthew 
 Birchard ; and this new legal officer, with no prepossessions in the matter, proceeded 
 to answer the call. His reply of May 25th, 1S40, is full, explicit, and direct to the 
 point, [for which see Appendix L.] 
 
 He there says, " A difference of opinion about the value of a piece of property in 
 " a city of the size of Boston, is but poor matter of evidence to sustain any such im- 
 " putation, or in fact any imputation touching the integrity of men of fair char- 
 " acter ;" and he adds : 
 
 " In conclusion, I feel myself constrained to say, after the most careful examina- 
 " tion of the whole correspondence, that the course of proceedings adopted by the 
 " law officers of the government, (though attended with great and serious responsi- 
 " bility, from which they did not shrink,) was strictly justifiable in a legal point of 
 " view ; and that I cannot find in the evidence anything whatever to sustain the 
 " charge that their motives ivere incorrect, or that there has been, in any step taken ly 
 " them, any official impropriety, much less the slightest ground for charging them 
 " with fraud. 
 
 " (Signed,) M. BIRCHARD, 
 "Solicitor of the Treasury.'" 
 
 The select committee of Congress were satisfied, and took no further action upon 
 the subject. 
 
 Here are, in effect, four official investigations, two of which have been laid before 
 Congress and silently approved. And the whole documents show, that every officer 
 of the government, who has been applied to on this subject, including the then Presi- 
 dent, Mr. Van Buren, the Secretary and the two Solicitors of the Treasury, one of 
 whom, Mr. Gilpin, was afterwards Attorney General ; has approved of the whole 
 transaction in what is called the " South Boston land fraud," and set aside, as wholly 
 unfounded, every allegation of fraud, or misconduct, which it has so pertinaciously 
 been attempted to fasten upon the parties. 
 
 The recent acceptance of the office of Secretary of the Navy, by David Henslmw, 
 has been made the occasion, by a few of his personal and political opponents, to 
 revive and assail him with these four times refuted charges of fraud, in order to 
 prevent his confirmation by the Senate ; and a press, immediately under the influence 
 of the principal accuser, who has so often been foiled in his malevolence in this 
 matter, has been, in conjunction with the reckless Boston Atlas as its echo, the me- 
 dium for voluminous reiterations of these four times discredited falsehoods. It will 
 not do to say that there is anything new in these charges, as applied to Mr. Hen- 
 shaw, instead of Mr. Mills. They are the same ; for not a step in this transaction 
 could have been taken by David Henshaw, without the connivance of the law officers, 
 and the perjury of the appraisers ; and thus the answer to the charges against them,
 
 29 
 
 covers every charge in relation to the South Boston lands, which can be applied to 
 Mr. Henshaw. 
 
 But if, after this exposition, the government or Congress, at the call of any one, 
 are willing to go into a renewed investigation, embracing a full commission to take 
 testimony on every point, the friends of David Henshaw, and Mr. Henshaw himself, 
 are ready and desirous to meet it, and every other charge against him, as has been 
 shown by his memorial to the Senate of Feb. 14th. 
 
 And here they rest the ample and incontrovertible defence of Mr. Henshaw, which 
 will doubtless surprise many who have been led to suppose that where there has been 
 so much assertion there must have been some proof, and that no men could be found, 
 in civilized society, to make such charges as have been made against Mr. Henshaw, 
 with so little shadow of evidence to support them. 
 
 In conclusion, we ask every citizen who knows how to appreciate the reputation 
 of other men because he values his own, to say, upon this exposition, what judgment 
 upright and high-minded men ought to pass upon the calumniators of David Hen- 
 shaw ? And if any Senator of the United States was influenced in his vote against 
 the nomination of Mr. Henshaw by such calumnies, we ask him, as an honorable and 
 honest man, to say if he is not now convinced that he has been misled, by slander, 
 into an erroneous and unjust judgment ; and for the justice of this conclusion we 
 appeal to every man capable of an honorable sentiment. 
 
 BOSTON, Feb. 20, 1844. 
 
 ADDITIONAL. 
 
 While this pamphlet was going through the press, a document was received, which 
 is printed as 
 
 " Report No. 257, 28th Congress, 1st Session, House of Representatives, Feb. 28, 
 1844. Read and laid on the table," headed " WILLIAM WRIGHT." 
 
 This is ajiftk official investigation on account of Mr. William Wright's exquisite 
 perception in the matter of the South Boston lands, and has resulted, like all the rest, 
 in his discomfiture and failure to fasten fraud or a suspicion of misconduct on any 
 one. 
 
 The Report is made by Mr. Saunders, of North Carolina, Chairman of the Com- 
 mittee on the Judiciary of the House, to whom Mr. Henshaw addressed his letter, 
 which was recently published. Appended to that report are several of the documents 
 which are published in the Appendix to this pamphlet, but the Committee on the 
 Judiciary did not have before them many of the most important documents and facts 
 which are given, and established by proofs in this " Refutation." The documents 
 before them were, Mr. Mills' letter to the Solicitor, of August 6, 1838, and the 
 accompanying papers there referred to ; the oath and return of the Appraisers and 
 the Marshal, (but not the statement of the Appraisers as to their proceedings ;) and 
 the opinion of Hon. Rufus Choate, of Nov. 22, 1838. 
 
 All the above documents are published in the Appendix to this " Refutation," but 
 they constitute only a small portion of the evidence here collected to establish the 
 correctness of the proceedings ; nevertheless, they were sufficient to satisfy the Com- 
 mittee on the Judiciary, and they asked to be discharged from the further considera- 
 tion of the memorial of William Wright. 
 
 This very recent report of the Committee on the Judiciary was made " upon the 
 memorial of William Wright," the history of which is thus given. It was presented 
 at the first session of the 26th Congress, and referred to a select committee, who 
 asked authority to proceed to Boston, with power to send for persons and papers, and 
 " to inquire into all matters relating to the collection and settlement of the claims of 
 the United States against the late Commonwealth Bank." This motion was laid on 
 the table. At the second session of the 27th Congress, (1842,) the memorial was
 
 30 
 
 again referred to a select committee, who asked for the same power as above ; and ori 
 motion of Mr. Saunders, power was granted to the committee " to send for persons 
 and papers, or to take the depositions of witnesses, as to them shall seem most expe- 
 dient." 
 
 Under this ample authority, a subpoena was forwarded to William Wright, the 
 memorialist, and he was directed to insert in the subpoena the names of suck other 
 witnesses as he might deem important ! This process put into the hands of William 
 Wright, (the accuser-general in this matter,) the unlimited power to summon before 
 the Judiciary Committee at Washington, or to take the depositions of those from 
 whom, under oath, he could get a fact to charge fraud, connivance or misconduct 
 upon Messrs'. Mills, Henshaw, Sibley, Choate, Merrill, Gurney, Binney, Pickering, or 
 any person directly or indirectly connected with his alleged "stupendous cheat" in. 
 the matter of the South Boston lands and the Commonwealth Bank. 
 
 Instead of doing this, the committee say, " Mr. Wright neither attended in person, 
 nor caused any other witnesses to be summoned before the committee /" and the com- 
 mittee asked to be discharged from the memorial. 
 
 At the present session, (1814,) after Mr. Henshaw's nomination as Secretary of the 
 Navy, this same Mr. William Wright " again memorialized Congress, insisting that 
 the government has been defrauded of large sums of public money, which by proper 
 steps may be recovered back;" which memorial was referred to the Committee on the 
 Judiciary. Mr. Wright had been notified to present testimony to substantiate 
 his charges, but, as they say in their report, " he failed to testify or to offer any proof, 
 but relied upon the documents on file in the department, full copies of which were 
 forwarded, and upon the transcripts of certain papers forwarded from the public 
 records in Boston." 
 
 All these papers are embraced in the documents above enumerated as the appendix 
 to the report of the Judiciary Committee. 
 
 Here was an entire failure to produce evidence on the part of the accuser. 
 Upon this evidence, the committee say that " the report of Mr. Gilpin, Solicitor 
 of the Treasury, denies many of the material facts, as charged [by William Wright,] 
 and justifies the transaction." They also add that Mr. Wright does not profess to be 
 able to disclose any more facts, and they distinctly negative his main charge, viz., 
 that the South Boston lands might have been sold by the Marshal, instead of extend- 
 ing the execution and set off upon them, as was done under the agreement, because, 
 as the committee say, " the Bank had nothing whereon to levy, except the land of 
 the Warren Association, which had been conveyed [to the Bank] with the express 
 understanding that it was to be proceeded against by appraisement, and that in dis- 
 charge of the securities of the Association, which were pledged for the indemnity of 
 the sureties on the deposit bond of the Bank." They further say, that " the United 
 States had no judgment against these sureties, and, as its Attorneys supposed, in all 
 probability might never obtain one." 
 
 The final result the committee arrive at, (even without the aid of much of the 
 most material evidence in the case, which was not laid before them, but which is 
 found in this " Refutation,") is as folloAvs : " And whilst partiality and corruption 
 ' may be the general rule for setting aside awards and proceedings of this kind, /rom 
 the evidence before them the committee do not feel at liberty to draw such a conclu- 
 sion. The late Solicitor of the Treasury, (Mr. Gilpin,) the law officer of the gov- 
 ' ernment, under whose supervision this whole matter had been conducted, and who 
 ' had every means of correct information, has said, in a letter to the first select com- 
 ' mittee raised on the subject, after full inquiry, he had ' no hesitation in expressing 
 ' approbation of the course taken, as that which, under the circumstances, was proper 
 ' in a legal point of view, and decidedly best for the interest and ultimate security 
 of the United States.' This opinion is well fortified by the report of the District 
 4 Attorney, a gentleman of unimpeached integrity, as well as by that of the Hon. 
 ' Rufus Choate, who had been engaged as associate counsel, and directed to take any 
 and all such legal steps as might be considered necessary to the interest of the 
 4 United States, and whose attention had been especially called to this very matter. 
 ' In his report to the Solicitor, Mr. Choate uses this strong language, thus emphat-
 
 31 
 
 " ically exonerating Mr. Mills, the United States Attorney, who had conducted the 1 
 " whole business, from all grounds of censure or suspicion : ' The result to which I 
 " have arrived is, that the arrangement effected by Mr. Mills was, Under the embar- 
 " rassing circumstances of the case, a judicious arrangement for the government, 
 " entered into in the purest official good faith, in the exercise of a sound discretion.' 
 
 " Such being the history of the transaction, the committee cannot perceive the! 
 " necessity of any action on the part of Congress. If the facts, as disclosed by the 
 " documents, represent the matter truly, then it becomes a judicial question, whether 
 " they disclose such a case of collusion and fraud as to call for the interposition of 
 11 the courts to set aside the proceedings. If the facts be not fully disclosed, still it 
 " would be for the court before whom the judgment had been rendered, and to which 
 " the writ of execution had been returned, to investigate the matter, and to take such 
 " proceedings in that behalf as the circumstances might demand. The Treasury 
 " Department has full power, it is presumed, to employ an agent to inquire into the 
 " facts, if any doubt should exist as to the correctness of what is on file. So as td 
 " the proceedings under the writ of extent, by which the United States has acquired 
 " and holds title to the property : if not according to law, it would be a question for 
 " the judiciary to decide. The memorialist does not profess to be able to disclose anij 
 " state of facts itihich toould enable Congress to decide the points in dispute. 
 
 " In conclusion, the committee content themselves with a detail of the facts as 
 ".herein before given, and with referring to the reports made by the two legal gen* 
 " tlemen who have had charge of the matter ; and if it shall be the pleasure of the 
 " House to take any further order in the premises, it will be in its power to do so, 
 " from the facts as disclosed. The committee, however, do not propose anything to 
 " be done, and respectfully ask to be discharged from the further consideration of the 
 " memorial.'' 
 
 This report fully sustains all the preceding reports upon this subject, and demon* 
 strates, Over and over again, the futile pertinacity with which these now Jive times 
 refuted charges have been pressed upon Congress and the Departments, by men 
 who, when every power of investigation is put into their hands, and the whole aid 
 of Congress given them to summon witnesses and collect depositions and documents 
 from any and every quarter, are compelled to back out from even an exparte proof 
 all on one side, and to confess, when pushed to the point of giving or producing tes- 
 timony, that they " are not able to disclose any state of facts ivhich toould enable Con* 
 gress to decide the points in dispute*" 
 
 Again we ask what judgment honest and honorable men ought to form of the 
 character and conduct of such pertinacious and jive times discredited calumniators ? 
 They have exhausted Congress and the Departments, and met only with distinct 
 disproof and condemnation of all their charges. The courts are open to them, and 
 the parties accused are as ready to meet the issue in that tribunal as they always 
 have been the scrutiny of Congress or the judgments of honest men. But in the 
 mean time, the libellers in these maliciously groundless allegations may thank the 
 forbearance of those they have calumniated, that they have not been called upon for 
 proof of their libels, in the form of judicial process, and been compelled, as the prin- 
 cipal accuser was, when summoned before the committee of the House, to confess 
 that they " do not profess to be able to disclose any state of facts," to prove the truth 
 in justification.
 
 APPENDIX 
 
 OF DOCUMENTARY EVIDENCE, ESTABLISHING THE FACTS STATED IN THE TEXT. 
 
 No. 1, page 5. 
 
 Withdrawal of funds from the Commonwealth Bank. 
 
 Commonwealth Bank, Boston, Feb. 16, 1838. 
 
 DEAR SIR, 1 would state that the specie deposited was what is termed a special deposit ; and in 
 every instance where there was a credit or a debit to the account, the following remark is made : 
 " Special specie deposit by D. Henshaw, Collector." With regard to the precise time said deposit 
 was withdrawn from the Bank, on that day, I am not able to inform you ; so far as I can recollect, 
 however, it was between the hours of twelve and one. It is impossible for me to be more" particular 
 on this point, owing to the very numerous business transactions I was obliged to perform, on that 
 day, in my duty as teller. 
 
 In answer to your question touching the testimony given by me to the committee appointed by 
 the state, whether it was written by me or by the committee, I would say, it was taken verbally from 
 me, and written by them. I would also state that the minutes of my testimony, taken by said com. 
 mittee, were not, to my recollection, recapitulated. 
 
 Respectfully, TH. W. COLBURN, 
 
 Hon. DAVID HENSHAW. 
 
 Boston, Feb. 16, 1838. 
 
 DEAR SIR, Yours of the above date is before me. In answer to your inquiry respecting the time 
 I took the specie from the Commonwealth Bank, on January 11, from circumstances distinctly 
 within my recollection, it must have been about twenty minutes past one o'clock, when I brought 
 ihe specie from the Bank to the Custom House. 
 
 Yours, respectfully, PETER DUNBAR. 
 
 Custom House, Boston, Feb. 16, 1838. 
 
 SIR, In answer to your note of this day, I have to state, that on the llth of January, about 
 one o'clock, I called on Mr. P. Dunbar, who was the truckman for the Custom House, to go with 
 me to the Commonwealth Bank, and bring the specie, on special deposit, to this office. He went 
 with me to the Bank, and we there counted the specie, amounting to $10,028 71, which was brought 
 to the Custom House and deposited in the vault by him. 
 
 After I had returned, you requested me to withdraw from the Bank, at two o'clock, the remaining 
 Treasury notes there, which I did, amounting to $43,350. 
 
 Very respectfully, your obedient servant, 
 
 HON. DAVID HENSHAW, Late Collector, ADAMS BAILEY. Deputy Collector. 
 
 Custom House, Boston, Feb. 16, 1838. 
 
 In answer to your note, requesting me to state at what time, and what amount of specie was 
 withdrawn from the Commonwealth Bank, on the llth of January, and whether the specie was a 
 special deposit or otherwise, I have to say, that between one and two, P. M., of that day, the llth 
 of January, I received from the Deputy Collector, and deposited in the vault of the Custom House, 
 the balance of special deposit of specie from the Commonwealth Bank, amounting to ten thousand 
 and twenty-eight dollars and seventy -one cents. 
 
 I am, sir, very respectfully, your obedient servant, WM. A. WELLMAN, 
 
 Late temporary Cashier of the Boston Custom Hotesf. 
 Ho;<. DAVID HENSHAW, Late Collector of the Customs, Boston, 
 
 No. 2, page 9. 
 
 Mr, IVellman's statement as to the notice calling in the specie checks. 
 
 Custom House, Boston, Feb. 3, 1844. 
 
 DEAR SIR, Your note of the 2d instant, referring to my letter of the 16th of February, 1838, 
 addressed to Mr. Henshaw, late Collector for this District, is received. 
 5
 
 34 
 
 In answer to your request, that I would state the reason for my transfer to the Cashier r s Depart- 
 ment, and why I suggested to Mr. Henshaw the necessity for issuing a notice to persons holding 
 checks against the Custom House to present them for payment, I have to reply, that on the 9th 
 of January, 1838, I was informed that the books and accounts of the Cashier were in disorder, and 
 that the cash afl'airs required investigation ; and I was requested to assume the duties of that De- 
 partment. The amount of discrepancy in the Cashier's accounts was not known, and could not be 
 ascertained satisfactorily without an adjustment of the specie checks, which had been issued and were 
 outstanding. Accordingly, on the morning of the next day, the 10th, I notified Mr. Henshaw that 
 the specie check account, so called, could not be adjusted without calling in and redeeming those 
 checks outstanding. This was prior to the failure of the Commonwealth Bank, and before I had the 
 slightest intimation of its embarrassment, and was done with reference only to the settlement of the 
 accounts of the Cashier of the Custom House.* The notice referred to, was written by Mr. Henshaw 
 on the instant of the suggestion, in my presence, and sent to the public papers. 
 
 You request me to state, "whether Mr. Henshaw had been confined to his bed for many weeks 
 by sickness, and about how many days before the date of the advertisement he had been well 
 enough to attend to his official duties at the Custom House." In reply, I have to say that I am 
 HOW unable to state, precisely, the time he was absent from the office at that period ; but my im- 
 pression is, that he came to the office on the 8th of January, being the first time for several weeks. 
 
 On the llth of January, at the close of business, I received the balance of special deposit of 
 specie from the Bank ; and all outstanding checks were subsequently paid by me, under the direction of, 
 Mr. Henshaw. By reference to the records, it appears that the last check was presented and paid, 
 by Mr. Henshaw, on the 23d of March, about two months after Mr. Henshaw resigned the office 
 of Collector. Very respectfully, I am, sir, your obedient servant 
 
 WILLIAM WAJID. Esq., Boston. WM. A. WELLMAN. 
 
 No. 3, page 13. 
 
 31r. Taney's instructions as to deposits. 
 
 Treasury Department, Sept. 26, 1833. 
 
 SIR, Believing that the public interest requires that the Bank of the United States should cease 
 to be the depository of the money of the United States, I have determined to use the State Banks as- 
 places of deposit, and have selected for that purpose, in the city of Boston, The Commonwealth 
 Bank, and The Merchants' Bank. 
 
 You will, therefore, present the enclosed draughts of contracts to the respective Batiks for which 
 they are intended, and upon the execution of the contracts, you will forward them to this Depart- 
 ment. You will ask the aid of the District Attorney of the United States, who will see that the 
 several contracts are executed in dne form. 
 
 The contracts being executed, you will then deposit all of the public money which may come to 
 your hands, after the thirtieth of this present mouth of September, in the banks above mentioned, 
 until the further order of this Department. You will also deposit in the said banks for collection, 
 all of the Bonds which may hereafter be taken for the payment of duties. 
 
 You will also call on the Branch Bank of the United State?, in the city of Boston, and receive 
 from it all the Bonds heretofore given to the United States, which are payable on or after the first 
 day of October next, and deposit them, for collection, in the aforesaid State Banks. I send yoi> 
 herewith an order on the Branch Bank, for that purpose. 
 
 The money received by you, and the bonds, are to be apportioned among the said State Banks, 
 so as to divide the public deposits as near as may be among them, according to the amount of 
 capital actually paid in. 
 
 When the contracts shall have been executed by the banks, you will forward the enclosed letters- 
 to the Collectors of Plymouth, Barnstable, New Bedford, Belfast, and Kennebunk, who have here- 
 tofore deposited the money received by them in the Branch Bank, at Boston, The collections out 
 of Boston, not being very large in amount, they are, to save trouble and perplexity, all directed, as- 
 you will see, to be paid into the Commonwealth Bank. 
 
 You will continue to deposit as usual in the Branch Bank of the United States, ttutil the thirtieth 
 of the present month of September, inclti 
 
 You will keep a copy of the contracts executed by the banks, and from time to time advise this 
 Department of anything you may deem material to the public interest, connected with the change 
 of the deposits. (Signed) R. B. TANEY, Secretary of the Trtatury* 
 
 To DAVID HEN-SHAW, Esq.. Collector, Boston. 
 
 fto. 4, page 13* 
 
 Sir. Hcnsharts letter to Mr. Tdne.y. 
 
 Boston Custom House, Sept. 3Qth, 1833. 
 
 R. B. TAXITY, Esq., Secretary of Treasury. SIR, In obedience to your instructions of the 26tnv 
 the contract with the Commonwealth Bank" and the Merchants' Bank of this city to receive on de- 
 
 * This fact was not mentioned in my former note from motives of kindness on the part of Mr. Henshaw,
 
 35 
 
 I 
 
 posit the money of the United States, have been executed. And I have the honor to enclose one 
 with each of these banks, retaining the duplicates. These banks will give the collateral security 
 stipulated in the contracts, to be furnished whenever required. But from their good standing 
 and known solvency, it will probably never be necessary to require it. I withdrew the Bonds payable 
 in October, from the Branch of the U. States Bank, where they had been lodged for collection, and 
 deposited them in the Commonwealth Bank this day. I deviated so far from your instructions as 
 to place them all in that bank. I had not time to divide and make out the necessary schedule of 
 them. I shall pay into the Merchants' Bank, at the end of each week, to the credit of the Treasury, 
 half the balance in the Commonwealth Bank. This plan will simplify the business both for the 
 Collector and the banks. The Collector will keep, in that case, an account with but one bank, 
 saving half the labor, and the Merchants' Bank will have an account with the Treasury only. 
 
 This arrangement is mutually satisfactory to the banks, and if there be in it any inequality of 
 burdens or benefits, they will equalize it between themselves. I shall therefore, with your appro- 
 bation, continue it as I have begun. Respectfully yours, DAVID HENSHAW, Cutluior. 
 
 Custom House, Boston, Feb. 23, 1835. 
 
 I do hereby certify that the foregoing is an extract from the copy of the original letter, as it 
 appears on the records of this office. GEORGE BANCROFT, Collector. 
 
 No. 5, page 13. 
 
 Mr. Taney's Approval. 
 
 Treasury Department, October 5th, 1833. 
 
 SIR, Your communication of the 30th ult. has been received, as also the contracts of the 
 Commonwealth Bank and the Merchants' Bank inclosed therein. 
 
 Your proceedings relative to the deposits of the public money in those banks, as detailed in yout 
 communication above referred to, are approved by the Department. 
 
 I am respectfully, y<5uf obedient servant, 
 {Signed) R. B. TANEY, Secretary of the Treasury-. 
 DAVID HENSHAW, Esq., Collector of the Customs, Boston. 
 
 Custom House, Boston, February 23, 1838. 
 
 I do hereby certify that the foregoing is an exact copy of the original letter, as it appears on the 
 irecords of this office, GEORGE BANCROFT, Collector, 
 
 No. 6, page 14. 
 
 Mr. Hensharc to Mr. Woodbury, on balance in the Bank. 
 
 ^Custom House, Boston, May 23, 1837. 
 
 SIR, I send you the weekly return, ending May 20th, showing a balance due to the U. States, 
 of $64,321 49. This balance consists of $55,407 62, deposited in the Commonwealth Bank ; $2,521, 
 in specie on hand $1,465 50 deposit, in bills, in settlement of impost on woollens, and $408, in bills ; 
 all taken before the receipt of your instructions of the 12th. Also $2,817, in sums paid to Inspectors. 
 &c., net yet charged. I have likewise in the Commonwealth Bank, $1'6,500 deposit in bills, amount 
 of ditties on wool and woollens, impost and tonnage, the accounts of which are not yet made up, 
 so as to enable me to bring them into the statement, and the difference between these sums and 
 the apparent balance of $64,321 49, is in the fee account, which will appear on the settlement of my 
 quarterly account. I omitted to pay anything to the credit of the Treasury, the last week, owing 
 to the new state of things. 
 
 I shall probably collect little money on bonds, and I shall have considerable to pay, during the 
 gammer, to Light-House keepers, Light-House repairs, Revenue Cutter, Hospital, &c. I have, 
 therefore, retained this sum to my credit in Bank, and await your instructions, either to have it so 
 remain for these purposes, or to pay it, or any part of it, over to the credit of the Treasury, as 
 heretofore, as you may direct. Respectfully, yours, DAVID HENSHAW, Collector. 
 
 HON. LEVI WOODBURY. 
 
 No. 7, page 15. 
 
 Mr. Woedbvry, concerning funds for Fishing Bounties. 
 
 Treasury Department, November 1st, 1837. 
 
 SIR : I have to call your attention to instructions heretofore given, respecting the payment of 
 allowances to fishing vessels, and request that you will inform to them in all respects, in regard to 
 those becoming payable on the 31st of next month.
 
 In addition to others heretofore authorized to draw upon you for those objects, the Collectors of 
 the Districts in Rhode Island and Connecticut have received such authority. You will be pleased, 
 therefore, to honor their drafts, provided they shah have first complied with the usual formalities 
 respecting the returns required to be furnished you. 
 
 In the event of the funds in your hands from accruing duties not proving adequate to meet these 
 objects, and the Department being so advised, and also furnished with the amount probably 
 required, money will be supplied you, either by drafts upon some of the banks in your vicinity, or 
 by the issue of Treasury notes, whichsoever may be deemed most advisable at the time. 
 
 I am, very respectfully, your ob't serv't, 
 
 LE VI WOODBURY, Secretary of the Treasury. 
 
 DAVID HENSHAW, Esq., Collector of the Customs, Boston. 
 
 No. 8, page 15. 
 
 Mr. Woodbury to Mr. Henshaiv. 
 
 Treasury Department, November 29th, 1837. 
 
 SIR, I am in the receipt of your letter of the 25th inst., furnishing an estimate of the amount 
 of money necessary to pay the drafts for fishing bounties, authorized to be drawn upon you by cer- 
 tain Collectors. 
 
 The Department will send you, as soon as they can be prepared, Treasury notes and drafts to the 
 amount of fifty thousand dollars, and the balance, say one hundred and seventy five thousand dol- 
 lars, before the first of January next, on which day payments for these objects fall due. 
 
 In regard to the odd sums to which you allude, they can be paid from the funds now in your 
 hands, or the drafts which you will be pleased to retain for that object. The Treasury notes can be 
 paid out for the current expenses of your District, and for such fishing bounty drafts as they can 
 be applied to. I am, very respectfully, your obedient servant, 
 
 LEVI WOODBURY, Secretary of the Treasury. 
 DAVID HENSHAW, Esq., Collector of the Customs, Boston. 
 
 No. 9, page 18. 
 
 Mr. Henshan's letter to the Comptroller. 
 
 Boston, December 20th, 1839. 
 
 SIR, The last adjustment of my accounts, as late Collector of the District of Boston and 
 Charlestown, received from your office, dated February 25, 1839, and claiming a balance due from 
 me of $80,272 30, has remained thus long unanswered, in the hope and expectation that you would 
 credit me with the sums I have heretofore and now claim to have credited. 
 
 The first item is the sum of $65,941 77 
 
 deposited in the Commonwealth Bank. 
 
 The. second is a balance due on my emolument account for 1829, of 1,15385 
 
 The third is the amounts I paid to the Weighers and Gaugers in 1836 and 1837, . . 9,120 44 
 
 I do not include in these your disallowance of my commission, $530 64, charged in my account 
 of Dec. 31st, 1837. 
 
 In relation to the first item, $65,941 77, which has been the subject of former frequent commu- 
 nications with the Treasury' Department, I have to remark, that I am entitled to a credit upon the 
 principles admitted in the First Auditor's letter to the Secretary of the Treasury, of November 15, 
 1839. The Auditor, however, misapprehends the fact in supposing that I made frequent deposits 
 of bank paper or bank credits, in the Commonwealth Bank, after I was notified that it ceased to be 
 a deposit bank. The only sums thus deposited to my credit, were $30,500, placed there to my 
 credit by the Department on its own motion, and $42,000 a check on the Bank itself, to aid in pay- 
 ing fishing bounties, and which was appropriated for that purpose. But I deem it quite unne- 
 cessary to enter into these details ; for whether or not I could originally have been held liable for 
 the solvency of an institution selected by the government as its depository, and with which I was 
 ordered by the competent authority to make my deposits of the public money. I clearly cannot as 
 the case now stands. The United States sued for this money as belonging to them, and as due to 
 them from the Commonwealth Bank. They have recovered judgment against the Bank, and I 
 believe have got their pay or ample security. 
 
 The First Auditor, in the letter referred to, says : " I now understand that a judgment has been 
 taken in favor of the United States against the Bank, including the above sums ; and Mr. Henshaw 
 now insists that inasmuch as the United States have taken the Bank for the deposit in question, that he 
 ought of course to be released, and a credit given to him for the same amount. I had no notice of 
 this judgment until recently, nor am I now officially informed under what circumstances it was 
 taken. I presume, however, that if it has been taken under the direction of the Department, unless 
 taken as collateral security, with the consent of Mr. Henshaw, it will release him ; and that, as a 
 matter of course, he ought to be credited with the amount on his account." 
 
 The First Auditor, on the 9th of February, 1839, admits that the judgment was taken under the
 
 37 
 
 advisement and direction of the Secretary and Solicitor of the Treasury, and it certainly Was not 
 taken with my assent ; nor could it be taken as collateral security in this way. The taking the 
 judgment against the Bank for this debt, extinguished all legal and equitable claim upon me, if any 
 had before existed ; but I maintain that the United States never had any claim on me for the sol- 
 vency of this Bank, or the payment by me of this money held by the Bank, either in law or 
 equity ; and the withholding this credit from me, under these circumstances, when the United States 
 have not only taken a judgment against the Bank, but have actually received on attachment and 
 execution the sum of about $298,000, and for the balance of about $56,000, retain ample security, 
 I cannot but consider an act of great injustice and palpable oppression. 
 
 On the second item of credit I claim $1,153 85. I have to remark that it is simply a question 
 whether the law, which limits the amount of fees a Collector can retain, fixes or not a pro rata 
 compensation. Having before given my views to the Department on this point, it is needless to 
 repeat them now. But I beg leave to remind you that the District and Circuit Courts of the United 
 States, for this Judicial Circuit, have decided the principle on which this allowance is claimed to be 
 correct, in the cases of the United States vs. William Pearce, late Collector at Gloucester ; and 
 quite recently, in the case of the United States against R. D. Harris, late Navy Agent in this place. 
 
 The Circuit Court of Illinois has also enforced the same principle in the case of B. F. Edwards, 
 receiver of public moneys at Edwardville, 111. ; and I am informed that the Judges of the Supreme 
 Court, at their last meeting in Washington, on an informal consultation among themselves, con- 
 firmed this principle. If any additional sanctions are required, permit me to refer to your own 
 Department. If I am rightly informed, Mr. Thompson was allowed by Comptroller Anderson, as 
 Collector of New York, for the first four months of 1829, $3,995 76, and Mr. Swartwout, who suc- 
 ceeded him, was allowed $4000 for the residue of that year. With these facts in existence, it seems 
 harsh to refuse me the credit I claim, and hard to drive me to the expense of a judicial decision to 
 obtain justice. 
 
 The next item of your disallowance is $9,120 44, comprising in your adjustment various sums I 
 paid to the Weighers and Gaugers in 1836 and 1837. 
 
 The principal part of this sum, viz., $6,882 20, you aver to be surplus fees overpaid the Weighers 
 and Gaugers of this port for the year 1836. 
 
 The manner in which you arrive at this result is this : you take the whole amount of fees earned 
 
 by these officers in the year 1836, say , $25,833 50 
 
 You deduct expenses, 8,451 30 
 
 Net earnings, 17,382 20 
 
 You then deduct for 7 Weighers and Gaugers, $1500 each, 10,500 00 
 
 Leaving $6,882 20 
 
 which you decline to allow. Your first error is in assuming, contrary to the facts, that there were but 
 seven Weighers and Gaugers at this port in that year. The permanent Weighers and Gaugers for 
 1836. were Joseph Loring, Thomas M.Vinson, J. L. C. Amee, N. Tracy, J. M. Fiske, A. H. Wai'd, 
 Theodore Dexter, James Estabrook, Samuel Walker, L. Hamilton, Ezra Mudge, John Champney 
 and S. Cole. Col. Vinson resigned in the early part of the year, and Gen. J. L. C. Amee succeeded 
 him. The appropriation law of 1835, fixing a maximum for these Weighers and Gaugers, expired 
 on the 31st of Dec., of that year. The new act, limiting their compensation, did not pass until 
 July 4, 1836. The Weighers and Gaugers in the mean time were entitled to all the fees prescribed 
 by the acts of Congress in 1799 and 1816, as fast as they earned them. They had earned and 
 received, exclusive of their expenses, prior to the passage of the law, $12,819 70, divided as follows : 
 to Vinson and Amee $1,831 38J, and to Tracy, Fiske, Loring, Dexter, Estabrook and Ward, each 
 the same sum. On learning the passage of the appropriation act of July 4, 1836, these officers 
 resigned, except Gen. Amee and A. H. Ward. I considered the law prospective in its operation, 
 and that Congress so intended it that they could no more legislate these fees out of the hands of 
 the Weighers and Gaugers who had earned and received them, under existing laws, by a retroac- 
 tive law, than they could legislate your salary for years past, out of your pocket. On the resigna- 
 tion of these officers, Samuel Walker, L. Hamilton, Ezra Mudge, J. Champney and S. Cole were 
 appointed. Some of these acted and were paid as temporary officers, before their appointment as 
 permanent officers. I suppose there Can be no doubt that these officers were entitled to their fees 
 as fast as they earned them 4 , not to exceed the pro rata compensation they contend that they arc 
 entitled to them until they reach the maximum. I do not consider it necessary here to repeat what 
 I have so often written before, on the details of these accounts. We differ radically in the principle 
 of making them up. You contend that there were but seven offices of Weighers and Gaugers at 
 this port in 1836, and that there were o"nly $1500 appropriated to each office ; that the appro- 
 priation law of July 4, 1836, had a retrospective operation back to Jan. 1, 1836 ; that I am bound to 
 refund what I paid the seven Weighers and Gaugers over the pro rata or rather maximum of $1500. 
 
 I maintain that theTe were thirteen officers employed as permanent Weighers and Gaugers 
 during that year ; that those employed before the passage of the act of July 4, 1836, were legally 
 entitled to receive and retain all they earned prior to that period; that those em ployed subsequently 
 were entitled to their fees until they reached the maximum of $1500 ; and further, that if there be 
 a refund claimed, the Department must look to the officers who received and who owe the money, 
 and not to me for it. I am informed that the Department sanctioned this last principle iu the set. 
 tlement of Mr. Breedlove's accounts as Collector of New Orleans. 
 
 In conclusion, permit me earnestly to solicit your attention to my claims. I am very desirous to
 
 39 
 
 have my accounts closed. The delay in settling them is a serious inconvenience to me, and I 
 think an act of unnecessary and unmerited hardship. 
 
 Respectfully yours. DAVID HENSHAW, Late Collector. 
 J. N. BARKER, Comptroller. 
 
 No. 10, page 18. 
 
 Record of Judgment of the Court. U. S. vs. David Henshatv. 
 UNITED STATES OF AMERICA. MASSACHUSETTS DISTRICT, ss. 
 
 At the District Court of the United States, begun and holden at Boston, within and for the Dis- 
 trict of Massachusetts, on the first Tuesday (being the first day) of December, in the year of our 
 Lord one thousand eight hundred and forty. Before the Honorable JOHN DAVIS, lud^v. 
 
 The United States of America Fill's., vs. David Henshaw, of Boston, in the District of Massa- 
 chusetts, Esq., Defendant. In a Plea of the case, for that the said Henshaw, at said Boston, to wit, 
 on the day of the purchase of this writ, being indebted to the said United States in the sum of 
 seventy-five thousand dollars, for so much money there before that time by the said Henshaw, 
 of the said United States, and to their use had and received, in consideration thereof promised 
 said United States to pay them the same sum on demand. Yet the said Henshaw, 
 
 although often required, has not paid to the said United States the said sum, but hitherto altogether 
 has, and still does refuse to pay the same, to the damage of the said United States, as they say, the 
 sum of seventy -five thousand dollars. 
 
 This action was entered at the present term of this Court, and the parties appear by their re- 
 spective attornies, and the Marshal returns that he attached a chip, the property of the said Defendant, 
 and summoned him to appear and answer at Court, by giving him in hand a summons : And now, 
 by consent of parties, the said Defendant, although solemnly called to come into Court, does not 
 appear, but makes default. It is therefore considered by the" Court, that the said United States of 
 America recover against the said David Henshaw, the sum of eight hundred and thirty-six dollars 
 and twenty-five cents, damage, and costs of suit, taxed at eighteen dollars and eighty-two cents. 
 
 A true copy. 
 
 Attest, FRANCIS BASSETT, Clerk. 
 
 Jfo. 1 1 , page 23. 
 
 Statement of S. S. Len-is and Robert G. Shari). 
 
 Boston, December 27, 1843. 
 HON. DAVID HENSHAW, Secretary of the Navy, Washington. 
 
 DEAR SIR : Noticing in the Bay State Democrat of the 23d instant, a gross, and as I know 
 wholly unfounded attack upon your character and integrity as a man and public officer, by charging 
 yott direct with perpetrating a fraud against the Government in the land settlement with the Com- 
 monwealth Bank, and having held with yourself, jointly, a large amount of securities placed in 
 our hands by the Bank to indemnify the Directors and others against the Government, I was 
 knowing to all the negotiations and settlements made between the Bank and the Government ; a 
 part of which, I effected myself. 
 
 In justice to you, I feel it to be a simple act of duty to state the facts as they existed in those 
 settlements. 
 
 In the first place, allow me to say that the Government, instead of being injured by you, (as 
 charged upon you,) are mainly, if not entirely, indebted to you, and to me, for all but about $37,000, 
 of the debt recovered of the Bank, amounting to $345,517 55 ; for it was by our joint and perse- 
 vering exertions that the Bank, after several days' hesitation, placed in our hands, as joint Trustees, 
 promissary papers and securities to the amount of their indebtedness to the Government. 
 
 Two settlements were made between the Bank and the Government ; the first by a levy on lands 
 belonging to a land company called the " Warren Association/' composed of a number of highly 
 respectable persons of both political parties, in which you were a stockholder to a comparatively 
 trifling amount. The Treasurer of this company was Hon. John Pickering, solicitor of the city of 
 Boston, and one of our most eminent lawyers. The notes of this company, to the amount of 
 S 160,000, were among the securities turned over by the Bank to us, as before mentioned, and were by 
 us given up to the United States Marshal. Subsequently, after a long negotiation between the coun- 
 sel for the Bank and the U. S. District Attorney, an agreement was made between them, that the 
 Government should receive in payment for these notes the lands of the company, by levy and ap- 
 praisement. The whole transaction, negotiation, levy and appraisement were conducted by highly 
 nonoraole men, all of whom were entirely disinterested in the result of the transaction, and they 
 were all, excepting the District Attorney and the Marshal, influential members of the Whig party. 
 
 John R. Adan, Esq., counsel for the Bank, managed the negotiation on its behalf, with the Dis- 
 trict Attorney.
 
 39 
 
 
 
 The appraisers consisted of Hon. Judge Merrill, Hon. Nathan Gurney, then Senator of Massa 
 chusetts, and Alderman of the city of Boston, and Amos Binney, Esq., Representative from Boston 
 to the State Legislature ; all men of high standing morally and politically, and enjoying, in a large 
 degree, the confidence of this community. Is it to be supposed that such men would allow you, or 
 any one, to influence them in fixing, under oath, (as they were bound to do) the true value, to the 
 best of their judgment, upon these lands ? The idea is too absurd ; and yet, this supposition, as 
 unlikely as it appears, is the only one by which I can conceive you to be benefited in the settlement, 
 and then only to the amount of your trifling interest in the shares of the Company, by influencing 
 the lands to be appraised above their real value ; your gain would then be the excess of such extra 
 valuation on your shares. The thing carries with it its own refutation of the base slander. 
 
 As I have said before, the counsel of the Bank made the arrangement with the District Attorney : 
 and you are no more responsible for that settlement, than you are for the second and last settle- 
 ment, which I made myself, with the Solicitor of the Treasury at Washington, and the Hon. John 
 Mills, of which I take the whole responsibility. 
 
 But you have only, in order to set things right, to refer to the files of the Secretary, or the 
 Solicitor of the Treasury, for the written opinion of the Hon. Eufus Choate upon the subject of the 
 South Boston land settlement. He was employed by the Government to examine and report 
 upon it, and I have always understood that he did so. Robert G. Shaw, Esq., one of the Commis- 
 sioners associated with me in building the new Custom House in Boston, was a close observer and 
 took a deep interest in the matter of the settlement between the Bank and the Government, and he 
 is, I believe, acquainted with all the principal facts in the cases of both settlements. 
 With great respect, your obedient servant, 
 
 (Signed) SAMUEL S. LEWIS. 
 
 Boston, Dec. 28, 1843. 
 
 DEAR SIR, Our mutual friend, S. S. Lewis, Esq., has sent me the annexed letter to your address, 
 in which he has referred to me as being acquainted with the facts therein stated. I am acquainted 
 with what relates to the land levy, as also with many of the other statements, and believe the whole 
 to be true. 
 
 You will allow me to add, that I have known you intimately, since you commenced business, as 
 an honorable and upright merchant, and as an intelligent, faithful and industrious public officer, 
 and that your integrity has never been suspected by any one who knew you. 
 
 Your friend and obedient servant, 
 
 (Signed) ROBERT G. SHAW. 
 
 HON. DAVID HENSHAW, Secretary of the Navy, Washington, D. C. 
 
 No. 12, page 23. 
 
 Ansn-er of Mr. Lewis as Trustee. 
 
 C. C. Pleas, January Term, 1842. 
 SAMUEL BROADWELL vs. COMMONWEALTH BANK AND S. S. LEWIS, Trustee. 
 
 And now Samuel S. Lewis, in answer to the interrogatories to him proposed, declares and says, 
 that at the lime of the service of the Plaintiff's writ, he had not any goods, effects or credits of the 
 Defendant, in his hands, or possession, unless the Court shall otherwise determine from the fol- 
 lowing facts. 
 
 On the 1st of February, 1838, the said Defendant, by vote of the Directors, duly passed, trans- 
 ferred and delivered to the Respondent and Jno. Henshaw, Wm. Freeman, Charles Hood, Hall J. 
 How, Oliver Fletcher, F. S. Carruth, Otis Rich, Adam Bailey, Elisha Parks, John K. Simpson, and 
 David Hcushaw, certain promissory notes, and choses in action to secure and indemnify the said 
 parties against their liabilities for the Defendant, to the United States. This was subsequently 
 confirmed by the vote of the Directors, subsequently passed, and a copy of which is hereto annexed. 
 
 This respondent further says, that he, together with David Henshaw, was appointed by said Jno. 
 Henshaw and other trustees, to hold and manage the said property, and subsequently David Hen- 
 shaw relinquished said trust, and the respondent was appointed sole trustee. 
 
 The amount due the United States from said Bank at the time of its failure, was $345,517 55 ; 
 the amount (nominal) of the securities so transferred, was $364,011 37. Many changes, renewals, 
 and compromises had taken place in regard to said paper, with the assent of the said Defendant, 
 and said Tno. Henshaw and others, and the debt due the United States has been reduced to the sum 
 .'> U> 1.1 with interest,* and the amount paid has been paid from the aforesaid securities. 
 At the time of tho service of the Plaintiff's writ, this was the condition of the said debt, and no 
 change has since taken place to the knowledge of the respondent. 
 
 At the time of the service of the said writ, this respondent had nothing beside the said securities 
 in his hands, except a small sum of money not sufficient to defray the expenses to which this re- 
 spondent had been subjected, and the charges of executing the said trust, and excepting also bills 
 
 * This balance was subsequently paid, and the U. States received its whole debt, :\11 of which was 
 without depreciation, except the levy on the South Boston lands.
 
 40 
 
 of the said Bank, to the amount of $4,427, which this respondent, with the assent of parties interested, 
 had secured in payment of one of the said notes, so transferred to said Jno. Henshaw and others, 
 and which the respondent took for the purpose of delivering to said Bank. Wherefore this respon- 
 dent prays the judgment of said court, and for his costs. 
 
 Sworn to, &c. S. S. LEWIS. 
 
 A. 
 
 Mr. Gilpin to Mr. Mills, July 18, 1838. 
 
 Office oftite Solicitor of the Treasury, July 18, 1838. 
 
 SIB, I have this morning received from the Secretary of the Treasury a slip from the Boston 
 Times of the 13th inst., in relation to the debt due the United States by the Commonwealth Bank, 
 respecting which I wrote you yesterday. The statements made in that article are of so serious a 
 character, not merely as affecting the interest of the United States, but the official conduct of your- 
 self and the Marshal, that you will be sensible of the necessity of a prompt and full explanation of 
 all the proceedings in this case. I have to request that this may be accompanied with full copies 
 of the records, judicial proceedings, and written instruments connected with it. 
 
 It is not possible to believe, as is stated, either that the personal securities of the Warren 
 Association, which formed a portion of the assets of the Bank, actually attached by the Marshal, as 
 mentioned in your letter of the 1st March last, can have been surrendered ; or what would be still 
 more extraordinary, that under any arrangement, compromise, or color of legal proceedings, real 
 property, which cost but two and a quarter cents a foot, and would now bring but one and a half 
 cents a foot, should have been appraised and received by the officers of the United States at the 
 enormous price of fifteen cents a foot. 
 
 If either of these transactions has taken place, it must be regarded as a very great, not to say 
 fraudulent, violation of the rights and interest of the United States. Upon that ground an imme- 
 diate application ought to be made to the Court, to which the execution is returnable, to set aside 
 the appraisement, and set-off, alleged to have been made under it ; taking care, however, to pre- 
 serve the levy. At the same time I have to request, that, if not already done, proceedings may be 
 forthwith instituted, either under the act of 20th April, 1818, or, what I should deem more advisable, 
 in chancery, against the debtors of the Commonwealth Bank, including the members of the Warreu 
 Association. 
 
 In the present position of this case, the most prompt, energetic, and thorough measures must be 
 taken without delay, to protect the interests of the United States. This is due, not merely as a 
 matter of right to them, but for the vindication of the official character of their agents. 
 Very respectfully, your obedient servant. 
 
 R. D. GILPIN, Solicitor. 
 
 JOHN MILLS, Esq., District Attorney, Boston, Mass. 
 
 B, 
 
 Mr. Milts to Mr. Gilpiti, July 25, 1838 ; as to selection of Appraisers. 
 
 U. S. District Attorney's Office, Boston, July 25, 1838. 
 
 SIK, Your letters of the 17th and 18th of July current, have been received. In relation to the 
 statement in the slip from the Boston Times, you request me to give you a " prompt and full 
 explanation of all the proceedings in the case." 
 
 My former letters have informed you of the commencement of the suits and of the proceedings 
 against the Commonwealth Bank and its surelies. On the first of March last, I stated the proposi- 
 tion that had been made by the counsel of the Bank and the Warren Association, and that I 
 believed it would be for the interest of the United States to accept the proposition. Your answer 
 of the 6th of the same month I considered an approval of the arrangement. About this time, Mr. 
 Henshaw went to Washington, and had conversation with you on the subject. This I learnt by 
 your letter of the 9th of April. To avoid any misapprehension in relation to. the business, I trans-, 
 milled to your office the written proposition of the counsel for the Bank. This was substantially 
 the same as that previously communicated. In your reply (May 4.- 1838,) you gave your sanction 
 to the arrangement, " if the modes of proceeding or execution process authorized the setting off of 
 real property by appraisal." No one acquainted with all the circumslances, and whose mind is 
 free from prejudice, would doubt for a momenl that this arrangement was favorable for the U, 
 States. Suppose thai judgment had been rendered against ihe Association on those notes, and that 
 execution haxl then been in the hands of an officer, which would have been, thought the wiser 
 course, to levy that execution on the lands of the Association, agreeably to the laws in this District, 
 or seek a doubtful remedy against its individual members? It appears to me that no creditor, hav- 
 ing regard to his own interest, would hesitate to. take the former course. I suppose then that the 
 "fraud upon the Government," if any, consists in making the levy the selection o.f incompetent, 
 interested or dishonest men, for appraisers. By the laws in this District, one of the appraisers is to 
 be appointed by the officer, one by the creditor, and one by the deblor. As ihe Marshal had for- 
 merly been a member of the Association, we botli considered it improper for him to make a selec-
 
 tion, but he agreed to appoint any one that I should designate. This gave me the selection of two. 
 To prevent the possibility of any improper interference, I refused to give the names of the apprai- 
 sers till the day the levy was made, and did not do it till 10 o'clock on the morning of that day, 
 barely in season for the Marshal to give them notice of their appointment. I selected Judge Mer- 
 rill and Mr. Gurney. 
 
 Mr. Merrill is a Judge of the Police Court, and recently Senator in the State Legislature. Mr. 
 Gurney is an Alderman, and is now a State Senator. Their honesty and integrity have never been 
 questioned. They are acquainted with the real estate in all sections of the city, and have been 
 frequently employed as appraisers of land set off on execution. I am not personally acquainted 
 with Mr. Binney, the other appraiser, but he has the reputation of being an intelligent, high- 
 minded, honest man. 
 
 The appraisers met at the Marshal's office. I there made the enquiry whether they were mem- 
 bers of the Warren Association, or had any interest in that concern, or in the Commonwealth 
 Bank, and also whether there had been any recent inquiries of them respecting the value of the 
 lands of the Association, or of other lands in South Boston. They gave a negative answer to each 
 of these interrogatories. We then proceeded to view the lands. I remained with them the whole 
 time. They then adjourned to meet at Mr. Merrill's office at 8 o'clock the next morning. I have 
 since been informed by the chairman (Judge Merrill) that at their meeting each handed in his esti- 
 mate, and soon fixed upon 15 cents a foot, there being but little variance in their several estimates. 
 I am not acquainted with the value of real estate in the city, but I think the appraisal is high. I 
 know there are others, who are good judges of the property and disinterested, who would consider 
 it a fair appraisal. 
 
 I hope this statement will be satisfactory. Should it not be, I will endeavor to answer any par- 
 ticular inquiry you may make. The execution is now in the Register's office, but the Marshal 
 will transmit a copy in his next return, or sooner, if desired. 
 
 In regard to proceedings under the Act of 20th April, 1818, as suggested in your letters, I would 
 state, that the notes given by the Treasurer of the Association were negotiable, and were passed by 
 the Bank to the sureties early in January. Under these circumstances, the Association, in my 
 opinion, could not be held as the Trustee of the Bank. But if it could, if execution had been 
 obtained against the Association on its answer, it could have been satisfied only by a levy on the 
 real property. I am sir, very respectfully, your obedient servant, 
 
 (Signed) JOHN MILLS, District Attorney. 
 
 HON. H. D. GILPIN. 
 
 c 
 
 Statement of the Appraisers. 
 
 Boston, September 8tk, 1838. 
 
 GENTLEMEN, Representations have been made to the Solicitor of the Treasury, that the apprai- 
 sers of the lands recently set off on execution in favor of the United States against the Common- 
 wealth Bank, made two valuations of the same. That the first appraisal was made to ascertain the 
 quantity of land which the Warren Association should convey to the Bank in discharge of their 
 notes, and that, after the conveyance was made, they went through " the mock ceremony " of a 
 second valuation on the execution. 
 
 In consequence of these representations, I take the liberty of requesting you to give me a written 
 answer to the following interrogatories : 
 
 1. Did you make more than one valuation of the lands levied on by an execution in favor of the 
 U. States against the Commonwealth Bank in May last? 
 
 2. Did you ever examine the lands levied upon for the purpose of making a valuation of them 
 before you were sworn as appraisers on the execution ? 
 
 3. Did you, before you had fixed upon the valuation, know or hear of any appraisal of those 
 lands being made at the time they were conveyed to the Bank, or did you know what consideration 
 was expressed in the deed from the Trustees of the Warren Association to the Bank? 
 
 4. Did you know of any intention to appoint you appraisers, till you were notified of your 
 appointment by the Marshal or his Deputy ? 
 
 5. At what time in the day were you notified of your appointment, and how soon afterwards did 
 you view the lands ? 
 
 I think it proper to state, that I shall transmit your answer to these questions to the Solicitor's 
 office. I am, gentlemen, very respectfully yours, 
 
 JOHN MILLS. 
 To JAMES C. MERRILL, 
 NATIIAN GURNEY, 
 AMOS BINNEY, Esq'rs. 
 
 To the annexed interrogatories, we answer as follows : 
 
 To the first, second, third and fourth, NO. 
 
 In answer to the fifth, we say we were notified of our appointment but a short time, probably not 
 more than an hour before we were sworn, and did not know, until the time of being sworn, who 
 were the parties or what was the property to be appraised. We proceeded to view the premises 
 6
 
 42 
 
 immediately after the oath was administered. We did not know, at the time of the appraisement, 
 the amount due from the Warren Association- to the Bank. 
 
 JAMES C. .MERRILL, 
 NATHAN GURNEY, 
 September U, 1838. 
 
 I concur in the above answers, with one exception, that several days previous to the appraise- 
 ment I was asked whether or not I would act as appraiser in a case between the United States andl 
 the Commonwealth Bank, to which I replied that I would if appointed. No further conversation 
 on the subject was held by the gentleman enquiring, and me, before the appraisement. 
 
 AMOS BINNEY. 
 
 September 15, 1838. 
 
 1>, page 1223* 
 
 Report of District Attorney to the Solicitor. 
 
 U. S. District Attorney's Office, Boston, August 6, 1838. 
 
 SIR, In compliance with your letter of the 30th of July last, requesting a full report of the 
 proceedings that have taken place in relation to the claims of the United States against the Com- 
 monwealth Bank, the District Attorney has the honor to submit the foHowiirg 
 
 REPORT: 
 
 On January 22, 1838, the District Attorney received from the Solicitor of the Treasury, a 
 Treasury Transcript stating a balance due to the United States from the Commonwealth Bank, of 
 $51,749 90; also a copy of a bond executed by the officers of that Bank and other persons as- 
 sureties, dated February 14. 1837, with instructions to institute legal proceedings. 
 
 An action to recover the sum aforesaid was commenced against the Bank and sureties on the 
 same day. 
 
 As there was, in the opinion of the District Attorney, some doubt whether an action ctnild be 
 sustained against the Bank on that bond, an action for money had and received was brought 
 against the Bank at the same time. The damages were laid in each case at 75,000. No property 
 was attached by the Marshal in either case ; but, as security for this claim, the officers of the 
 Bank delivered to (he District Attorney certain promissory notes described in his receipt, a copy oi' 
 which (a) accompanies this report. 
 
 On the 30th of January, 1838, a letter Was received from the Solicitor, enclosing a communication 
 from the Secretary of the Treasury, under date of January 24th, stating, that " besides the balance 
 standing against the Commonwealth Bank, upon the books of the Treasurer, it is understood that 
 considerable sums of public money which were placed there by collecting and disbursing officers, 
 still remain in deposit with the Bank. As these balances are included in the liabilities of the 
 Bank to the United States, and are covered by the bond executed in its behalf, I have to request 
 that the District Attorney may be instructed to keep them in view in any course he may adopt for 
 the protection of the interest of the United States. Their amount can all be ascertained at Boston." 
 The books of the Bank were immediately examined, and the amount due to the United States 
 ascertained. On the same day actions were commenced against the several sureties on the bond 
 of February 14, 1837. The damages in each case were stated at $400,000. Endorsed, "Attach 
 sufficient. J. Mills, District Attorney." The Marshal returned on the writ against Samuel S. Lewis, 
 one of the sureties, as follows, to wit : "United States of America, Mass. District, Boston, February 
 2, 1838. By virtue of this writ, I have attached certain promissory notes and demands, turned 
 out to me by Samuel S. Lewis, the within named defendant, and David Henshaw, as security ta 
 satisfy any judgment or judgments which may be recovered in favor of the United States, on this 
 writ, or either or all of the following writs in my hands for service ; severally against John Hen- 
 shaw. Elisha Parks, F. S. Carruth, Otis Rich, 'William Freeman, Hall J. How, Oliver Fletcher 
 fcnd Adams Bailey. Said United States are plaintiffs in each of said suits, and the writ in each of 
 them bears date January 30th, 1838, and is returnable to the U. S, District Court, to "be holden at 
 Boston on the third Tuesday of March, 1838. Jonas L. Sibley, Marshal/' A similar return was 
 made on the other writs. It is understood that the Marshal has in his possession a list of the 
 securities referred to in the foregoing return, but he is now absent, and as it is with his private 
 papers, a copy cannot be obtained till he returns. [A copy subsequently obtained is appended to 
 this report, (d)] 
 
 On the 13th of February, 1838, a letter was received from the Solicitor, dated February 9th, 
 enclosing a certified copv of the contract of the Bank with the Secretary of the Treasury, dated 
 July 15, 1S36. On the 2"3d of February, a suit was brought against the Bank on this contract. 
 The Marshal returned on this writ that " he had attached all the lands belonging to the Bank, within 
 his precincts." 
 
 These actions were all entered at the March term of the District Court, and all stand con- 
 tinued, except the one against the Bank for money had and received, commenced on the 22d of 
 January. 
 
 The securities attached on the writs against the sureties, as stated in the return on the writ
 
 n 
 
 against Lewis, were never under the control or management of the District Attorney. They never 
 Ibelonged to the United States. They were transferred by the Bank to the sureties as collateral 
 security to indemnify them for any judgment that might .be rendered against them as sureties to 
 the Bank. The sureties proposed to place these claims in the hands of the Marshal to satisfy any 
 judgment that might be rendered against them in those actions. As several of the sureties had 
 failed, and as -real estate {except about 10^000 dollars) was the only property of the solvent sureties 
 that could 'be attached, it was considered to be the interest of the United States to take a transfer 
 of these promissory notes. But it will be recollected that the Marshal did not hold these securities 
 to respond any judgment against the Bank, but such only as may be recovered on the suits now 
 pending against them, and ia which they contest their liability. Of these securities thus trans- 
 ferred to the Marshal and for that specific purpose, -were notes of the Warren Association, amount- 
 ing to 160,000, all of which were oa time. The former letters of the District Attorney have 
 acquainted the .Solicitor of the Treasury with all the negotiations respecting the manner of paying 
 these notes. The only proposition in writing ever submitted to the District Attorney was trans- 
 mitted to the Solicitor of the Treasury on the 25th of April, 1838. After the receipt of the So- 
 licitor's letter, of May 4th, an agreement was entered into, of which the accompanying paper (b) 
 is a copy. 
 
 It will appear by the copy of the record, in the case of the United States against the Bank, (c) 
 that the writ was amended aad judgment rendered by consent for $325,517 55. By the agreement, 
 judgment was to be rendered for $345,517 55. After the agreement was executed, it was recol- 
 lected that there was an attachment of land on the writ, dated February 23d, and, as there might 
 be subsequent attachments of the same land on suits pending in the State courts, the balance was 
 left for the judgment in the action of the 23d of February. 
 
 A copy of the execution, with the doings of the appraisers and return of the Marshal, is herewith 
 transmitted. The document is marked (4). The letter of the District Attorney, dated July 28, 
 1838, states all of the facts (so far as they are known to him) in regard to the appointment of 
 appraisers and the proceedings at the time of the levy. To that statement he has nothing to add 
 or diminish. It seems, however, that the point on which the Solicitor of the Treasury asks par- 
 ticular explanation, is stated in the following extract from his ktter, bearing date July 30th, 1838. 
 " The allegations made to the Secretary of the Treasury, and from respectable sources, were, that 
 under color of this legal process, land which was lately bought for two and a quarter cents a. foot, 
 and would new -bring but one and a half cents a foot, was set off to the United States at fifteen 
 cents a foot thus, in fact, crediting the Judgment of the United States with $166,000, when the 
 land was worth but $10,000 ; that the legal officers of the United States stood by and acquiesced 
 in this appraisement ; and that after it was made they surrendered valuable personal securities 
 without their being legally satisfied. 1 ' The District Attorney does not know the costs of this land 
 to the Association, nor does he think it material to enquire, as they were purchased several years 
 since, and as there have been great improvements and great increase of population in that part of 
 the city since the original purchase. " And would not nmv bring but one and a half cents afoot." This 
 allegation is flatly denied, and the "respectable" person who made the communication to the 
 Secretary of the Treasury, must plead gross ignorance upon the subject, to screen himself from the 
 'charge of malicious falsehood. " That the kgal officers of the United States stood by and acquiesced in 
 this appraisement." If by this it is insinuated that the officers of the United States acquiesced in 
 any fraudulent act, it can hardly be expected that they will criminate themselves and plead guilty 
 to the charge. If the proceedings were legal and fair, there was nothing to which an objection 
 could be made. On this point, the District Attorney will go no further than to repeat that he 
 selected two of the appraisers, men competent to discharge the duty to which they were appointed, 
 well acquainted with the value of such lands, and whose character for honesty and integrity will 
 not be questioned even by the " respectable " .informant of the Secretary of the Treasury. " They 
 surrendered valuable personal securities Without their being legally satisfied." This brings up again the 
 Question of fraud. If the transaction is fraudulent the proceedings are void and not binding on 
 the United States. But if the lands were fairly and legally appraised at $166,437 90, why should 
 not securities to that amount be surrendered ? It could not be supposed that the United States 
 would hold the land and securities too. After the levy was completed, the District Attorney had 
 no hesitation in directing the Marshal to give up, to be cancelled, the notes of the. Association to 
 that amount. Nor had he any suspicion that tire legality of the act was any more to be questioned 
 than it would be had the payment been made in cash. He has never entertained or stated any 
 proposition or arrangement by way of compromise or relinquishment of any existing liabilities, 
 without legal satisfaction ; nor did he permit the notes of the Association to be surrendered, till 
 their full amount, of principle and interest, had been legally satisfied. . , 
 
 From the best information the District Attorney has upon the subject, he considers the real 
 value of the land, set off on the execution, to be not less than twelve and a half cents a foot, but 
 be knows it is the opinion of others, who are good judges, that the appraisement is. hot too high. 
 He has not heard but a single individual (William Wright) who knew anything qf the lands, estt- 
 tnate them at less than twelve and a half cents a foot. There is not a single circumstance known 
 to the District Attorney that will authorize an application to the court to set aside the levy. There 
 was no mistake or misrepresentation in relation to the lands. The appraisers had the plan before 
 ihem, and they entered upon and viewed the several lots. , 
 
 It appears by the Marshal's return .on the execution that $iC9,052 49 have been paid, leaving 
 an unsatisfied balance of $156,483 97. The damages to be rendered in the other case will not 
 vary much from $23,000. The cash credit on the execution, was by a payment of Mr. Henshaw's
 
 44 
 
 on one of his notes mentioned in the receipt. In the absence of the Marshal, the value of the 
 securities now in his hands cannot be stated with accuracy. Their value is estimated at $105,000 
 
 Land under attachment "at 15,000 
 
 Balance of notes now in the hands of the District Attorney, 37,420 
 
 $ 157,420 
 
 If this estimate is correct, and the assets in the hands of the Marshal, are, when collected, applied 
 on the execution, it will leave a balance of $22,063 97, besides the balance of interest. 
 
 If the actions against the sureties on the bond of February 14, 1837, are sustained, and they held 
 liable for the whole debt due from the Bank, the United States will, unquestionably, be paid in full. 
 If, however, the sureties should be discharged, a process will be immediately instituted to retain 
 for the United States, the securities now held by the Marshal. From these, and from other debtors 
 to the Bank, included in the bill in Equity, it is confidently believed that enough will be collected 
 to discharge the debt due the United States. 
 
 It will be seen that two of the notes in the hands of the District Attorney are payable in a few 
 days, and the other, for 86000, not till October, 1839. Mr. Henshaw will ask an indulgence for a 
 part of the notes payable on the 12th. Would it not be expedient to propose to him an equation 
 of payments, by which the whole shall be paid before the first of December next ? No opinion is 
 expressed as to the time when the securities held by the Marshal will be paid. It is hoped there 
 will be but a small balance, if any, due to the United States, on the first of January next. 
 
 (Signed,) JOHN MILLS, U. S. District Attorney. 
 
 To the Solicitor of the Treasury. 
 
 Note (I of Document D. 
 
 Eeceipt for Collateral deposited with the District Attorney. 
 
 Received of Charles Hood, Cashier of the Commonwealth Bank, a note signed by John Henshaw, 
 as principal, Charles Henshaw and David, sureties, dated January 10, 1838, payable in seven 
 months, for $21,420. A note signed by Henshaw, "Ward & Co., payable to David Henshaw, 
 and by him endorsed, dated Oct. 20, 1837, for $6000, payable in 24 months from date, with interest. 
 Also a note signed by Hall J. How, for the late firm of Hall and Jones, dated January 9, 1838, for 
 $15,000, payable to the late firm of Henshaw <te Co., and by them endorsed, payable in seven 
 months, which notes are also endorsed by the said Cashier. The notes aforesaid I am to hold as 
 security for a balance due from the Commonwealth Bank to the United States, of 851,749 90, as 
 appears by the Treasury Transcript, but is only $39,636 93, as appears by the books of the Bank. 
 
 JOHN MILLS, District Attorney. 
 
 January 22, 1838. 
 
 Note & of Document D. 
 
 Massachusetts, Boston, May 11, 1838. United States District Court. 
 The United States, vs. Commonwealth Bank, No. 18. 
 
 AN AGREEMENT OF TWO PARTS. 
 
 In the above entitled action it is agreed as follows, viz. : 
 
 1. The Plaintiffs' damages alleged in the writ in said action shall be increased, and be stated to 
 be three hundred and fifty thousand dollars. 
 
 2. Judgment shall be rendered in said action in favor of the Plaintiffs, for the sum of three hun- 
 dred and forty-five thousand five hundred and seventeen dollars fifty-five cents, being the amount 
 specified in the Plaintiffs' bill of particulars, filed in said action. Execution shall issue for that sum 
 and the costs of said suit without delay. 
 
 3. Jonas L. Sibley, Esq., the Marshal of the United States, shall levy said execution on such 
 lands as the Warren Association or its Trustees shall convey to said Bank. In making said levy, 
 no part of said land shall be sold by the Marshal, but the same shall be set off on said execution 
 by appraisement. 
 
 4. The amount at which said lands shall be appraised as aforesaid, shall be appropriated to the 
 relief of the sureties of said Bank, in a bond made to said United States in the penal sum of five 
 hundred thousand dollars, by John K. Simpson as President, and Charles Hood as Cashier, in 
 behalf of said Bank, and by Adams Bailey and others as sureties, bearing date February 14, 1837. 
 And said lands are hereby appropriated, at said appraised value thereof, (so far as said appraise- 
 ment may extend,) to the relief of said sureties, and in satisfaction (to the extent aforesaid) of the 
 amounts for which they may be liable on said bond. 
 
 5. As the said Marshal holds promissory notes and other written promises made by or on behalf of 
 said Warren Association, as collateral security for the protection of said sureties, which notes and 
 promises were recently held by the said Bank, and are to be paid by said lands so far as they may 
 be sufficient, at said appraisement ; it is agreed that the said Marshal shall continue to hold the 
 same till the completion of said levy ; and that immediately after its completion, said notes and
 
 45 
 
 promises, to the amount of said appraisement shall be surrendered by said Marshal to John Pick- 
 ering. Esq., or either of the Trustees of said Association. 
 
 6. The Register of Deeds for the county of Suffolk, shall certify in writing that the title of the 
 lands levied upon as aforesaid is good. 
 
 7. The sureties on the said bond and other subscribers hereto, subscribe this agreement in token 
 of their assent to it ; this agreement having been made by the request of said sureties so far as it 
 regards said application. Neither of said sureties hereby waives any defence by admission or 
 otherwise, which he would have had if this agreement had not been made, but will make no objec- 
 tion founded merely on the fact of this arrangement having been made between the Plaintiffs and 
 said Bank. 
 
 8. The said U. States by their Attorney, and said Bank by its President, subscribe this instru- 
 ment and one other of like tenor and date. 
 
 WM. FREEMAN, President pro. tern., for Commonwealth Bank. 
 
 CHARLES HOOD. 
 
 SAMUEL S. LEWIS. 
 
 WM. FREEMAN. 
 
 ELISHA PARKS. 
 
 F. S. CARRUTH. 
 
 OLIVER FLETCHER. 
 
 A. BAILEY. 
 
 JOHN HENSHAW. 
 
 HALL J. HOW. 
 
 OTIS RICH. 
 
 JOHN MILLS, U. S. District Attorney. 
 
 Note C of Document D. 
 
 Judgment of the U. S. Court) vs. the Bank. 
 
 UNITED STATES OF AMERICA. 
 Massachusetts District, ss. 
 
 AT a District Court of the U. States, begun and holden at Boston, within and for the District of 
 Massachusetts, on the third Tuesday (being the nineteenth day) of March, in the year of our Lord 
 one thousand eight hundred and thirty-eight. Before the Honorable John Davis, Judge. 
 
 The United States of America, Plaintiffs, versus the President, Directors and Company of the Com- 
 monwealth Bank, in the city of Boston, a corporation by the laws of the State of Massachusetts. 
 Defendants. In a plea of the case, for that the said Commonwealth Bank, at said Boston, to wit, 
 on the day of the date of this writ, being indebted to the said United States in the sum of four hun- 
 dred thousand dollars, for so much money then before that time, by the said Commonwealth Bank, 
 of the said United States, to their use had and received, in consideration thereof promised the said 
 United States to pay them the said sum on demand ; yet the said Commonwealth Bank, although 
 often required, has not paid to the said United States the said sum ; but hitherto altogether has and 
 still does refuse to pay the same. To the damage of the said United States, as they say, the sum 
 of three hundred and fifty thousand dollars. 
 
 This action was entered at the present term of this Court, when and where the Marshal returned 
 that he attached a chip, the property of the Commonwealth Bank, and gave in hand to Charles Hood, 
 Esq., Cashier of said Bank, a true and attested copy of the said writ, for their appearance at 
 Court. 
 
 And now the parties appear, and upon motion of the Defendants' counsel, it is ordered that the 
 Plaintiffs file a Bill of Particulars ; whereupon the following Bill of Particulars is filed : 
 The Commonwealth Bank to the U. States, Dr., January 12, 1838. 
 
 Balance of deposits due to the Pension Department, $152,68421 
 
 Treasurer of the United States, 39,636 93 
 
 Post Office Department, 7,806 99 
 
 D. S. Townsend, Army Paymaster, , 1.167 32 
 
 Collector of the Port of Boston, 65,91177 
 
 Commissioners for building Custom House, 71,555 38 
 
 H. H. Craig, Master of Ordnance, 534 
 
 $338,797 9 1 
 Interest to llth May, 1838, 6,719 61 
 
 $345,517 55 
 
 And afterwards the Defendants, although solemnly called to come into Court, do not appear, but 
 make default ; whereupon, by consent of parties, judgment is entered for the Plaintiffs in the sum 
 of three hundred and twenty-five thousand, five hundred and seventeen dollars, fifty-five cents. It 
 is therefore considered by the Court that the said United States of America recover against the said 
 President, Directors and Company of the Commonwealth Bank, the sum of three hundred and 
 twenty-five thousand, five hundred and seventeen dollars, fifty-five cents, damage, and costs of suit 
 taxed at seventeen dollars and ninety -one cents. 
 
 A true copy, 
 
 Attest: FRANCIS BASSE TT, Clerk.
 
 46 
 
 do. 
 do. 
 do. 
 do. 
 do. 
 
 Note fl ot Document 1>. 
 
 Collateral dtlivered to U. S. Marshal to secure sureties. 
 
 Association, 
 
 do 
 do 
 do 
 do 
 do 
 
 SCHEDULE. 
 
 . date Nov. 28, 1837, 8 mo. 
 
 29, 
 30, 
 
 " 27, 
 Dec. 1, 
 
 " 2, 
 
 10 
 12 
 7 
 
 14 
 16 
 
 Hall J. How, , Sept. 14th, 1835, 6 mo. 
 
 3. & H. J. How & Co., by Hall J. How, 
 
 and How & Jones, surety, ... 
 Memorandum check of New England 
 
 May 26th, 1834. 6 mo. . . 
 Dec. 24th, 1836, on demand, 
 
 Glass Company, 
 
 Memorandum check of same Co., ..." Feb. 23d, 1836, . " . 
 
 Promissory note, Wm. Parmenter, Jttne 13, 1837, due Aug. 1st, 1838, 
 
 Promissory note of Hall J. How, Jan. 15, 1838, on demand, 
 
 do. " of John Henshaw, as principal, and David 
 
 Henshaw and Charles Henshaw, as sureties, dated 
 
 January 10, 1838, dire in eight months after date, 
 
 $25,000 00 
 25,000 00 
 25,000 00 
 25,000 00 
 30,000 00 
 30,000 00 
 
 8160,000 00 
 11,500 00 
 
 7,500 00 
 
 30,000 00 
 
 14,000 00 
 10,000 00 
 33,495 00 
 
 13,531 12 
 $280,026 12 
 
 Boston, Feb. 2d, 1838. 
 
 The above is a schedule of notes and demands delivered to me by Samnel S. Lewis, and David 
 Henshaw, as security to satisfy any judgments which may be recovered in favor of the U. States, 
 6n writs now in my hands for service against the following persons, viz. : Samuel S. Lewis, John 
 Henshaw, Elisha Parks, Francis S. Carruth, Otis Rich, Wm. Freeman, Hall J. How. Oliver 
 Fletcher and Adams Bailey. Said United States is Plaintiff in each of said suits, and the writs in 
 each of them bear date January 3ffth, 1838, and i? returnable, to the U. States District Court, next 
 to" be hoklen at said Boston, within and for the District of Massachusetts, on the third Tuesday 
 of iVfarch next. The balance of said promissory paper, and all collections which may be made 
 thereon, remaining after payment of such amounts as may be .received as aforesaid in said suits 
 against said several persons, any of ei'ther of them, or after a decision in their favor in said suits, 
 sliall be returned to said Samuel S. Lewis and David Henshaw, the survivor of them, their or his 
 order. 
 
 (Signed,) JONAS L. SIBLEY, U. S. Marshal. 
 
 Boston, May 19, 1838. 
 JONAS L. SIBLEY, Marshal, &c. 
 
 SIR, Please deliver to John Pickering, Esq., Trustee of the Warren Association, the above 
 mentioned promissory notes against said Association. 
 
 rSigned.) JOHN MILLS, by 
 E. SMITH, JUN. 
 
 Boston, May 19, 1838. 
 
 Received of Jonas L. Sibley, Marshal, the aforementioned notes, for the Warren Association. 
 
 (Signed,) JOHN PICKERING, Trustee. 
 
 Marshal's Office, Boston, Sept. 14, 1838. 
 
 The memorandum checks, against the New England Glass Company, mentioned in the schedule, 
 it was ascertained, after they came into iny hands, were of no value, and they were taken back by 
 Messrs. Henshaw and Lewis, and a judgment against said N. E. Glass Company, for 36,970 12, 
 tots assigned to me in lieu thereof. A copy of said assignments is hereunto annexed. 
 
 J. L. SIBLEY, Marshal.
 
 47 
 E. 
 
 ^...ges of William Wri^c. 
 
 Boston, August 3, 1838. 
 
 SIR, Upon the first intimation that measures were taking to compromise the demand which the 
 United States held against the Warren Association, I addressed a letter to Mr. Everett, then at 
 Washington, and another, I think, to Mr. Woodbury, expressing my apprehension that such com 
 promise would end in an imposition upon government, and a reproach upon the administration. 
 In Mr. Everett's reply I had assurances that no manner of compromise had been authorized by the 
 Department at Washington, which led me to believe that the information which I had received 
 was without foundation. But it soon proved otherwise, by a consummation of the plan, and the 
 abuses apprehended have been carried into effect to the fullest extent. 
 
 It seems that the Commonwealth Bank had transferred to the United States, as collateral security, 
 certain notes of the Warren Association, which that Association were desirous of paying in land 
 But as agents of government have no power to change the ordinary mode of payment by voluntary 
 agreement, and can only take lands of delinquent debtors by legal process, a suit was resorted to 
 not however, against the Association, as it should have been, but against the Commonwealth 
 Bank, as principal debtor, for which these notes were held as security ; and the suit thus com 
 menced was instituted with an apparent understanding at the time, or subsequently made between 
 the agents of government and the Bank and the Association, that certain lands should be conveyed 
 from the Association to the Bank, to be liable upon judgment and execution, and to be taken and sel 
 off, by appraisement, to the United States, and that the land thus to be conveyed, was to be valued 
 by certain men agreed upon, who were to determine the quantity which should be received in con 
 sideration of these notes, amounting, principal and interest, to the sum of $164,533 33. 
 
 In pursuance of this understanding, the action against the Bank was defaulted on the 17th day of 
 May last. Execution was then issued and levied upon the lands which had been simultaneously 
 conveyed by the Association to the Bank for that purpose, and the former estimated value was 
 then repeated, in order that the proceedings might appear to have the sanction of law. The notes 
 were then given up to the Association, and the same lands conveyed by deed of the Bank, to the 
 United States, which was executed on the 19th day of the same month. 
 
 By this extraordinary procedure, the government have acquired about 25 acres of unsaleable and 
 almost useless lands, for which has been allowed the above sum of $164,533 33, affording a profi' 
 to the Warren Association, of something like one hundred and forty thousand dollars over its cost, 
 although bought at the top of speculation, some three or four years ago, at a price far above its real 
 value then or now. Its intrinsic worth at this time can hardly be more than ten thousand dollars, 
 upon any reasonable calculation whatever. 
 
 The securities given up in consideration of these lands, so far a.s responsibility was concerned, 
 were good, and might be' relied upon with as much safety as though the same were against the 
 Corporation of Boston. 
 
 It seems, by every circumstance connected with this transaction, in whatever way it is viewed 
 that the public interests have been entirely overlooked, and official trusts prostituted for the benefit 
 of a few 'unprincipled and undeserving men,.. 
 
 In looking at the legal steps pursued in this case, we are led to inquire why suit was not com 
 menced directly against the Association upon its notes, when it was certain that a judgment thereor* 
 would not only subject these same lands to, th,e operations of the law, but would subject also th< 
 personal property, and even the personal liberty of responsible men ; and would subject, in liki 
 manner, the good and valuable lands of the Association, as well a* the bad and worthless, if land: 
 at all were necessary to the recovery of this debt. 
 
 The reasons for omitting this course, we are left to infer from circumstances. Probably there way 
 fear that the government would recover too much. The anticipation of $140,000 profi.t on a 
 bad bargain might have had some influence, for it was dearly seen that no necessity could exist 
 for levying an execution against the members of this Association, upon these or any other lands 
 for the abundance of other means would preclude the possibility of such necessity. 
 
 In the collection, of government dues, it is presumed to be the duty of agents to employ against 
 delinquent debtors the best remedies which the laws afford. This would shut out all discretion K 
 banter with the adverse party in manner common in private transactions. If this view is right, 
 how could, Mr. Mills, or any other agent of the government, negotiate and bargain with the Warren 
 Association to give up their notes for $164,533 33, for an indefinite quantity of land to be conveyed 
 to the Bank ; submitting that quantity to certain men, authorized to say how much was equivalent 
 to this debt ? Why were lands conveyed tQ the Bank? Why not to the United States direct ? What 
 could be the difference in the end ? Could this temporary possession by the Bank, holding for a time 
 barely sufficient for the mock ceremony of a second valuation by the same men, produce a different 
 or better result? Certainly it could not; for although these appraisers might have changed their 
 views after the first valuation,, and put down the price upon th,e secoA<t, vet ll would be the same 
 thing to the government, for the. first valuation constituted the payment of the notes, which of 
 course were given up, and that amount of the debt of the Bank was cancelled. 
 
 In whatever way we look at this thing, we see nothing but a departure from duty by the agents 
 of the government to promote the interests of the adverse party. The whole proceedings from be- 
 ginning show this. fact. The round-about course of suing the Bank conveying to it the lands of 
 '.he Association to be levied upon and appraised was wholly unnecessary for any other purpose.
 
 It clearly was a device to accomplish an end upon some plausible ground of justification. But tne 
 very foundation upon which such justification was intended to be established, fails them ; for the 
 laws of the Commonwealth recognize no such procedure as an appraisement of lands taken by 
 execution against a Bank, as in individual cases. On the contrary, they expressly provide that 
 creditors may buy up the real estate of banking institutions and sell the same at public auction ; 
 the agents of government therefore, if bound to employ the best remedies, were bound to sell and 
 not to appraise, and the appraisement neither time can have any justification in law, for it was all 
 a voluntary matter, wherein the best remedies have been entirely abandoned. 
 
 There is something unnatural in the selection of opposition men to judge in a matter wherein 
 the United States is a part}', particularly as the opposition men constitute the responsible portion 
 of the other side. This together with the hurry the restive and uneasy disposition to bring this 
 matter to an end, and corroborating circumstances to show that Messrs. Mills, Sibley, or whom 
 these agents be, had combined with the adverse party to discharge these liabilities, for the smallest 
 consideration practicable with any hope of justification. 
 
 Whether Mr. Mills is interested in the lands of the Association, I know not ; but the Marshal, 
 Mr. Sibley, is, and is one of the trustees of the company to receive and make conveyances, and is 
 party to the deed of conveyance of these very lands. 
 
 I have confined these remarks to circumstances connected with the management of one branch 
 only of the affairs of the Commonwealth Bank. But there is another, equally fruitful, in view of 
 which I may speak another day. 
 
 The effect which such conduct must unavoidably have on the administration, is a matter of 
 serious concern, and ought not to be overlooked. Transactions like these can never be concealed 
 and kept out of sight and unless the executive will rid the administration of such agents, the 
 democratic party must go down. 
 
 Already is it apprehended that the history of this transaction will be distributed through Maine 
 upon the eve of the approaching election ; if so. it cannot fail to produce an injurious effect, and 
 may perhaps defeat that success now so strongly anticipated. Nothing is more evident than that 
 the existence of the democratic party and the success of its principles depend entirely on the 
 character of the national officers variously scattered over the country. Vice and immorality on the 
 part of such officers should never be tolerated for a day should be regarded in all cases as dis- 
 qualification and cause of prompt removal. But this branch of executive duty seems to be 
 entirely neglected, so far at least as applies to this quarter of the country. As evidence of this 
 fact, we see among us individuals continuing to enjoy the executive favor, whose principles and 
 morals are of the most questionable kind. And as to some of them, they are implicated in offences 
 which are criminal ; and punishable by confinement at hard labor in the state penitentiary. 
 
 These things the President is supposed to know, for repeated statements and complaints have 
 been made to him ; still he tolerates this disgrace upon his administration, rather than apply the 
 proper corrective, which no one else can do. 
 
 By this indulgence, the party suffers, the administration suffers, and will continue to suffer to 
 the end of this strange and unaccountable forbearance. 
 
 If the President misconceives the true state of things here, and sees not the necessity of purging 
 the ranks of the office-holders in this city, in preservation of his own official character, if nothing 
 more, it shows a want of faith in the credibility of friends who have endeavored to serve both him 
 and the cause by faithfully representing the truth. But it is always in his power to ascertain facts 
 by investigation : this would test the veracity of complainants as well as the conduct of those com- 
 plained against. But even this has never been attended to on the part of the Executive. 
 
 Some of these remarks perhaps would be more appropriately addressed to the President than 
 you. But they are naturally Jfcsociated with the main object of this communication, which is 
 more appropriately addressed to you as the officer of government from whom the immediate agents 
 in this transaction are supposed to have received their instructions. How far these agents may 
 be able to entrench themselves behind such instructions, I know not. It is probable, however, if 
 any authority has been given, it is rather a. permission than instruction, given under a misappre- 
 hension of the case, and elicited perhaps for a corrupt end, by incorrect and improper statements. 
 Such a course is in perfect keeping with the characters of certain persons here, who have con- 
 troled the local interests of the government in this quarter for years. 
 
 Knowing all these things, I cannot believe in any foreign agency, in the planning of this stu- 
 pendous cheat. It is earnestly hoped, therefore, for the cause of justice, that prompt and decided 
 measures will be taken to exonerate others from imputation by a discharge from the government 
 employ, those who are the real authors of it. 
 
 With much respect, your obedient servant, 
 
 WILLIAM WRIGHT. 
 
 To HON. II. D. GIM-IN, 
 Solicitor of the Tnosury. 
 
 V. 
 
 William Wright to Mr. Gilpin. 
 
 Boston, August 15, 1838. 
 
 Si R) I have received your letter of the 10th instant. To answer the enquiry you make, whether 
 my communication of the 3d was intended as official. I have to say it was. As to the remarks con-
 
 cerning the President, I have only to say that I regret exceedingly that there should be any occasion for 
 them. My views in future upon the same subject will be addressed to the President himself. 
 
 I am glad to hear that you intend to go into a thorough investigation of this affair of the land. 
 But I do not understand, whether it has reference to the dismissal of agents for improper conduct, 
 or whether only to redress the wrongs done the United States. Perhaps it is both. But in pur- 
 suing your intention, it is necessary that you guard against committing this labor to wrong hands, 
 who will strive to whitewash the matter, rather than investigate it. 
 
 Respectfully, your obedient servant, 
 
 WILLIAM WRIGHT. 
 HON. H. D. GILPIN, 
 
 Solicitor of the Treasury. 
 
 G, page 11&2J. 
 
 Reply of Mr. Mills to the charges of William Wright. 
 
 United States' District Attorney's Office, Boston, Sept. 15, 1838. 
 
 SIR, Your letter of the 25th August, enclosing an extract of a letter from Mr. William Wright, 
 was received some days since. The letter from Mr. Wright, as you justly observe, censures 
 so strongly the officer of the United States, as to call for a full explanation and reply to its 
 allegations. 
 
 Mr. Wright commences his letter by stating that the notes of the Warren Association were trans- 
 ferred to the United States by the Bank. In this he is incorrect ; the notes were never transferred 
 to the United States. 
 
 He complains that a suit was brought against the Bank and not against the Association, as it 
 ought to have been. It may possibly be a satisfactory answer to this objection, that the United 
 States had no claim against the Association, and that the notes referred to were not payable for 
 several months. 
 
 The men selected as appraisers, says Mr. Wright, were to determine the quantity of land to be 
 conveyed by the Association to the Bank in consideration of these notes, and were then to go 
 through the "mock ceremony of a second valuation." This is stated as a fact, not an inference. 
 In another part of his letter, he says "the first valuation constituted the payment of the notes ;" 
 coupling that declaration with another, equally erroneous, that the notes were then given up. It 
 is to be regretted that any man in this community should make a charge of this kind, injurious to 
 the character of the agent of the United States, if not of the appraisers, and which is destitute of 
 the least particle of truth. 
 
 Had Mr. Wright been as anxious to obtain correct information on this subject as he was to com- 
 municate his own conjectures, inferences and suspicions to the Department, he could have learnt 
 from the appraisers that they made but one appraisal of the lands ; that they knew nothing of the 
 valuation made at the time of the conveyance ; and that that valuation therefore could not have 
 influenced their judgment. I could have assured Mr. Wright, that I knew nothing of the valuation 
 he refers to, and that the notes were not given up till the completion of the levy. 
 
 The next specification in Mr. Wright's letter is that the securities given up were good, and 
 might be relied on with as much safety as though the same were against the corporation of Boston. 
 If tins allegation is true, and it were known to me that these securities were of the value he has 
 stated, or if the evidence of that could have been obtained by the exercise of due diligence, I agree 
 that so far as respects myself, his censure is justly merited. And upon this point I do not wish to 
 rely upon the strong comparison he has made, but will suppose he only intended to say that the 
 securities were good, and that they would at that time have passed in the money-market, in this 
 city, with the endorsement of the Commonwealth Bank, for as much value as the notes of any well- 
 known responsible individual, with the same endorsement and running the same time. Mr. 
 Wright states no facts in support of his declaration, and I shall presume that he has no particular 
 information on this subject more than is known to others. When the Commonwealth Bank failed, 
 the Warren Association was owing that institution a sum not varying much from $250,000, and 
 for which the Bank had no security except notes signed by the Treasurer of the Association. I feel 
 confident that the brokers and business men in this city will sustain me in the assertion that the 
 anticipated loss upon this large debt had more effect in depressing the bills of the Bank than all 
 other causes combined. Will Mr. Wright, or any intelligent man, pretend that anything occurred, 
 between the failure of the Bank and the 17th of May, that enhanced the value of those notes ? The 
 truth is the reverse of this. At the time the legislative committee made their investigation, I was 
 of opinion that the associates were personally responsible for the notes. But facts were soon after 
 disclosed, or came to my knowledge, that very much diminished my confidence in that opinion. As 
 a general principle, all the members of a joint stock association are personally responsible for the 
 debts of the company. But in this case I was well satified, on examination, that the officers of the 
 Association were prohibited from borrowing money, or incurring debts beyond the sum of thirty 
 thousand dollars. Such restriction, it is not supposed, would avail to defeat the claim of a creditor 
 who had no notice of it. But all these notes were taken by the Commonwealth Bank with full 
 notice that the Treasurer of the Association had no authority to contract the debt. I do not pretend 
 that a recovery against the associates was entirely hopeless, but I do say that it was so very doubt- 
 ful that no prudent man, standing in the same relation, would have sought his remedy by a law- 
 suit if he could receive his debt in lands at an appraisal. Aside from this, there were many argent 
 7
 
 50 
 
 considerations in favor of an arrangement by which that large claim should be cancelled. These 
 notes it will be recollected were all on time, and some of them had more than a year to run : the 
 United States not holding them could not sue them when due, nor could they reach them by a 
 trustee process, as they were negotiable paper. I had strong fears also that other creditors of the 
 Bank would enter into this arrangement, which they could do by indemnifying the sureties to the 
 amount of these notes, or by the creditors and Association assuming the risk of a recovery against 
 the sureties. It may be said if this were done that it would of course diminish the debts of the 
 Bank and leave the balance of the assets for the other creditors. The answer to this is that the Bank 
 is insolvent probably to the amount of one hundred and fifty thousand dollars. If, therefore, the 
 United States should fail in the actions against the sureties on the bond of February 14, 1837, and 
 the notes of the Association or the avails of these notes should have passed into the hands of other 
 creditors of the Bank, the United States would, unquestionably, lose some considerable portion of 
 their debt. I was from the first very anxious to get possession for the United States of as many 
 securities from the Bank as possible. It was with difficulty I prevailed upon the officers qf the 
 Bank to transfer the notes of Henshaw and others to secure the claim standing to the credit of the 
 Treasurer of the United States, and which first came into my hands for collection. But the only 
 way in which I could obtain an absolute lien upon the notes of the Warren Association was by the 
 agreement entered into on the llth of May. By effecting this arrangement, these securities or their 
 proceeds have been applied upon the debt of the Bank. These were the principal reasons that led 
 me to recommend the course adopted. The matter was of considerable importance ; it was not 
 hastily or inconsiderately decided, but received a careful and repeated examination. I was aware, 
 at the time I gave this opinion, of the state of feeling in regard to the Bank and Association, and 
 had a presentiment that my conduct would be censured, though it now comes from a quarter not 
 then anticipated. But being satisfied that under all the circumstances of the case the arrangement 
 would be beneficial to the United States, and that the proceedings to carry it into effect were legal, 
 I had no hesitation in advising its adoption. 
 
 In collecting the government dues, says Mr. Wright, it is presumed to be the duty of agents to 
 employ against delinquent debtors the best remedy which the laws afford. This principle is 
 unquestionably correct, and it is one upon which I profess to have acted. " This would shut out 
 all discretion to banter with the adverse party in manner common in private transactions." If by 
 this, Mr. Wright means that the Attorney of the United States has nothing more to do than to com- 
 mence an action and give his attention to it in Court, and can make no arrangement common in 
 private transactions, to render the judgment productive, his views, in regard to the extent of my 
 official duties, are very different from my own. I am yet to learn that a different rule is prescribed 
 in a case in which the United States are parties, than would be were an individual my client. In 
 either case, if the interest of the principal required that an arrangement should be made "with the 
 adverse party," even to place property in a condition that it could be legally attached or levied 
 upon by execution, it would in my opinion be the duty of the Attorney to make the arrangement. 
 Had I acted upon the principle that I was shut out from the exercise of " all discretion in manner 
 common in private transactions," I should have been spared much labor and anxiety in this busi- 
 ness, and should probably have escaped the censure of Mr. Wright, and reprehension from any 
 other quarter. 
 
 Mr. Wright next inquires why were lands conveyed to the Bank? Why not to the United 
 States direct ? The reason is that the United States had no claim against the Association, and if 
 they had, there was no authority for taking a conveyance. They had an execution against the 
 Bank, and the law authorized the levy of it upon the lands of the Bank. 
 
 On this point Mr. Wright alleges that the laws of this District recognize no such procedure as an 
 appraisement of lands taken by execution against a Bank. 
 
 By the general law in this District, on taking lauds to satisfy executions for debt, " all the real 
 estate of a debtor may be taken in execution for his debt." By another act, many years subsequent 
 to this, it was enacted " that the lands of any Bank may be taken in execution and sold by public 
 auction." This act does not in terms repeal the other, and it cannot be siTpposed that it was the 
 intention of the Legislature to repeal it by implication. On this point I had no doubt ; but as Mr. 
 Wright's statement was apparently drawn up by a lawyer, and he confidently asserts that the 
 appraisement was illegal, I submitted the question to several gentlemen of the profession ; they 
 were all of opinion that the first statute is in full force, and that the lands of a Bank may be levied 
 upon or sold at the option of the creditor. Should it be inquired why the lands were not sold on the 
 execution, the answer is obvious : the Association would not consent to make the conveyance, nor 
 the Bank to receive it, on those terms. It is well known that when "the money market is light," 
 there is scarce any kind of property on which the loss is so great by a forced sale, as lands, espe- 
 cially where the quantity sold is large. So far as regards the Association, the lands could not have 
 been sold on execution, but must have been set off by appraisement, had the execution been against 
 the Association, instead of the Bank. But it may be contended that if the arrangement was judi- 
 cious as between the Bank and the Association, it was not for the interest of the U. States. This I 
 think can be easily te.sted by supposing there was no law authorizing the sale on execution ; that 
 the lands previously belonged to the Bank, and had been attached on the original writ in favor of 
 the United States ; could any one acquainted with the circumstances, doubt for a moment, as to the 
 propriety of extending this execution upon the lands ? And if, in the case supposed, no doubt could 
 arise, then how can the agent be censured for proposing an arrangement by which the lands were 
 to be placed in a condition that they might be disposed of in the same manner ? 
 
 The reasons for omitting to sue the Association on the notes, Mr. Wright says may be inferred
 
 61 
 
 from circumstances ; and after making the charitable inference that there was fear the United 
 States would recover too much, he proceeds to say that it was clearly foreseen no necessity could 
 xist for levying an execution against the members of this Association upon these or any other lands, 
 It is readily admitted that an execution to the amount of these notes, against the reputed members 
 of this Association, might be collected without resorting to real estate. But an execution against the 
 members of that Association would be considered rather more valuable than notes of hand on time, 
 signed by the Treasurer of the Association, the validity of which were contested by the associates 
 on the ground that the Treasurer had no authority to borrow the money, and that this was well 
 known to the officers of the Bank when they made the loans. So that though it might be " clearly 
 foreseen " that an execution (if obtained) against certain individuals would be available in money, 
 yet Mr. Wright is, I believe, the only one whose vision was so clear as not to see that there were 
 serious if not insurmountable obstacles to encounter before a judgment could be obtained against 
 the associates. 
 
 Mr. Wright next complains that there is something unnatural in selecting opposition men to 
 make the appraisal. It is true that the appraisers are Whigs, and I intended to appoint such. In 
 an ordinary transaction of this kind, I should pay no regard to the political character of the men ; 
 but I did in this case, and I will assign my reasons for doing so. The Commonwealth Bank, for 
 many years, and at the time of its failure, was under the management of men friendly to the 
 administration. The Warren Association I have always supposed was a kindred institution. Mr. 
 Hood, the Cashier and one of the Directors of the Bank, was Treasurer of the Association, and one 
 of its Trustees. Mr. How was President of the Association, a Director, and he was also a man- 
 aging Director of the Bank. But nothing shows more clearly the intimacy of the two institutions, 
 than the fact that when the Bank failed, the Association was its debtor for more than $200,000, for 
 which they had no security. Under these circumstances, let me suppose I had appointed men of a 
 different political character than Messrs. Merrill, Gurney and Binney, and that they had appraised 
 the lands at the same value, or for more or less, would no complaint have been made ? I should 
 have met with no difficulty in selecting competent appraisers from my political friends ; but they 
 would, in all probability, have been the acquaintance of some one or more individuals deeply inter- 
 ested in the Bank or Association. If this course had been adopted, I am inclined to think it would 
 not have been more satisfactory to Mr. Wright ; but if, in the case supposed, -he were silent, some 
 one might possibly be found in the ranks of the opposition, who would have no stronger confidence 
 in the honesty of Democratic appraisers than he has in the Whig gentlemen I selected. 
 
 I may, indeed, consider it fortunate that I appointed men to the performance of this duty whose 
 character will effectually shield them from any imputation of dishonesty that Mr. Wright may cast 
 upon them. And if the appraisers escape unscathed, the "overt act" could not have been com- 
 mitted by the agents ; for however anxious they may have been to perpetrate the fraud, it could 
 be consummated only by the intervention and perjury of the appraisers. 
 
 Mr. Wright informs you that the action against the Bank was defaulted on the 17th of May ; that 
 execution was issued and levied upon the lands which had been simultaneously conveyed by the 
 Association to the Bank for that purpose. These he considers "corroborating circumstances to 
 show that Messrs. Mills and Sibley combined with the adverse party to discharge these liabilities 
 for the smallest consideration practicable with any hope of justification." But how long an interval 
 between these several acts would Mr. Wright require, to prevent the inference of fraud ? Will he 
 say the lands would not in all probability have been attached by other creditors of the Bank, as 
 soon as it was known that the conveyance was made ? If we had paused in this business for a 
 week, or a day, in order that Mr. Wright should not have it in his power to say that we were eager 
 to defraud the government, and in this interval the lands had been lost by another attachment, is it 
 to be supposed that he would have been satisfied ? Or does he claim the privilege of complaint 
 whether our progress is slow or fast ? I am sorry that Mr. Wright's moral sense is so obtuse that 
 he cannot correctly appreciate the motives that influenced the agents in transacting this business ; 
 and he perceives no evidence of a desire on their part to guard and protect the interests of the 
 United States, but a restless disposition to defraud them of one hundred and forty thousand 
 dollars. 
 
 Mr. Wright does not know, he says, whether I am a member of the Warren Association. I have 
 good reason to believe that he does know that I am not and never was a member. 
 
 Mr. Wright refers to a deed of these lands, from the Bank to the United States, executed the day 
 after the levy. When Mr. Adan returned the agreement executed by the officers of the Bank, and 
 the sureties, I said to him, that the title to lands set off on execution was often defeated by some 
 informality on the part of the appraisers, or of the officer in making his return ; and to guard against 
 such an occurrence, I should request him to obtain a deed of confirmation from the Bank to the 
 United States. I left the city on the morning after the levy was completed. The deed was put on 
 record in my absence. I never saw it, and my conversation with Mr. Adan escaped my recollection, 
 till I read Mr. Wright's letter. I make this statement as an apology for not forwarding you the 
 deed or a copy of it with my report. 
 
 In your letter enclosing Mr. Wright's, you express regret that the agreement of the llth of May, 
 1838, was filially concluded without being submitted to your office. That agreement, in the view 1 
 take iff it, is not materially different from the proposition previously submitted. It differs materi- 
 ally from Mr. Adan's ; bin every essential alteration was supposed to be! favorable to the U. States, 
 and that is the reason I did not think it necessary to submit it to your revision. Mr. Adan's propo- 
 sitition was, to take judgment for about 8200,000. I insisted, and it was so agreed, that judgment 
 thould be rendered for the full amount due from the Bank. And I will here observe, that one con^
 
 52 
 
 sideration which led me to propose this arrangement was, that by getting judgment against the 
 Bank, the plaintiffs would be immediately (or as soon as return could be made on the execution,) 
 in a condition to commence proceedings in chancery. If the arrangement had not been made, 
 the defendants, in all probability, would have carried the case into the Circuit Court, and judgment 
 would have been delayed till May next. 
 
 Another of Mr. Adan's propositions was, that the lands attached should be levied upon as well 
 as those proposed to be conveyed to the Bank. This was rejected. It was further proposed, as 
 stated in Mr. Adan's letter, that " the quantity of land to be conveyed by said Association to pay 
 said one hundred and sixty thousand dollars, to be determined by the same three appraisers who 
 shall under oath appraise the same in said levy. This I objected to as improper, and it was 
 omitted in the agreement. 
 
 The sureties were not considered necessary parties to the agreement and they subscribed it to 
 prevent any question being made that their rights were injuriously affected. It appears to me 
 that it was immaterial to the sureties whether the application of the amount of the notes was made 
 before or after their liability was ascertained. If they are held for all sums deposited by the United 
 States in the Bank, they will receive the benefit of these notes ; and if they are discharged, the pre- 
 vious application can in no way be prejudicial to them. 
 
 In making and carrying this agreement into effect, I certainly did suppose that I was acting 
 with your approbation. If, after the full statement I have now made, you should be of opinion that 
 I have pursued a course at variance with the spirit if not terms of your letters of the 6th of March, 
 9th of April, and 4th of May, I shall, in my own justification, wish to give the reasons why I sup- 
 posed I was acting with your sanction, and to request that the papers may be placed on the 
 files of your office. 
 
 By referring me, in your letter of the 9th of April, to the 8th and 9th sections of the act of 20th 
 April, 1818, I did not consider it as a direction to institute a garnishee process against the War- 
 ren Association, under that statute, but that it was left to my discretion to do it, if, under the cir- 
 cumstances, such process could be sustained. The notes given by the Treasurer of the Association 
 were negotiable, and they had been actually transferred by endorsement. It appeared to me that 
 the process could not be sustained. In regard to the chancery process, could I have filed a bill 
 sooner than I did? Is it not a general rule that there must be a recovery against the debtor and 
 a return of Nulla Bona on the execution before you can proceed in chancery ? I had supposed that 
 the complainant is in all cases bound to show that he sued out execution and pursued it to every 
 possible extent before he files his bill. 
 
 In this case, immediately on the return of the execution, I filed a bill against the Bank, making 
 several of its debtors parties to it. 
 
 At the time the writs were served on the sureties to the bond of the 14th February, 1837, it was 
 supposed that the security then taken by the Marshal was the best that could be obtained. I may 
 be mistaken, but I am still of that opinion. Had the notes of the Association gone back to iho 
 Bank, they would form a valuable part of its assets ; but it is doubtful into whose hands those 
 assets would have fallen. The United States might, to that amount, have changed positions with 
 some creditors of the Bank who will now get nothing. 
 
 You do me the justice to say that you doubt not the course I adopted, in relation to the notes of 
 the Warren Association was, in my opinion, best for the interests of the United States. I think I 
 am able to show that I have used reasonable care and professional skill in managing the business 
 with which I have been entrusted. 
 
 I am, sir, very respectfully, your obedient servant, 
 
 JOHN MILLS, 
 District Attorney. 
 
 To the Solicitor of the Treasury. 
 
 H. 
 
 Mr. Choate's opinion upon the settlement. 
 
 Boston, November 22, 1838. 
 
 SIR, I should have answered your letter before, but some of the inquiries which it made 
 necessary were of a kind so little professional, and obliged me to collect the judgments of so many 
 different persons on matters with which I was not very familiar, that I have but just prepared my- 
 self to communicate any opinion upon the several questions stated by you. I have not felt myself 
 at liberty to avail myself of any considerable assistance from Mr. Mills, and this circumstance, 
 also, has increased the difficulty in the way of an early reply. 
 
 The result to which I have arrived is, that the arrangement effected by Mr. Mills, was, under 
 the embarrassing circumstances of the case, a judicious arrangement for the government, entered 
 into in the purest official good faith, in the exercise of a sound discretion. I consider the question, 
 in the first place, whether the Commonwealth Bank could enforce the notes signed by the Treasurer 
 of the Warren Association, as attended with great difficulty. The highest professional opinions 
 were divided upon it. The agents of the Association, who executed and delivered the notes to the 
 Bank, exceeded their authority m that act, and the agents of the Bank, who received the notes and 
 made the advances on them, were perfectly conusant of this excess of authority of the agents of the 
 Association. They were so, because they were themselves officers in the Association 'and in the 
 Bank. 
 
 The stockholders in the Association had determined to contest their liability, and would have
 
 53 
 
 been charged, if at all, at the end of a very long and expensive litigation. The sureties of the 
 Commonwealth Bank, who received these notes from the Bank, stood upon no higher equity than 
 the party from whom they received them, and would have had the same difficulty precisely in 
 enforcing them against the Association. 
 
 But whatever may have been the chances of recovering on these notes in the hands of the Bank, 
 or its sureties, the United States could do nothing with them, until they should first recover a 
 judgment against the sureties. The Marshal held the notes only as a collateral security by special 
 deposit, for such contingent judgment. Whether such will ever be recovered, and to what extent 
 it will ever be recovered, are great questions, now actually under litigation in the District Court. I 
 am about putting in replications to the pleas of the sureties, and I should not wish to express any 
 opinion as to the result, but I will venture to say that the District Attorney conducted with much 
 discretion in procuring for the government an absolute title to land, in lieu of notes which were to 
 be wholly unavailing until judgment should be recovered against the sureties, and then only to the 
 extent of such judgment. 
 
 With regard to the details of the manner in which the title was passed to the United States, it 
 would, of course, have been preferable (if it had been practicable) to have seized and sold the land, 
 and applied the actual net proceeds only to^the execution. But this was impracticable. Against 
 the Warren Association the United States had no judgment, and never could have any, until after 
 it should recover one against the sureties of the Commonwealth Bank. It was part of that arrange- 
 ment, that the land, when conveyed to the. Bank, should be taken under an appraisement, and the 
 United States could get it in no other way. The question resolves itself into this : Was it expe- 
 dient to accept the land at all ? For if it were, (as I think it was,) it could only be had as it was 
 had. The proceedings upon the levy were legal, and the title of the United States was perfect, 
 that is to say, it has the entire title of the Association. I take it for granted that title was good, but 
 have not investigated it. 
 
 Upon a levy of execution against a corporation, I think the judgment creditor has an option to 
 sell, or to take under the valuation. In this instance, as I have stated, the judgment creditor 
 could proceed but in one way. 
 
 I do not well see how more, or more judicious pains could have been taken in the selection of 
 appraisers, and I do not see any shadow of hope that the appraisement could be vacated for fraud 
 or irregularity. 
 
 The District Attorney really selected two out of three. The men were unexceptionable, and all 
 suspicion of fraud, or undue influence, is excluded by the circumstances. 
 
 There is, indeed, a universal, unconscious and irresistible inclination in jurors and appraisers in 
 favor of a party litigating with the United States, and it is not impossible that this may have 
 affected the appraisement in this case, but I see no ground for setting aside the proceedings. 
 
 My inquiries as to the justness of the valuation have not been entirely satisfactory. 
 
 Certainly, in the present state of the money market, and of the public temper in relation to mat- 
 ters of speculation, the appraisement is high. The government must hold the land a long time, I 
 think, before it can realize the amount of the appraisement. 
 
 I am free to say, however, that I think it may, ultimately, become productive and valuable. 
 
 Very respectfully, yours, 
 
 To H. D. GILPUV, ESQ., (Signed,) RUFUS CHOATE. 
 
 Solicitor of the Treasury of the United States. 
 
 I. 
 
 Mr. Gilpin's report to Congress. 
 
 Treasury Department, January 26, 1839. 
 
 SIR, In compliance with the following resolution, adopted by the House of Representatives on 
 the 14th instant, viz. : 
 
 " Resolved, That the Secretary of the Treasury be directed to inform this House what is the 
 present amount of indebtedness to the United States (if any) of the Commonwealth, Franklin, and 
 Lafayette Banks, severally and respectively, in the city of Boston, in the State of Massachusetts ; 
 and in what manner, and to what extent, the debt due from each of said Banks is secured ; and it' 
 the debts of said Banks, heretofore reported to Congress, have been paid, at what time and in what 
 manner the payments were made ; and whether the debt, heretofore reported to be due from John 
 K. Simpson, late Pension Agent in the city of Boston, has been paid or secured to the United 
 States ; and if paid, how, or when ; or if secured to be paid, by what suretyship of persons or 
 assurance of property ; and what measures have been taken, on behalf of the United States, to 
 obtain security, or payment of any amount which may be due from said Commonwealth, Franklin, 
 and Lafayette Banks, and the estate and sureties of the said John K. Simpson, respectively, "- 
 
 I have the honor to submit the annexed report from the Solicitor of the Treasury. It is believed 
 to contain all the information desired, except the additional remark may be proper that the 
 Lafayette Bank has never been a deposit Bank, nor is it known ever to have .been in any way 
 indebted to the United States. 
 
 Respectfully, 
 
 LEVI WOODBURY, 
 
 HOK. JAMES K. POLK, Secretary of the Treasury. 
 
 Speaker of the House of Represent ative$.
 
 54 
 
 Office of the Solicitor of the Trtasury, January 25, 1839. 
 
 SIR, I had the honor to receive the resolution of the House of Representatives of the 14th 
 instant, referred by you to this office, and requesting information as to the legal proceedings insti- 
 tuted for the recovery of the debts due to the United States from the Commonwealth, Franklin, 
 and Lafayette Banks, at Boston ; and from John K. Simpson, late Pension Agent at that place. 
 
 On the 18th January, 1838, an account was transmitted to this office by the First Comptroller of 
 the Treasury, stating that there was '' a balance of public money remaining deposited in the 
 Commonwealth Bank, on the 8th January, 1838, and due to the United States, of $51,749 90." 
 This account was transmitted immediately to the District Attorney at Boston, with instructions to 
 commence suit for the recovery of the balance stated against the Bank and its sureties in the bond 
 dated 14th February, 1837, and taken under the provisions of the deposit act of 23d June, 1836 ; 
 the penalty of which was for 500,000, and of which a certified copy was transmitted. This was 
 accordingly done. As it appeared that the bond had never been duly executed by the Bank, under 
 its corporate seal, and as the sureties also contended that an action could not be sustained against 
 them, because the balance of public money now stated to be due, and sought to be recovered, had 
 all been deposited since the Bank ceased to be a deposit bank under the provisions of the above 
 law, the District Attorney deemed it advisable, in addition to the above, to institute a separate 
 action of assumpsit against the Bank itself. He did so, accordingly, on the 22d of January, and 
 he obtained from the Bank, notes of its debtors, considered by him adequate collateral security for 
 the payment of the whole slated balance. 
 
 On the 24th January, the Secretary of the Treasury informed this office that, in addition to the 
 balance reported on the 18th as due, there were considerable sums of public money placed there 
 by collecting and disbursing officers, and still remaining on deposit in the Bank, which were 
 included among its liabilities to the United States, and for which the sureties in the official bond 
 were considered by the Treasury Department to be liable, as well as the officers, personally, who 
 made the deposits. Instructions were immediately given to the District Attorney to this effect. 
 On examining the books of the Bank, he ascertained the following balances of deposits by col- 
 lecting and disbursing officers : 
 
 Pension Department, $152,684 21 
 
 Post Office Department, 7,806 99 
 
 D. S. Townsend, Paymaster, < . 1,167 32 
 
 David Hecshaw, Collector, 65,941 77 
 
 H K. Craig, Master of Ordnance, 534 
 
 Shaw, Lewis and How, Commissioners new Custom-House, 71,555 38 
 
 Making, together, $299,161 01 
 
 Adding to this the above-stated balance, due to the Treasurer of the United 
 
 States, of 51,749 90 
 
 Would make an aggregate of . ; . :....; 350,910 91 
 
 The Treasurer's balance, however, was reduced, before suit was instituted, by a 
 
 payment of 12,11297 
 
 Leaving the aggregate of public money on deposit, $338,797 94 
 
 On the 30th January, separate suits were accordingly commenced by the District Attorney for the 
 recovery of this sum, against Hall J. How, Otis Rich, John Henshaw, Elisha Parks, F. S. Carruth, 
 William Freeman. Oliver Fletcher, and Adams Bailey, the sureties of the Bank in its bond of 14th 
 February, 1837; the damages in each case being stated at $ 100,000, and the Marshal being 
 directed to attach sufficient property. 
 
 Suits were also commenced against Hall J. How and Charles Hood, the sureties of John K. 
 Simpson in his bond of 30th January, 1834 ; and against Otis Rich and John Henshaw, sureties of 
 Simpson in his bond of 12th February, 1836, to recover from them the portion of the above amount 
 which was due under his pension asfe'rtcy ; and at the same time the proper steps were taken to 
 secure the priority of the United States in the distribution of the assets of his estate, he having died 
 insolvent. 
 
 On the process being served by the Marshal, on the 2d February, against the sureties of the Bank, 
 they placed in his hands securities to the nominal amount of $280X)00. These consisted of pro- 
 missory notes due to the Bank by its debtors, which had been transferred to the sureties previous to 
 the institution of the suits, and formed the most valuable, if not the only available portion of the 
 property of the Bank at the time of its failure. They were placed in the Marshal's hands condi- 
 tionally, to rtbide the result of the suits against the sureties on the bond. These sureties, however, 
 contested and totally denied their liability to the United States under this bond, on the grounds, as 
 was understood, that the bond was never duly executed, not having been sealed with the seal of 
 the Bank ; that, by the terms of the bond and of the contract made with the Bank by the Secretary 
 of the Treasury, pursuant to the provisions of the deposit act of 1836, the sureties were only bound 
 for the security of the public moneys belonging to the United Slates, deposited to the credit of the 
 Treasurer, and not for deposits made by disbursing officers in their own names, of which nearly 
 the whole of what they were now sued for consisted ; that, even of these deposits, the principal
 
 55 
 
 portion had been made since the Bank ceased to be legally a deposit Bank, and therefore at a period 
 when the legal liability of the sureties, had it previously existed, was at an end ; and that, so far as 
 regarded the small sum which did remain to the credit of the Treasurer, the whole of that had been 
 received by the Bank subsequent to that event. On these grounds principally, and upon some 
 others, the sureties have resisted the claim of the United States against them ; and the suits are 
 now pending in the District Court of the United States at Boston. 
 
 Among the two hundred and eighty thousand dollars of securities, above referred to as handed 
 over conditionally by the sureties to the Marshal, to await the event of these suits, were six promis- 
 sory notes signed by Charles Hood, as Treasurer, on behalf of the Warren Association, amounting, 
 altogether, to $160,000, and payable in four, five, seven, nine, eleven, and thirteen months. The 
 Directors and associates of the Warren Association, however, denied their liability for these notes, 
 on the ground that they were signed by the above-named officer in violation of an existing and 
 positive prohibition, which expressly forbid any officer to borrow money, or incur debts beyond the 
 amount of $30,000, without a resolution to that effect ; and that the existence of this prohibition was 
 known to the Commonwealth Bank at the time the loan was made upon these notes. The residue 
 of the notes conditionally handed to the Marshal, and amounting to somewhat more than one hun- 
 dred thousand dollars, were considered, in general, to be good. As several of the sureties, who 
 were parties to the bond, had failed, and as real estate (except about $10,000) was the only property 
 of the solvent sureties that could be attached, the District Attorney considered this transfer, condi- 
 tional as it was, of these promissory notes, to be for the interest of the United States, as it unques- 
 tionably was. The sureties, however, refused to surrender them, or allow the Marshal to hold 
 them to respond to any judgment against the Bank itself, but such only as might be recovered on 
 the suits instituted against themselves, and in which they contested their liability. 
 
 On the 9th February, 1838, a duly certified copy of the contract entered into by the Bank on the 
 15th July, 1836, and which, being duly executed, was not liable to the objection taken to the bond, 
 was transmitted to the District Attorney, with copies of the several bonds, to be used in further pro- 
 ceedings against the Bank, should he deem it advisable. On receiving the contract, the District 
 Attorney commenced suit upon it against the Bank, and under it the sheriff attached all the lands 
 MO; to the Bank that he could find. They were not of much value, but the District Attorney 
 is of opinion that at least $20,000 of the debt due to the United States will be realized out of this 
 suit. 
 
 On the 17th May, 1838, during the March term of the District Court of the United States, and 
 pursuant to an agreement made the llth May, a judgment was confessed by the Bank, in the action 
 of assumpsit, and duly entered of record in favor of the United States, for $325,517 55. The whole 
 debt at that time amounted to $345,517 55, but the balance of $20,000 being considered by the Dis- 
 trict Attorney as secure under the suit brought on the 23d February, judgment for it was left to 
 await the termination of that action. On this judgment for $325,517 55 execution was issued to 
 the Marshal on the same day. 
 
 At the time that the Bank thus agreed to confess this judgment for the whole amount of the pub- 
 lic moneys on deposit, there was no property, real or personal, belonging to that institution, and 
 known to the District Attorney or the Marshal, which could be levied upon; the sureties, and the 
 sums ihat might be ultimately realized out of the promissory notes and securities held conditionally 
 by the latter officer, constituted the only source from which payment was to be expected. A pro- 
 position, however, had been made by the Bank and the sureties, for the unconditional substitution 
 of real estate for that portion of the conditional securities which consisted of the notes of the War- 
 ren Association, provided the United States would proceed under its execution by way of extent of 
 the real estate, and not by a Marshal's sale. The law of Massachusetts gives an option, as to 
 cither of these modes, to a judgment creditor against a Bank or corporation, while against private 
 debtors it obliges him to take the real estate by extent, at a valuation and appraisement made 
 according to law ; and it was contended by the Directors and associates of the Warren Association, 
 that even if they could be held personally answerable for these notes, (which was denied, and 
 would be contested if suit was brought on them,) yet, in case of eventual recovery, their real estate 
 must be taken by an extent similar to that which they required the United States to adopt, in case 
 it should be voluntarily conveyed to the Commonwealth Bank, and made liable to its debts. It 
 was agreed, on the part of the United States, to pursue this mode under its execution, provided the 
 Warren Association would convey absolutely to the Commonwealth Bank, and thus render liable 
 to the execution, an amount of real estate sufficient to cover the whole principal and interest of its 
 notes held conditionally by the Marshal ; that the Register of Deeds should certify, in writing, that 
 the title of the lands so conveyed was good ; and that two of the three appraisers required by law 
 should be named by the District Attorney. 
 
 Under the execution in the hands of the Marshal, therefore, Nathan Gurney and James C. Merrill 
 were appointed appraisers on the part of the United States, and Amos Binney on the part of the Bank 
 all considered to be persons well qualified to make the appraisement and valuation. Real estate, 
 to the amount of $16(5,437 90, consisting of sundiy squares and lots in South Boston, and estimated, 
 it is understood, at the value of fifteen cents a foot, was extended and delivered to the United 
 States, under this process. To confirm the title of the United Stales more effectually, if necessary, 
 a deed was also executed by the Bank on the 18th of May, 1838. 
 
 On the 31st of July, 1838, the District Attorney collected out of the securities placed in his hands 
 by the Bank in January preceding, a further sum of $2,595 68, together with the costs that had ac- 
 crued. This was paid by him to the Marshal, and by that officer paid into the Treasury. 
 
 On the :;lst July, the District Attorney filed a bill in equity against sundiy debtors of the Bank,
 
 with a view to obtain such further security from that source as might be available towards the debt 
 due to the United States. 
 
 On the 9th November, 1838. the District Attorney collected from the securities above referred to a 
 further sum of 816,255 71, together with costs. This was paid over to the Treasurer of the United 
 States, and duly covered by warrant on the 22d November, 1838. 
 
 It will thus be seen that of the original amount due from the Bank to the United 
 
 States, of 350.910 91 
 
 Payments have been made into the Treasury to the amount of ... $30,964 36 
 
 And real estate has been set off, by extent, to an amount of 166,437 90 
 
 197.402 26 
 
 Thus leaving due, exclusive of interest, $153,508 65 
 
 It may be proper here to remark, that representations having been made to the Secretary of the 
 Treasury, and to this office, unfavorable to the course pursued by the District Attorney, as stated 
 above, in entering up the judgment and proceeding under the execution by an extent of the real 
 estate conveyed by the Warren Association, the same were fully examined by this office, not only 
 in regard to their correctness in a legal point of view, but to their expediency and tendency to pro- 
 mote the interests and best secure the debt of the United States. The principal grounds on which 
 these allegations rest, are, that the United States should have proceeded against and could have 
 recovered from the individual members of the Warren Association the amount of their notes ; that 
 the real estate should have been sold, and not extended, under the execution ; that the appraise- 
 ment under the execution was unfair, if not fraudulent ; and that the agreement made by the Dis- 
 trict Attorney was an improper compromise of the rights and interests of the United States. It will 
 be perceived, from the previous part of this report, that these allegations are founded on error as to 
 facts. At no time has it been in the power of the United States to proceed against or recover from 
 the individual members of the Warren Association the amount of their notes. These notes were 
 negotiable by endorsement, and were transferred by the Commonwealth Bank, which held them, to 
 the sureties, previous to the institution of the suit against them. They were handed to the Mar- 
 shal, on the express condition that they were to be held by him responsible only for such judgment 
 as might be recovered by the United States against the surctits. Until, therefore, there was a judg- 
 ment against them on their bond, the right of the United States to which is totally denied on the 
 grounds before stated, no proceedings could be instituted on the notes of the Warren Association. 
 But, further, if the sureties were held liable, the individual members of the Warren Association 
 denied their liability on the notes, for the reason, also before stated, of their illegal execution by 
 unauthorized officers. Had these defences failed, and judgments been ultimately recovered on the 
 notes, the defendants would, under the laws of Massachusetts, be entitled to have their real prop- 
 erty extended in the very mode for assenting to which the District Attorney is complained of, unless 
 sufficient personal property could have been found. The real estate was extended, instead of being 
 sold, because in no other manner could it have been made available to the United States. It was 
 not the property of the Commonwealth Bank. It never would have been conveyed to them, so as 
 to be liable to execution, except under the agreement to adopt this one of the two modes allowed 
 by law. To have done otherwise would have been to grant to the plaintiff better terms than he 
 could have gained, had he succeeded in a very doubtful and complicated legal controversy. There 
 is no reason to believe that the conduct of the appraisers was unfair or fraudulent. They are men 
 stated to be of high character and standing ; well acquainted with the value of such property ; 
 totally unconnected with any of the parties ; their selection was made without their previous knowl- 
 edge ; and their estimate was unanimously adopted, without previous concert. Whether the value 
 set upon the land be too high, is a point which can only be decided by ultimate sales. While, on 
 one hand, statements have been made to this office to that effect, on the other there have been nu- 
 merous representations of a contrary character, with confident assurances that the result will be 
 ultimately a complete indemnity to the United States. Reviewing all the facts of the case, as 
 they have come to my knowledge after full inquiry, and considering the very doubtful litigation in 
 which the United States would have been involved, not merely with the sureties, but with the 
 members of the Warren Association, no hesitation existed, or does exist, on my part, in expressing 
 approbation of the course taken, as that which, under the circumstances, was proper, in a legal 
 point of view, and decidedly best for the interests and ultimate security of the United States. 
 
 Taking into view, however, the nature of the allegations, and the advantage to be derived from 
 the opinion of counsel fully acquainted with the local laws and mode of proceeding ; considering, 
 loo, the large amount that still remained unsecured, as well as the intricate questions involved in 
 the pending suit on the bond of the sureties ; the professional services of Rufus Choate, Esq., were, 
 with the approbation of the Secretary of the Treasury, retained in aid of the District Attorney ; and 
 he was requested to investigate and report fully, to this office, on the legality and expediency of the 
 whole previous proceedings. la the reply of Mr. Choate, he expresses his decided opinion that the 
 course pursued by the District Attorney was judicious for the government, and entered into in the 
 purest official good faith, in the exercise of a sound discretion ; that the liability of the stockholders 
 for the notes of the Warren Association, as well as that of the sureties under the official bond held 
 by the United States, were questions attended with great difficulty ; and that the District Attorney 
 displayed much discretion in procuring for the government an absolute title to land, in lion of notes,
 
 57 
 
 which were to be entirely unavailing until judgment should be recovered against the sureties, and 
 only to the extent of such judgment. He also confirms, entirely, the legality and professional as 
 well as official correctness of the proceedings upon the levy. 
 
 In regard to the balance due, under the judgment, of $153,508 65, exclusive of interest, it will be 
 seen that the United States have to look to the recovery against the sureties on the bond of 14th 
 February, 1837, so as to render available the residue of the notes handed, conditionally, to the 
 Marshal, and which amount to something exceeding $100,000 ; to the proceeds of the attachment 
 and judgment in the suit brought in February, 1838, on the contract of the Bank ; to a recovery on 
 the two official bonds of John K. Simpson, for the amount of the pension deposit, and to such sums 
 as may be recovered out of the assets of Simpson's estate, or under the chancery proceedings insti- 
 tuted against the debtors of the Commonwealth Bank. In all these, legal proceedings are still 
 pending. The foregoing statement affords as full a view as can be given of the grounds on which 
 ultimate success is to be expected. The amount of security, if rendered available, is certainly 
 quite sufficient to cover the balance. A proposition has lately been made, on behalf of the Bank 
 and the sureties, to settle the whole balance due to the United States, by the payment of $107,632 58 
 in cash, by instalments, all falling due in eighteen months, and well secured, and the residue by a 
 levy on real estate in Boston, to be set off by appraisement under the execution laws of that Dis- 
 trict. The acceptance of this offer is recommended both by the District Attorney and Mr. Choate, 
 in general terms ; and there would be no hesitation in agreeing with them as to the expediency of 
 so doing, if the whole payment had been proposed in well-secured cash instalments, even somewhat 
 more distant than those now offered ; but the large amount of real estate already received towards 
 the satisfaction of this debt makes it, in my opinion, inexpedient to take more, if there is a reason- 
 able prospect of securing the debt in any other way. If, as is alleged, there is but little personal 
 estate of the Bank that can be made available, other than what is now offered, which is, besides, 
 previously pledged for the indemnity of the sureties, the question of expediency must chiefly turn 
 upon the prospect of a recovery from the sureties in the suit brought on their bond for the Bank, 
 and the comparative advantage of relying upon that in preference to the present offer. 
 
 Under these circumstances, and before giving any answer to the proposition, I referred it again 
 to the District Attorney and Mr. Choate, for fuller information on these points. Their reply has not 
 yet been received. 
 
 In reply to the inquiries of the resolution which relate to the Franklin Bank, I have to say, that, 
 on the 14th of August, 1837, a Treasury transcript of the settlement of the account of that institu- 
 tion, showing a balance due to the United States of $17,469 10, together with a copy of the agree- 
 ment with the Treasury Department, making it a public depository, and a copy of the official bond, 
 were received at this office, and forwarded on the same day to the District Attorney of Massachu- 
 setts, by direction of the Secretary of the Treasury, that he might obtain payment of the balance 
 due the United States, or ample and satisfactory security, which it was believed the Bank was 
 ready to furnish. The District Attorney was also directed to give this matter his early and partic- 
 ular attention, and report the result. Promises were made by the officers of the Bank to settle the 
 balance due, and additional security was obtained by the District Attorney, consisting of $4,478 in 
 Bank bills, the proceeds of which, amounting to $4,468 75, have since been paid into the Treasury, 
 and reduce the debt to $13,000 35, exclusive of interest. It being found impossible to obtain fur- 
 ther payment, suits were instituted, in January, 1838, against the Bank and the sureties in its offi- 
 cial bond. These suits were still pending at the last return of the District Attorney, a continuance 
 having been granted by the court on the application of the defendants. No special report has been 
 received from that officer as to the adequacy of the security in the official bond, or as to the pros- 
 pect of realizing the balance still due from the assets of the Bank. The amount, however, is so 
 small, that it is presumed there is no danger of its not being recovered from one or other of the&e 
 sources. 
 
 In reply to the inquiries of the resolution which relate to the Lafayette Bank, I have to say, that 
 no account against that institution has been sent to this office for suit, nor is it known to me that 
 anything is due from it to the United States. 
 
 Very respectfully, yours, 
 
 H. D. GILPIN, Solicitor of the Treasury. 
 
 To the Hon. LEVI WOODBUJ^Y, Secretary of the Treasury, 
 
 J. 
 
 (tyinion of Messrs. Mills atid Choate, upon the liability of the Sank sureties. 
 
 Boston, February , 1839. 
 TV the Solicitor of the Treasury. 
 
 SIR, We have examined the question as to the liability of the sureties of the Commonwealth 
 Bank, on their bond dated Feb. 14, 1837. This bond has the signatures and private seals of John 
 K. Simpson as President, and Charles Hood as Cashier of the Bank ; but as the bond is not sealed 
 with the seal of the Corporation, the acts of the President and Cashier did not bind the Bank. 
 Hall J. How and eight others executed the bond as sureties for the performance of the contract 
 entered into by the Bank on the 15th July, 1836. There are some expressions in the bond of the 
 llth Feb., which would seem to extend the liabilities of the sureties to "any deposits remaining 
 with the said Bank at any time prior to the 1st day of Nov., 1837." But it is very clear from an 
 3
 
 53 
 
 examination of the whole instrument, that the obligation of the sureties is not more extensive than 
 that of the Bank, under the contract of the loth of July. By that contract the Bank was bound 
 "to discharge all the duties and services prescribed by the act of the 23d of June, 1636." On the 
 12th day of May, 1837. the Commonwealth Bank " refused to redeem its notes on demand in spe- 
 cie," and on the 18th of the same month the Secretary of the Treasury notified the President of 
 the Bank that that institution was no longer a depository of the public money. For any deposits 
 made subsequent to the 18th of May, the Bank would be liable in an action of assumpsit for money 
 had and received, but not in an action of debt on the contract. And if the Bank is not liable for 
 such deposits in an action founded on the contract, the sureties are not. In this view of the case, it is 
 necessary to inquire what was the amount of public money on deposit in the Bank, on the 18th day 
 of May, and how much of that sum remained unpaid at the time the actions were commenced 
 against the sureties. From the books of the Bank, it appears that the amount of deposits, standing 
 to the credit of the Treasurer of the United States, and receiving and disbursing officers, on the 18th 
 May, 1837, was 8697,497 90. The balance remaining due of these deposits, at the time the actions 
 were commenced against the sureties, in January, 1838, was $106,640. For this sum the sureties 
 were liable, but for nothing further. The sum of 8166,437 90 has been paid on the execution 
 issued against the Bank, and for which the sureties are to have the benefit, if a judgment is recov- 
 ered against them. In addition to this, the Bank now proposes to pay, or secure to be paid, in 
 cash, 8 107,000. If we are correct in the view we have taken of the subject, it is manifest that 
 nothing is to be gained by further prosecuting the actions against the sureties. 
 
 We are, &c., 
 
 (Signed,) JOHN MILLS, District Attorney. 
 
 R. CHOATE. 
 
 K. 
 
 William Wright to Mr. Gilpin. 
 
 Boston, July 22, 1839. 
 
 Sm, In your official statement of the compromise made with the Warren Association, you have 
 spoken of Mr. Choate, and have alluded to other persons whose names were not given, as the 
 source of information relied upon in giving the transaction your official sanction. As I have 
 an interest in knowing who those other persons were, I must request of you the information. 
 
 Probably, those friends of the administration, most favorably known at Washington, were looked 
 to as the most suitable source of inquiry; such, if you please, as Mr. Parmenter, of Congress, 
 Mr. Bancroft, the Collector, and perhaps Judge Morton. 
 
 If those individuals, or either of them, were consulted, and spoke of this transaction in terms of 
 approbation, I should be glad to know it. I should be glad, also, to know whether they referred 
 you for information to other persons, and who such other persons were. In fact, I am desirous of 
 having the names of all who have given favorable accounts of this affair, designating those 
 whose statements were in reply to your solicitations, from those whose statements were merely 
 voluntary. 
 
 The favor of this information I think I have a right to ask and to expect inasmuch as the 
 representations which I had previously made concerning the matter have been discredited and set 
 down as false, in consequence of the contradictory accounts received from the persons thus alluded 
 to in your report. 
 
 With much respect, your obedient servant, 
 
 WILLIAM WRIGHT. 
 To HON. HENRY D. GILPIN", 
 
 Solicitor of the Treasury* 
 
 Report of Mr. Solicitor Birchard, to Congress, May, 1840. 
 
 Office of the Solicitor of the Treasury, May 25, 1840. 
 
 SIR, I received on the 16th instant the letter of the Hon. William Key Bond, chairman of the 
 Select Committee of the House of Representatives, addressed to you, under date of the 13th instant, 
 and enclosing a copy of the memorial of William Wright, and the following resolution of the Select 
 Committee, to wit : 
 
 Resolved, That the chairman be directed to ask the Secretary of the Treasury to furnish the 
 Committee with the following information, viz. : 
 
 1. With copies of all contracts made with the Commonwealth Bank at Boston, for the deposit of 
 the public money in the same, and of all bonds and other securities taken by the Department for 
 the safe keeping and repayment of the public money. 
 
 2. Copies of all contracts at any time made by the Department, or any of its agents, by which 
 additional security was obtained for the sums due from said Banks, or any portion of them, and of 
 all papers relating to such contracts. 
 
 3. Copies of all correspondence of the Department with its agents or others, and of all other 
 papers relative to the compromise by which certain real estate, in South Boston, was taken in satis- 
 faction of a large portion of the claim of the government against said Banks,
 
 4. That the chairman also request the said Secretary to furnish the Committee with copies of 
 any other papers on file in his Department, and with any other information in his possession; show- 
 ing the terms and character of the aforesaid compromise. 
 
 A true copy. 
 
 Attest: WILLIAM KEY BOND, Chairman. 
 
 In compliance with the request of the chairman of the Committee "for any explanation or sug- 
 gestion which may be thought pertinent to the subject," and for copies of all the papers indicated 
 by the resolution, and in obedience to your requisition, I immediately directed all the clerks in my 
 office, with the exception of Mr. Harpar, to commence preparing the copies called for, and thus 
 employed them continuously until Friday last, before the copying was completed. Too much time 
 was necessarily employed in comparing their work, to enable me to transmit the papers during the 
 succeeding day. 
 
 I have now the honor to submit the same, (a list whereof is annexed.) which, so far as my 
 knowledge extends, contain all the information that the records or files oi' this office can now, or 
 could at any time heretofore, furnish, throwing any light upon the transaction, or in any way 
 capable of aiding the Special Committee in their investigation. 
 
 It seems to me that the very full report of my predecessor, dated January 25, 1839, will super- 
 sede the necessity of any extended remarks from me. It may be pertinent, however, to the subject, 
 to state, that I do not regard the proceeding in the light of a compromise. 
 
 Had the United States succeeded in obtaining a judgment against the Warren Association, and 
 put forth its execution and caused a levy to be made upon its real estate, I apprehend that the 
 laws of the Slate would have forced government to take it at the appraised value ; for government 
 would then have stood, in relation to the demand against the Warren Association, in no better con- 
 dition than the Commonwealth Bank would, and could have enjoyed no greater privileges. If the 
 Association could have compelled the Bank to extend its writ upon real estate, (of which I have no 
 doubt,) they could also have required the United States to pursue the same course, whenever as 
 creditors of the Bank judgment should be rendered in their favor. 
 
 Supposing it then to have been necessary to resort to this means of securing the debt, which I 
 think is abundantly shown by the evidence herewith transmitted, and it will follow that the com- 
 promise amounts, in substance, to the same thing, precisely, which, under the most favorable 
 result, would have been produced by prosecuting a suit as creditor of the Bank against the Asso- 
 ciation. If it would have been legal to subject the land in due course of law, at the termination 
 of a long and difficult litigation, to payment of the debt of the United States, I am at a loss to con- 
 jecture a reason why it would be unlawful to do the same thing in a more summary and amicable 
 way. 
 
 I have not seen evidence of fraud or official misconduct on the part of any of the law officers of 
 the government. My predecessor's letters and the report of Mr. Mills will, however, speak for 
 themselves, in connection with the papers. The latter was fully justified by the report of the Hon. 
 Unfits Choate, and, though furnished by me with a copy of the memorial, signified in the enclosed 
 letter his willingness to rely upon his former explanation in answer to similar accusations. In 
 adjusting a claim of this magnitude, it was necessary to incur great responsibility, and had the 
 District Attorney refused to do it, and lost thereby the chance of saving anything from the debt of 
 the Warren Association, he would have been justly censurable, and could not have escaped blame. 
 Whereas, if he could get a fair appraisal, which, with the precaution taken, he had a right to expect, 
 no one would have doubted the propriety of his course under the embarrassing state of the debt and 
 the doubtful contingencies that clouded the prospect of eventual recovery. The Bank was known 
 to be hopelessly insolvent. The bond given as security, certainly covered but a small portion of 
 the debt due to the government ; and if, as was strongly presented in the grounds of defence taken 
 by the sureties, and set forth at large in their several special pleas, the bond itself was not such a 
 contract as could be enforced by the laws of Massachusetts against the Bank itself, the sureties 
 were entirely discharged from all liability whatever. These were considerations which third par- 
 ties might well overlook. I am not surprised that Mr. Wright overlooked them, yet it would have 
 been unpardonable in the District Attorney if he had omitted to take them into consideration. It 
 would have been equally unpardonable had he omitted to anticipate the possibility that, in the 
 event of a recovery against the private Association, which, from the nature of the controversy, he 
 could not expect would be had in a short time, he might find all the personal effects of the mem- 
 bers placed beyond the reach of the law, or even the debt itself satisfied by arrangement with the 
 Bank before he could take the means of securing it. It was negotiable paper, and it had, in fact, 
 been already negotiated by being pledged to the bondsmen. A reasonable exercise of the usual 
 ingenuity of bankers would have soon placed it beyond the ordinary vigilance of the law, if those 
 interested had felt so disposed. 
 
 Viewed fairly, and it seems to me that the whole of the complaint finally resolves itself into this : 
 was the land appraised too high ? On this point there arc various opinions. Some have said it 
 was not worth one fourth of the sum at which it was appraised, and never will be. Others put it 
 at a half; some at ten, others twelve, others at fifteen cents per foot, the price at which the 
 appraisers set it over to the United States. Some have valued it higher than the appraisal. Since 
 I came into office, I have made inquiries of every one that 1 have met who knew, or professed to 
 know, anything about its value, and no two have yet been found who agreed. The answers given 
 to my inquiries, the general description of the property which I have, the state of the money market, 
 and the gradual reduction of the prices of land consequent upon the reduction of the circulating
 
 UCSB LIBRARY 
 
 60 
 
 medium, have fixed upon my mind a strong belief that the amount of $160,000 could not now by 
 any means be realized from its sale. Every one with whom I have conversed, has advised against 
 bringing it into market at present. I have been assured that the best real estate in Boston, if put 
 into market in large quantities, would not now command, in cash, the half of what was considered 
 its cash value two years since. The fairness or unfairness of the appraisal may in one sense be set 
 down as a problem, which time alone can solve with any approach to certainty. It may turn out 
 like the real estate made over to the United States by the late Edward Livingston, which, after the 
 lapse of four years only, overpaid the principal and interest of a debt of over $40,000, although in 
 the mean time it was considered as a totally desperate debt ; or, like the lands of the late Edmund 
 Randolph, which were considered of no great value when taken by the United States, but which, in 
 a few years after, overpaid the whole debt and interest, amounting to over $53,000 principal. Cer- 
 tainly the location of the property at South Boston is such as to make such a supposition by no 
 means improbable. Be this, however, as it may, be the appraisal too high or too low, I can yet see 
 no way in which the officers of the United States could have taken greater precautions to secure a 
 lair appraisal ; and if there has been any fraud in the transaction, it must have been perpetrated, as 
 the District Attorney states in his report, by the deliberate perjury of Messrs. Gurney, Merrill and 
 Binney, the appraisers, men whose character I have understood to be above suspicion. A differ- 
 ence of opinion about the value of a piece of property, in a city of the size of Boston, is but poor 
 matter of evidence to sustain any such imputation, or, in fact, any imputation touching the integrity 
 of men of fair character. 
 
 In conclusion, I feel myself constrained to say, after the most careful examination of the whole 
 correspondence, that the course of proceedings adopted by the law officers of the government, 
 (though attended with great and serious responsibility, from which they did not shrink,) was strictly 
 justifiable in a legal point of view, and that I cannot find in the evidence anything whatever to sus- 
 tain the charge that their motives were incorrect, or that there has been in any step taken by them 
 any official impropriety, much less the slightest ground for charging them with fraud. 
 
 Very respectfully, yours, 
 (Signed,) M. BIRCHARD, Solicitor of the Treasury. 
 
 HON. LEVI WOODBURY, Secretary of the Treasury. 
 
 Note referred to Oil page 15* 
 
 The origin and proof of the $42,000 checks 
 
 Washington, Treasury Department, March 11, 1844 
 
 DEAR SIR, By reference to the Treasurer's office, it appears that on the 4th of December, 1837, 
 a draft for $42,000 on the Commonwealth Bank of Boston, with f 8,000 in Treasury notes, was 
 sent you from that office, accompanied with the usual printed letter, and receipts for the draft and 
 notes. The receipts signed by you are on file, but a copy of the letter was not preserved, it not 
 being the practice to keep copies of such letters. Your letter of the 9th December, 1837, acknowl* 
 edging the receipt of the draft and Treasury notes, is on file in this department. 
 
 With high regard and respect, 
 
 Your obedient servant, 
 
 J. C. SPENCER. 
 HON. DAVJD HEitsnAW, Boston,