appointed in pursuance of the eighth section of the act of March 3, 1851, reported thereon; and, in concurrence therewith, it was

Ordered, That three thousand copies of the said report be printed, one thousand copies of which to be for the use of the Light-House Board.

On motion by Mr. FELCH, it was

Ordered, That the Committee on Public Lands be discharged from the further consideration of documents in support of the claim of the State of Alabama, for the payment of interest due on account of the five per cent. fund, and that it be referred to the Committee on the Judiciary.

On motion by Mr. ATCHISON, it was

The report of the committee was agreed to.

WORKMEN ON THE CAPITOL.

Mr. HUNTER, from the Committee on Public Buildings, to which was referred the memorial of the workmen employed on the extension of the Capitol, reported a joint resolution to authorize the continuance of the work on the two wings of the Capitol; which was read a first time, and ordered to a second reading.

Mr. HUNTER. I ask the unanimous consent of the Senate to have it read a second time now, and considered by the Senate.

The PRESIDENT. It requires unanimous con-
Is there any objection?
Mr. BORLAND. I regret to make any oppo-

sent.

sition to this—

ton the 28th of March, 1836.

EXPLOSION OF STEAM BOILERS.

Mr. BORLAND. 1 am authorized by the Committee on Printing, to which was referred the memorial of Alfred Guthrie, a practical engineer, submitting the results of his experiments in relation to the cause of the explosion of steam boilers, to report in favor of printing the document; and five thousand five hundred additional copies-five

hundred of which shall be for the use of Mr. Guthrie. I will remind the Senate of the remarks made yesterday by the Senator from Illinois, (Mr. SHIELDS,] upon introducing these papers and documents. I suppose it will not be necessary to add anything to what he said.

Mr. HALE. I wish to say a word, and I wish to call to the mind of the Senate, if they can remember it, the speeches made by the Senator from Missouri, [Mr. ATCHISON,] and the Senator from North Carolina, [Mr. MANGUM,] and another Senator, upon printing extra copies of such documents. I listened to those suggestions of economy and prudence, at the time; and I submitted, as I had to do, with a good grace. But it seems that those aumonitions have all been forgotten, and here we are to print five thousand extra copies, and five hundred more for the author of some essay, not by an officer of the Government-not of anything connected with our legislation, but an essay upon explosions. That is what I understand it to be.

Mr. BADGER. That will be very useful to the Senate; for explosions happen here very often. Mr. HALE. Í object to this; and call upon Senators who so prudently and wisely interfered and refused to print a public document of immense interest, and of great consequence, relating to a practical matter before the Senate, to apply the same rule to this enormous proposition to print five thousand five hundred extra copies of the essay of this gentleman upon explosions. Sir, we have explosions enough, without disseminating essays upon them; and I do hope the Senate will interpose and not sanction this expenditure. But I suppose it is too late. The fashion is set. printed, I do not know how many numbers of Professor Espy's speculations on storms; and this, I suppose, is something similar to it in regard to thunder. As it appears to be the fashion of the Senate to print extra copies of these documents, I have no hope of arresting this proposition. I shall simply record my vote against it.

We

The PRESIDENT. Does the Senator object. Mr. BORLAND. I wish to state the reason

ter was brought before the Senate, that the subject involved was undergoing an investigation by a committee of the House of Representatives. I was under the impression that a special committee had been appointed for the purpose of inquiring into the correctness of the report, that the foundations laid were not secure. It was supposed by some that these investigations had been abandoned, and that the gentleman moving for the committee had become satisfied, and had withdrawn his proposition. I learn, however, that such is not the fact, and that he is still of opinion that the foundations of the wings are insecure and unsafe; and he is now pressing the other House for permission to send for persons and papers in order to inquire into the matter. For that reason I would be unwilling to see any measure adopted to provide for the continuance of the work, until that investigation should be made.

Mr. HUNTER. I would state to my friend from Arkansas that I have examined into this matter, as I am a member of the Joint Committee on Public Buildings; and even if the suspicion which his friend entertains in relation to the foundations of the wings were true, the passage of this resolution would not affect it much. I have seen the Architect this morning, and he does not expect to carry up the walls until after the first of March, and then only in fine weather. I apprehend, how

ever, that there cannot be much doubt as to the security of the foundations. This resolution, however, limits the work to be done by the appropriation which it makes. The resolution of the Senator from Michigan [Mr. CASS] left it indefinite. I think that the object of the Senator will not be delayed by the passage of this resolution.

Mr. BORLAND. Under the circumstances stated by the Senator from Virginia, I withdraw my objection.

The resolution was read a second time, and the Senate proceeded to consider it as in Committee of the Whole. It is as follows:

Resolved, &c., That the Secretary of the Interior may continue in employment, for the construction of the wings of the Capitol, as many of the mechanics and laborers as can be properly engaged on the work; and that the sum of $10,000 be, and hereby is, appropriated, out of any money in the Treasury not otherwise appropriated, for that purpose: Provided, however, That the walls of the building shall not be carried up in weather which is unsuitable for the work. The resolution was reported to the Senate without amendment, and ordered to be engrossed and read a third time.

COMPENSATION OF CENSUS MARSHALS.

of my

Mr. BADGER. I am rather late, but I beg the indulgence of the Senate to allow me the opportunity now to present some applications from a few more victims of the "square root friend from Kentucky, [Mr. UNDERWOOD.] I have certain petitions, which I wish to present, of assistant marshals of North Carolina, praying for assistance and relief from the injurious consequences of the "square root."

lars, they ask for more pay. All I have to say on the subject is, that the compensation allowed by

the last Congress was three dollars for every thirty miles they traveled. If three dollars is not enough for thirty miles traveling, the compensation ought to be increased; but if it is enough, they have no right to grumble. Besides, they were allowed more per head for counting the population than was ever allowed under any previous census bill. The only difficulty growing out of the subject is in relation to the mileage which they claim; and it can be demonstrated by this "square root,' that, when they give the number of families in their territories, their mileage cannot exceed a certain amount. These gentlemen, in their petitions, withhold the statement of the amount of travel they have had to perform, and merely claim, in general terms, more compensation. This is the truth of the case.

Mr. BADGER. I beg to say that I did not intend any real reflection upon the "square root" of the Senator from Kentucky. It is a very good root. I have not the least objection to it in the world. All the objection the marshals in my State have to it is, that it does not give them a reasonable and decent compensation for their services. Some like squares, and some like cubes. It is a matter of taste altogether. I move to refer the memorials to the Committee of Claims.

Mr. HALE. I would suggest that the Senate have not got to the real difficulty. I apprehend that the truth is, that the marshals have not been to school long enough to know how to extract the square root; and hence they do not know exactly what their compensation is. But, if you put it down in figures, they will be satisfied. The explanation of the Senator from Kentucky convinces me of that.

The memorials were referred to the Committee of Claims.

ORDER OF BUSINESS. The PRESIDENT. The hour of one o'clock having arrived, private bills come up in their order.

Mr. GWIN. I move to dispense with the order requiring private business to be taken up to-day, that we may take up the resolution providing for the printing of the returns of the Seventh Census. We have made great progress in the private business before the Senate. I suppose we have passed fifty private bills, and have scarcely touched the general Calendar. This resolution, to which I have referred, ought to be acted upon. We have to provide for the printing of the census; and I hope we will take up the resolution this morning and dispose of it.

Mr. BADGER. I hope the motion of the Senator from California will not be agreed to. This day has been set apart by the order of the Senate for the consideration of private bills, and I hope the order will be adhered to. The Senator from California will recollect that we are certain to pass public bills. There is no doubt about them. But if we allow private bills to be thrown aside, week after week, Congress will adjourn without disposing of the applications of private citizens for justice from the Government. I hope we will adhere to the Private Calendar.

Mr. GWIN. I have but a single remark to make in reply to the Senator from North Carolina. Never, in the history of the Government, have so many private bills been passed at such an early period of the session. We have not passed half a dozen public bills, while we have passed at least fifty private bills. Our Calendar of private bills is nearly clear, and we have passed more private bills this year than ever before have got back from the House of Representatives. I am as much in favor of acting on all these private bills as the Senator from North Carolina, but I wish also to attend to the public business. I would call the attention of the Senate to one fact: Three or four Senators have the floor with unfinished speeches on various questions, which will occupy the whole of next week.

Mr. BADGER. I am one of those who have unfinished speeches, but I am willing to give up my time to private business.

Mr. GWIN. The Senator from Tennessee [Mr. BELL] has the floor upon an important question. The Senator from Rhode Island [Mr. CLARKE] has the floor on his resolutions in regard to the foreign policy of the Government. The Senator from Michigan [Mr. CASS] has the floor on the same subject. The Senator from Illinois [Mr. SHIELDS] has the floor on the resolution in

regard to the Irish exiles. All of these are important questions, and will occupy the whole of next week. And, as we are far in advance of the House in the Private Calendar, I appeal to the honorable Senator from North Corolina, and to other members, to take up this resolution and dispose of it to-day, for we shall not be able to do so next week.

Mr. HALE. I would make a suggestion which, I think, (if the Senator from California will give me his attention,) will obviate all diffculties. It strikes me that this resolution, although it purports to be a public matter, is nothing more than a private bill for the relief of Donelson & Armstrong, and should be put upon the Private Calendar as such.

Mr. GWIN. I do not care how the object is accomplished.

The PRESIDENT. The suggestion cannot be carried out.

Mr. PEARCE. There is evidently no necessity for pressing the consideration of this resolution to-day. If it could be passed through both Houses to-day, there might be some reason in this. we all know that these returns will not be ready for the printers for a long time to come.

But

Mr. DOWNS. The Senate well know that I am very apt to urge the taking up of these private bills; but I do not like to kill a good thing by having too much of it. We have certainly passed a great many private bills this session; and now, since we have so many special orders on hand; since we have so many debates to come up, one after another, I think we can, without doing injustice to private claimants, devote this day to the consideration of the subject mentioned by the Senator from California, and get clear of it. We have some half dozen subjects coming up, one after another. One is debated, and then it goes over, till we forget all that has been said on it; and when it is called up again, all that has been said must be gone over again. We have gone pretty deep into this printing matter. We went into the merits of the subject yesterday. But if it is postponed, and not acted on to-day, everything that was said yesterday must be gone over again. I therefore hope that the motion of the Senator from California will be agreed to.

Mr. BUTLER. If we have rules, I hope we will observe them. I came here to-day for the purpose of attending to some private claims. I have none for my own State, but there are private claims, which appeal to the justice and liberality of the Senate, and which ought to be attended toclaims that are founded far more in justice, than the one now urged upon the pretext of being a public measure, when in fact it is a private bill. I do not intend, by my vote, to give a preference to this resolution to appropriate money to these gentlemen, before applicants, who are standing at the door there, and whom I have just left, appealing to the justice of the Senate. I hope, if we have rules, that we will observe them.

The PRESIDENT. It is not a rule, but merely an order, which requires Friday to be set apart for the consideration of private bills.

Mr. BORLAND. I desire to call the attention of the Senate to the fact that I urged upon them some time ago, when a similar proposition was under consideration, that these discussions are the strongest argument we can have for observing the order of business upon the Calendar. I believe it was the general understanding that we should pursue the order of business upon the Calendar, and take up subjects as they are in their order. Í would remind Senators now, as I did on a former occasion, that it has almost uniformly been the case, when propositions of this sort are moved, that more time is consumed in discussing the question, whether we will disregard the rules, and take up business out of order, or follow the Calendar, than would be consumed in passing the measures themselves. I do hope that we will follow the rule that has been adopted, and take up business upon the Calendar in regular order. We shall then do justice to all parties, and advance more rapidly the public business, than by this irregular mode of proceeding.

Mr. ATCHISON. I trust the order of the Senate will be adhered to. The Senator from Louisiana is not so unsophisticated in this business as he has been charged to be. I think that that Senator was not present on the last private bill day; and we had previously, I believe, disposed of most

of the private bills in which he was interested. I believe we had disposed of all the private bills in which he felt an interest, except one, and I am told that that looks very squally, and that it is doubtful whether or not it will pass. I do not make any charge against the Senator from Louisiana. I know that he is generous. I know that he, of all men, is least implored by supplicants; but still, without knowing it, these things do operate, even upon the oldest, the most grave and the most honest Senators. I have felt these little anxieties myself, about having private or public bills, in which I have felt an interest, taken up and disposed of, without paying regard to the convenience or the wishes of my fellow members of the Senate. I am willing to make all my own business special orders, and give them precedence over all other bills: and when the business which I have specially under my care is disposed of, I feel the utmost indifference as to what shall be done in regard to other bills.

Now, we made an order at the commencement of this session, at the instance of my friend from Maryland, [Mr. PRATT,] and my friend from Louisiana, setting apart this day for the consideration of private claims. They were the principal advocates of that order. And now, the Senator from Louisiana is the first man who is willing to dispense with it, for the purpose, as was well remarked by the Senator from South Carolina, of taking up a mixed matter, that is partly private and partly public. The printing of the census returns is a public consideration; but who shall do it-the gentlemen named in the resolution, or others-is certainly a private matter to them. I think it has been demonstrated that there is no necessity of hurry in regard to that resolution. printing of the census returns may as well be ordered next week, or six weeks from this time, as

now.

The

Mr. DOWNS. The Senate may rest assured that I could not have been actuated by the motives which the Senator seems to suppose; because it happens that on last Friday I was absent, when I ought to have been here; and on that day the only bill in which I felt any particular interest was postponed on account of my absence. So that if

I want

had any interested feeling about this matter, it would lead me to favor the taking up of private bills to-day, in order to remedy my negligence on last Friday. I think the inducement which I stated at first was sufficient. I think we ought to take up this measure and dispose of it. There is no urgency in regard to these private bills. No gentleman has named any particular bill which requires action at this moment. We have already passed as many private bills as will occupy the House of Representatives for some months to come. this resolution to be disposed of. Let us vote on it at once. Let us not be fighting it off in this way. We have had talking enough about it; and I want gentlemen to come up to the mark and vote on it, and tell us what they are going to do in relation to it. If they intend to vote against it, let them do so. They have a perfect right to do so. But let the resolution be disposed of at once; and then let us go on with other business. Every one understands the resolution. Every one knows what it is. It has been discussed sufficiently. Let us dispose of it at once and go on with other business. I hope that it will be taken up and acted upon to-day.

Mr. SOULE called for the yeas and nays; and they were ordered; and being taken, resultedyeas 16, nays 28; as follows:

YEAS-Messrs. Bradbury, Brodhead, Clemens, Dodge of Wisconsin, Dodge of Iowa, Douglas, Downs, Felch, Gwin, Houston, Jones of Iowa, King, Mallory, Rusk, Sebastian, and Shields-16.

NAYS-Messrs. Atchison, Badger, Borland, Butler, Clarke, Davis, Dawson, Fish, Foot, Geyer, Hale, Hamlin, Hunter, James, Jones of Tennessee, Mason, Miller, Morton, Pearce, Pratt, Seward, Smith, Soulé, Spruance, Sumner, Underwood, Upham, and Wade-28.

IRA DAY.

The Senate proceeded to the consideration of the bill for the relief of Ira Day, of Vermont. This bill was under consideration by the Senate as in Committee of the Whole on Friday last when the Senate adjourned, after agreeing to a motion to strike out the words " together with the interest

ation in relation to it. I therefore desire, as that Senator is not in his seat, that the bill may be passed over for the present. I have been told that he had ascertained that there was an adverse opinion of the Attorney General in a case precisely similar, and that there have been two adverse reports in this very case. I do not know that this IS 30. I have been told so; and if that is so, I think we ought to pass the bill over until the Senator from Delaware may be in his place.

The PRESIDENT. The Chair will state that when a motion is made to take from the files of the Senate any memorials or papers, an adverse report having been made, the Chair puts the question; and according to a rule of proceeding here, these papers cannot be again presented unless they are accompanied by new matter, and some cause be shown by the party presenting them why they should not have been so reported upon.

A SENATOR. There has been no adverse report in this case.

Mr. HUNTER. I know nothing about the matter personally. All I know is what I have learned from the Senator from Delaware.

Mr. UPHAM. There has never been any adverse report in this case.

Mr. RUSK. I do not know of any adverse report. There have been, if I recollect aright, two, or three favorable reports in this case.

Mr. UPHAM. There was one occasion on which the committee were discharged from the further consideration of this matter; but there never was an adverse report.

The consideration of the bill was passed over informally.

DAVID C. CASH AND GILES U. ELLIS.

The Senate then proceeded, as in Committee of the Whole, to the consideration of a bill for the relief of David C. Cash and Giles U. Ellis. This was a bill from the House of Representatives, with an accompanying report, synopses of which have already appeared in the Globe. It was adversely reported upon by the Senate Committee on Milítary Affairs.

The PRESIDENT. Will the Senate agree to the report?

Mr. BADGER. The question, I suppose, does not come up upon the report, because the bill is before us.

The PRESIDENT. The bill is before the Senate.

Mr. BADGER. I suppose the Senate will signify their concurrence in the report by rejecting the bill.

The PRESIDENT. That is precisely the question. If they reject the bill they will concur in the report.

Mr. BADGER. I would like to hear the report read.

The PRESIDENT. There is no written report from the Senate committee. There is a report from the House committee. The Senate committee have merely reported by an indorsement upon the bill. Let the bill be read.

The bill was accordingly read. The PRESIDENT. The Chair has already stated that there is a report made by the House Committee on Military Affairs, and it will be read if any Senator desires it.

Mr. RUSK Let the report be read.
The report was read accordingly.

Mr. SHIELDS. The Committee on Military Affairs reported adversely on this case, but have made no written report. One reason for not presenting a written report was, that in a case of this kind, it is almost impossible to do so; and another reason was, that the report of the committee of the House of Representatives, which has just been read, is of such a character, that had we made a written report, we must have contradicted that report.

thereon.

66

seems they were unable to furnish any such vouchers. The Department, therefore, instituted a suit against them, and then they come and make affidavit that they were not acting really in that capacity, officially, but were acting in their individual capacity, and were not, therefore, responsible as officers of the Government, but only to the officer whose agents they were, and whose name is mentioned in the report of the House of Representatives. They claim that they accounted with him, and left him to account with the Department. Now, the papers on file show that their receipts were given to the Department, as quartermaster and commissary. They received the property of the Government in that capacity, and could not have received it in any other. They took that property, and distributed it in that capacity; and they turn round afterwards, when called upon to account to the Government, and deny the official character which they had assumed to obtain the property, and make affidavit, that while they stated that to the Government, they were merely acting as agents of some other man. How this bill passed the other House, I cannot tell. Now, there are two views which present themselves. In the first place, there is a suit in course of prosecution against them. Let them show, when they defend that suit, that they were really acting in the capacity in which they pretend they were acting here. I have consulted the Department, and I am informed that the Department will go on to prosecute the suit. If the statements they make are true, they can exonerate themselves; and if the statements are false, of course they will be held responsible to the Government for the amount of money out of which they actually cheated it. I move that the bill be postponed indefinitely. Mr. UNDERWOOD. I move to reject the

bill.

Mr. PRESIDENT. The question must be on concurring in the report.

Mr. SHIELDS. A motion to postpone indefinitely will answer the same purpose.

The PRESIDENT. Certainly.

Mr. RUSK. I think the Senator is laboring under a mistake, as I understood the subject from hearing the report read. Judging from the report, this seems a very clear case of merit. As I understand, this man Crum was acting as quartermaster and commissary. The applicants here were, the one as lieutenant, and the other a private soldier, and both employed to act as the deputies of Crum, the one as quartermaster and the other as commissary. This frequently occurs, and it seems the House of Representatives are sustained in this matter by the affidavit of Crum himself, that he employed these men to act as deputies, and required them to report all their proceedings to him, as the responsible officer of the Government. That is what I understand from the report; and it seems that when these individuals applied to be paid for their services, not as quartermasters or deputies, but as soldiers, the Government refused to pay, because this was an unsettled account. The Committee on Military Affairs seems to think that, because they signed themselves deputy quartermasters, it is conclusive evidence against them.

can.

Mr. RUSK. I was engaged a moment ago when the Senator from Illinois [Mr. SHIELDS] was making his statement, and did not hear what the point was.

Mr. BADGER. With the consent of the Senator from Illinois, and if the Senator from Texas will allow me, I will explain that point to him. There is an action at law, brought by the Government of the United States, now pending against these men. The matters which they set up in their petition, as reported by the House committee, furnish, if true, a complete legal defencenot merely an equitable defence, but a complete legal defence to the action. Then, the inquiry is, why should we relieve them upon an ex parte examination, when the question is now pending between them and the Government before a legal forum, where these questions can be better heard and more fully and satisfactorily decided than they can be here? If the facts, as they represent them, are true, they will obtain a verdict; and if they are not true, or not established, of course the verdict will be against them.

Mr. RUSK. The honorable Senator from North Carolina appears entirely to misunderstand the bill.

Mr. SHIELDS. Let the question be tried upon the pending action; and it will then be quite time to give them relief when a verdict has been rendered against them.

Mr. RUSK. I must repeat, that Senators appear entirely to misunderstand the object of this bill. The bill is not designed to relieve these men from any responsibility which they may have incurred to the Government of the United States by misappropriation of this property-not by any means. It is only to pay them what appears to be due to them, as shown by the books of the Department, for their services, the one as a lieutenant and the other as a private soldier.

a

Mr. BADGER. But if these men already owe the Government anything, they ought not to be paid the money which this bill proposes to pay them. That question is now pending, and it would only be proper to let this bill lie over until that question is decided.

Mr. RUSK. And if the Government should not obtain a verdict against them, how are they to succeed in obtaining their pay?

Mr. BADGER. By bringing in their claim. Mr. RUSK. How can that be done after the Senate have rejected the bill? I have not seen this report, but, from the reading of it, it strikes me as being a clear case of merit, in which these men simply ask payment for services rendered. If you reject the bill, you must disbelieve the affidavits of these three men-Crum, Cash, and Ellis. I therefore move to postpone the further consideration of this bill until to-morrow, in order that we may have an opportunity of giving it a fuller examination. It is but a small matter. The amount involved is not considerable, and is hardly worth the trouble which must be undertaken by these men to obtain it; but I would not like to do what appears to be injustice even in a small mat

ter.

very properly refused to pay the amount of money which might otherwise be due to these persons, on the ground that they are debtors to the Government to a large amount. They say that they are not debtors; and if their statement is true, they can defend themselves in an action at law against the Government. If their statement is false, they are not entitled to any relief; and if it be true, they will undoubtedly obtain it. If it is found by the decision in the action, to which reference has been made, that they do not owe the Government, then their pay will be given to them at once, and we will have no difficulty in passing a bill for their relief.

Mr. BADGER. If the Senator from Texas will allow me, I will add one word in further exMr. SHIELDS. These two men were at dif-planation. The officers of the Government have ferent posts, acting in the capacity which I have stated. They drew from Colonel Hunt all these supplies. The man whom they now pretend they acted for, whose name is Crum, became a defaulter, has never accounted to the Government, and never After he became a defaulter, and they were called upon to account to the Government, they turn round and insist that they acted as the agents of Crum; and he himself admits it, because he is a defaulter and owes so much that he can never pay the Government. I will ask honorable Senators to look at the papers and at their own receipts as reported from the Department. If the statements they make be true, they have a good legal defence. I will ask any of my honorable legal friends here if the facts reported are not a good legal defence in any court in the United States?

Mr. BADGER. Certainly they are.

Mr. SHIELDS. Then if they can maintain that defence, why should they come here, in anticipation of the decision, for relief? I look upon that single point alone as being enough to condemn their claim.

Mr. BADGER. That is the point in the case,

Mr. RUSK. Well, I move to postpone the further consideration of the bill till to-morrow. The amount is so small that it is scarcely worth the trouble of these men to come here to get it.

Mr. SHIELDS. I wish to say a single word to my friend from Texas. I would be as unwilling to be unjust to any poor soldier as the honorable Senator himself. But we examined this matter very candidly in the committee, and it was unanimously agreed to report as we did. I regret that we felt compelled to do it. We did it from a

sense of justice to these men, in view of the facts presented to us.

The PRESIDENT. The Senator from Texas moves to postpone the further consideration of the question till to-morrow.

Mr. BADGER. Which question has priority?

The PRESIDENT. The question on the motion to postpone till to-morrow.

The question was then taken, and it was not agreed to.

The PRESIDENT. The proposition now is to postpone the consideration of the bill indefinitely. The motion was agreed to.

THOMAS H. LEGGETT.

Mr. SEWARD. During my absence a bill for the relief of Thomas H. Leggett, as I am informed, was arrived at on the Private Calendar, and was laid on the table. I now call it up in order that it may take its place.

Mr. HAMLIN. I think, in justice to the Senator from New York, this bill should be considered now. It was arrived at in its order, and in consequence of the absence of the Senator it was laid upon the table.

The question was taken on the motion to take up the bill, and it was agreed to.

Mr. HUNTER. This is a bill for refunding duties, as I understand it, and I should like it to

lie over for the present.

Mr. SEWARD. It is not taken up with a view to action, but simply that it may take its place on the Calendar.

MRS. E. A. M'NEIL.

The Senate next proceeded to the consideration of the bill for the relief of Mrs. E. A. McNeil, widow of the late General John McNeil, as in Committee of the Whole.

Mr. FELCH. The Senator from New Hampshire, who takes an interest in that bill, is sick and not able to be present. I therefore move that the bill be passed over informally.

The motion was agreed to.

JOHN ERVIN.

The Senate then resumed, as in Committee of the Whole, the consideration of a bill to confirm the claim of John Ervin to a certain tract of land in the Bastrop Claim.

Mr. DOWNS. I will state, Mr. President, that the Senator from Kentucky [Mr. UNDERWOOD] desires to go into an investigation of this question. He is not now in his seat. On his proposition the bill was laid over last Friday; and, as he is not here now, perhaps it would be as well to pass the bill over.

Mr. BADGER. I hope we shall not lay this bill over any more.

Mr. DOWNS. I dislike to take up the bill in the absence of the Senator from Kentucky.

Mr. DAVIS. I have the impression that many bills of this description have been passed. Is not that so, sir?

Mr. DOWNS. Many bills very much like it have been passed. Mr. DAVIS. I am not aware that this is different from other cases. If so, I wish the Senator from Louisiana would state the fact, Mr. DOWNS. It is analogous to many bills which passed at the last session. Some few were excluded by the rules which were adopted at the last session. It is in the same spirit as those that have been passed, though not strictly and technically within the rule. The reading of the report, which is very brief, will show what it is.

Mr. DAWSON. Read the report.

Mr. FELCH. I think it will be better to let the bill lie over for the present, till the Senator from Kentucky [Mr. UNDERWOOD] is in his seat, as he has intimated that he wishes to express his views upon it. My impression is, that the bill gives a preemption right to a small portion of land. But

I have not examined the question, on account of the fact that the honorable Senator from Kentucky had taken it in charge; and I think it will be better to let it lie over till he is present to attend to it. I make that motion that it be passed over informally.

Mr. BADGER. I hope not. I wish to say to the honorable Senator from Louisiana, [Mr. Downs,] that if he chooses to have it lie over, I

have nothing to say. But if it does not pass in consequence of lying over, he will know at whose door the blame will rest.

Mr. DOWNS. Then I will not consent to let it lie over.

Mr. FELCH. The law which is referred to in that bill specifies two classes of cases to which relief may be granted. The one, those who claim under Bastrop, holding under a Spanish grant, and his assignees; and to that class of persons there is given six hundred and forty acres of land without any compensation to the United States for it. It was intended to relieve a class of persons who purchased under an old Spanish grant, declared to be now invalid.

The second class of cases embraces those persons who, without having any claim by way of a title from Bastrop, are entitled by virtue of possession to a preemption right to one hundred and sixty acres, including their improvements. If I understand this matter correctly from hearing the report read, this Ervin does not trace back his title from Bastrop; he has merely occupancy as the foundation of his claim, and his case, therefore, comes within the category mentioned in one of the last sections of the act, giving relief to those who have occupied lands for a certain number of years. If no legislation is had, he will be entitled to a preemption right to one hundred and sixty acres including his improvements. If this bill passes, it will put him on the same footing exactly as those who received a title from Bastrop. As I stated before, my impression is, that it is a case in which the preemption right ought to be granted. He will then receive one hundred and sixty acres of land under the preemption, and no more. This bill proposes to give him six hundred and forty acres, and also to relieve him from paying any compensation to the Government for it. It seems to me he should be allowed to remain under the rights which he now has; or, if it be desirable, let him have a preemption right. But I see the Senator from Kentucky is now in his place, and 1 yield the floor to him.

Mr. UNDERWOOD. I believe the honorable Senator from Michigan has stated everything that I have to state upon the subject. From the examination which I have made, this gentleman, if this bill passes, will get lands for nothing to the amount of six hundred and forty acres, when, according to legislation, he would be entitled to a preemptive right of one hundred and sixty acres.

see no reason why we should enlarge the amount and give him that difference. The grounds on which this claim was placed, the other day, was this: A man by the name of Ballinger lived upon the land that this memorialist has occupied. Ballinger, according to the statement of the memorialist, purchased the land of Bastrop, and paid him for it. The memorialist says he intended to purchase it from Ballinger, but he has never paid him a cent. He says Ballinger abandoned the land, and has absented himself for a long time, and has never received anything. Now, what condition shall we be placed in if Ballinger should hereafter come forward and say, "I want Congress to compensate me for this land, which I purchased of Bastrop;" and suppose he says, "You have compensated everybody else, and allowed them a tract of land, why not pay me? Will you take advantage of my absence after I paid Bastrop, and plead the statute of limitations upon me?" Government has never done that. Now, if Ballinger comes forward and says, "You agreed by your legislation that all those who purchased from Bastrop and paid him for that land should hold it" what answer will you give him? You must say to him, "You are to be put upon the same footing as other individuals." Now, this individual simply asks Government to do for him what Government would do for Ballinger, if he were here. do not see any obligation for such a course except upon the ground which is contended for, that he has occupied the land till, by the laws of Louisiana, he could set up a title by prescription against Ballinger. And as he can prescribe against Ballinger, he wants you to cut off Ballinger, and let him be placed with reference to Bastrop as Ballinger and yourselves would be placed. It seems to me not just to let a man come in and make out a title, when he says he has not paid a cent, but merely intended to do it, and then set up a title by prescription against a man from whom he intended to buy the land. In this view of the case I am

willing to say to this gentleman, "Take your head right, as we call it in Kentucky, or, as it is called here, your preemption-take your one hundred and sixty acres of land by preemption, pay for it as your neighbors have done, and with regard to the excess, you have no right to it at all." I think we should reject this bill, and let the law take its

course.

Mr. HALE. As I was one of the committee who reported this bill, I think I can answer the objection of the Senator from Kentucky. The case is an exceedingly simple one. Settlers located themselves upon this land, and among the rest was this man Ballinger; and subsequently this petitioner, who went under Ballinger, intending to purchase his title. He has been there for more than twenty-three years, and Ballinger went off and never made his appearance again. By the bill which you passed last session, if Ballinger were here, he would be entitled to this land; but he is not here. Now, the difficulty suggested by the Senator from Kentucky, does not arise here at all. We do not in any way interfere with Ballinger's title. That title will stand just as good when this bill is passed as it does now. All that we do, is to say that the United States shall not come in as a third party between Ballinger and this man Ervin. Ballinger has a good title, if we do not disturb him; and all that we do in this bill, is to say to this poor old man, that we will keep "hands off," as between him and Ballinger. We say to him, "If you have a good title, keep it, and we will give you ours: or, rather, we will not interfere." It seems to me in that view of the case this bill ought to pass.

Mr. DAWSON. I will merely ask the Senator from Louisiana one question. Did Ballinger ever purchase six hundred and forty acres from Bastrop?

Mr. DOWNS. It is so stated in the papers. Mr. HALE. I believe he purchased a larger quantity than that.

The bill was then reported without amendment, and, on a division, it was ordered to be engrossed for a third reading.

JANE IRWIN.

Mr. JAMES. I throw myself on the indulgence of the Senate, and ask its unanimous consent to take up a bill for the relief of Jane Irwin.

The question was taken on the motion to postpone the prior orders and take up this bill, and it was decided in the affirmative.

The bill was read a second time. It proposes to pay Jane Irwin, the only child of Colonel Jared Irwin, who served in the Georgia State troops from the beginning to the close of the revolutionary war, as an equivalent for services rendered and losses sustained by him, the half-pay of a captain for the period of thirty-five years.

There being no proposition to amend, the bill was reported to the Senate.

Mr. PEARCE. I should like to have some explanation of that bill.

.Mr. HALE. Let the report be read. It will explain everything.

Mr. COOPER. I will state what the substance of the report is.

Mr. BUTLER. I wish to ask if the committee were unanimous in their report?

Mr. COOPER. They were last year. The father of Jane Irwin was an officer in the Georgia line of the Army, and performed most meritorious service during the whole of the revolutionary war. He was in many engagements both in Georgia and the Carolinas. After the close of the war, he removed to the frontiers and was often engaged there in the Indian wars, and performed service not only as a soldier, but was eminently useful in subsisting troops in that out-of-the-way country. He lost a very large amount of property, and never received from the United States a cent by way of compensation for his services or the losses he sustained.

The present applicant is the only surviving child

of General Irwin; who was afterwards, for several

successive terms, Governor of the State of Georgia. If ever a meritorious claim came before the Senate, that does not fall within the ordinary rule,

this is one.

The report was then read. The bill was reported to the Senate without amendment, and ordered to be engrossed for a third reading.

COMMODORE WARRINGTON

The Senate next proceeded, as in Committee of the Whole, to the consideration of the bill for the relief of M. K. Warrington and C. St. J. Chubb, executors of Captain Lewis Warrington; which

was read.

It proposes to authorize the Secretary of the Navy to open an account with M. K. Warrington and C. St. J. Chubb, executors of the late Captain Lewis Warrington, and the officers and crew of the sloop-of-war Peacock, their legal representatives and assigns, on account of one moiety of the sloop Epervier, her tackle, implements of war, and specie on board at the time of her capture in 1814, which moiety was, by mistake, paid into the Treasury of the United States; and to settle their respective rights therein, according to the act of April 23, 1800, for the better government of the Navy of the United States; and that the sum, when so settled, shall be paid out of any money in the Treasury not otherwise appropriated.

Mr. BRADBURY called for the reading of the report of the Committee on Naval Affairs; from which it appears, that the same subject was referred to the Committee on Naval Affairs at the first session of the last Congress, when a report was made, briefly setting forth the facts out of which the claim originated, which the committee adopt as a part of their present report, and recommend the passage of the bill without amendment. The committee reported-on the memorial of Lewis Warrington, for himself, officers, and crew of the sloop-of-war Peacock, and praying the balance of prize money due them for the capture of the British ship Epervier-that in the month of April, 1814, the British ship Epervier was captured by the Peacock, under the command of the memorialist, and was afterwards, in the district court of Georgia, condemned, with its tackle, ammunition, &c., as a prize of war to the captors, and a sale by the marshal was ordered to be made; that there was on board the Epervier a large amount of specie, which was condemned as prize money. The Epervier was a vessel of equal force with the Peacock, as appears by the report of Captain Warrington, by the report of the arrival of the prize at Savannah, by the report of the officer in charge of it, by negotiations between the Department and Captain Warrington for the purchase of the prize, and finally by the decree of condemnation to the captors only.

By the fifth section of the act of Congress of April, 1800, for the better government of the Navy of the United States, it was enacted that all the proceeds of captured vessels which shall be adjudged good prizes, when of equal or superior force to the vessel or vessels capturing them, shall be the sole property of the captors; but when of inferior force, they shall be divided equally be tween the Government and the captors. It is, therefore, certain, in the opinion of the committee, as well from the true facts of the case as from the decree of condemnation, that the officers and men of the Peacock were entitled to the whole of the proceeds, and the same should have been paid over to them by the marshal. But this was not done. On the contrary, the marshal, from some mistake ion between the United States and the captors, and or misapprehension, treated it as a case for a divistherefore paid one moiety to each. The committee were therefore of the opinion that the moiety received by the United States, being undoubtedly the property of the captors, ought in justice to be accounted for to the true owners. The lapse of time since the erroneous payment was made might afford some objection to the relief if the ground of the claim was uncertain or not proved; but all the facts and the ground of the claim stand proved by official papers which cannot be mistaken. They can be ascertained now with the same unerring certainty as at the time of the transaction. These proofs accompany the memorial submitted with the report. The memorialist asked only the principal of the sum; and the right being clear, the justice of the demand, instead of being weakened, States have had what originally belonged to the is strengthened by the great length of time the United captors. The claim grew out of one of a series of victories upon the ocean and lakes, which shed such glory upon our country, and must ever be bearing the name of an American. The commitremembered with patriotic pride by every one tee, in view of the considerations named in the report, accompanied it by a bill.

Mr. BRADBURY. I believe a very considerable amount is involved in this bill. I recollect having examined the question when it was before the Senate some three years ago. The facts are not very fresh in my recollection at this time; but I think that the application for relief on the part of Commodore Warrington and his associates is of a somewhat recent date.

Mr. BADGER. It is.

Mr. BRADBURY. I think it is a little remarkable that the captors of a vessel, which had on board a valuable cargo of specie, should have so long delayed their application.

Mr. BADGER. If the Senator will allow me, I will make a statement, which will cause the remarkableness to disappear. The case is simply this: In April, 1814, Commodore Warrington, then in command of the American ship Peacock, a sloop-of-war of eighteen guns, attacked and captured the sloop of war Epervier, also of eighteen guns. The Epervier was sent into the port of Savannah, in charge of a prize-master, for condemnation. She was condemned in that port, and a decree of the court directed the whole amount of the capture to be paid to the captors. The honorable Senator [Mr. BRADBURY] shakes his head. It is very easy to do that; but if he will read the papers he will find that it is so. The decree of the court directed the whole of the money to be paid to the captors, and not one cent to the United States. Commodore Warrington did not quit his cruise, and come home to attend to his pecuniary interest, but continued to prosecute his cruise against the enemies of his country. Consequently he was not here at the time the decree was made and the payment made under the decree. The marshal of the district of Georgia, whose duty it was to pay the money to those to whom it was awarded by the court, to wit: the captors, instead of doing that, paid one half the money to the prize agent, and othe other half into the Treasury of the United States. The ships were of equal force. That is proved, in the first place, by the decree directing the money to be paid to the captors; because if the captured vessel had been of inferior force, it was the duty of the court to have decreed one moiety to the United States. It is proved, next, by the fact that the vessels were reported by the captors to be of equal force; by the fact that the Secretary of the Navy at the time negotiated with Commodore Warrington for the purchase of the captured sloop, for the Navy of the United States, as being the property of the captors; and by the fact that in the Navy Register, after that ship became ours by capture, she is rated as a sloop of war of eighteen guns, as was the Peacock. These are the facts. Under the law, it is perfectly clear, that that being the state of the case, the captors were entitled to all the money.

But I said that I would give the Senator from Maine an explanation of how it happened that this claim was not preferred for many years. I take pleasure in doing so; because the gallant officer and most excellent gentleman in whose name this application was made at the last Congress, and who is now no more, exhibited in relation to the whole transaction an honorable delicacy and propriety of deportment that add additional value to the character he earned by his integrity and gallant service in the cause of his country. The same question was asked when this bill was before the Senate at the first session of the last Con

gress, and I was unable to answer why the appli

cation had been deferred. I was unable to answer, because that gentleman, during the whole time this bill was in progress in the Senate, though he knew I had taken charge of it, and reported it from the committee, and that upon some objections taken to it on its first coming up, it had been postponed, and that I had waited three months before I called it up for action, never came near me, never opened his mouth to me upon the subject; and he was willing, I believe, to have lost every penny, rather than place himself in the attitude of a man who would descend, by application to a member of a committee, to obtain the successful prosecution of a claim however honorable and just. But after the bill had passed the Senate, and when it was in the House of Representatives, I saw Commodore Warrington here one day, and took occasion to ask him how it happened that the claim had not been presented sooner. He gave me the following statement: "I went in prosecu'tion of the cruise in which I was engaged when

I captured the Epervier, and sent it into port for 'condemnation. When I returned, I found that 'but one half the prize money had been paid into 'the hands of the agent. I knew it was wrong. I applied to a distinguished and honorable gentleman, then a member of Congress from Virginia, and asked him to institute some proceedings for my relief. He said to me, it is impossible, 'Commodore, to go behind the decree."" He took it for granted, and so did Commodore Warrington, that the marshal had paid the money according to the decree. He had no idea that the marshal, upon a decree in favor of the captors alone, had paid one half the money to the United States, but supposed that it was a mistake of the judge who pronounced condemnation. There the matter rested; and years and years elapsed before it was discovered that the decree was right and the payment wrong.

That, sir, is the explanation which I have to give; and I wish to say, that though the amount is large, there has not been a claim, in my opinion, from the foundation of the Government, whether for a million dollars or for a penny, more justly due to more honorable men who have rendered important service to the country. It has been too long delayed. The Government has had possession and use of the money for forty years. All that is asked is the simple return of the money without

interest.

Mr. BRADBURY. I have heard the explanation of the honorable Senator from North Carolina with pleasure. He speaks so well that I always listen to him with a great deal of pleasure. I think, however, that we should examine this subject carefully, and see why it is that the claim was suspended so long without an application for relief. It looks a little singular to me that for some forty years an individual, residing at the capital for a very considerable portion of the time, should not be aware of the fact that the Government was indebted to him and others with whom he was associated, in a large sum of money.

Mr. BADGER. I tried to explain it. I imagine the Senator did not listen to me.

Mr. BRADBURY. If the Senator wishes the floor, I will yield it.

Mr. BADGER. Not at all.

Mr. BRADBURY. I suppose the act which grants to the captors, in cases of the capture of vessels of an equal or superior force, the whole property captured, was intended as an incentive, and to reward those in the Navy for extraordinary exertions. Technically, the contest from which this claim arises, was between vessels of equal size; but by an examination of the facts it will be found that the capture was made without much exercise on the part of our ship, and the captured vessel was, in fact, inferior in size, inferior in men, and inferior in its armament; so that the amount which was received by the captors was the amount to which they were fairly entitled, and was all to which they were entitled. If we, disregarding the technical rules, look to whether the vessels were of equal size, we shall find that the British ship was inferior in metal, throwing, I think, something more than a hundred pounds less on a broadside. It was inferior in men; the American ship containing nearly double the amount of efficient men. The prize was taken so easily that there was hardly a contest. Not an individual was lost in the fight; I believe there were one or two wounded. I apprehend that, at the time, the captors were perfectly satisfied with the decree. I think that, after so long a time, during which this claim has been permitted to slumber, it is at least expedient that the Senate should pause before they pass the bill. If I supposed that the claim had substantial merit, I should certainly concur with the Senator from North Carolina, that lapse of time is not a sufficient bar to it. Í submit these remarks, not from a desire of doing injustice to the service of the gallant officer who commanded the American ship at that time, but from a sense of duty.

Mr. BADGER.

The honorable Senator from Maine occupies, upon this subject, precisely the position usually taken by British writers, in depreciating the value of the victories gained by our naval force over the British during the war of 1812. How does the Senator undertake to know whether these vessels were of equal force or not? The Secretary of the Navy at that time thought they were of equal force. They were reported to the

Department as of equal force. The judge who ordered the condemnation thought they were of equal force. And now, we are told that this victory, which we had heretofore thought reflected some glory upon our arms, was nothing; that there was not a contest; that there was twice the number of men in the American ship that there was in the British; and that the ships were of a different weight of metal. I hope the Senate will not add to the injustice of declining to pay this money, indignity of such a reproach upon the gallant men concerned in the accomplishment of that deed.

the

The decree of the court was, that the money should be paid to the captors. Not one word was said about the United States. The marshal, by a mistake, I suppose, instead of paying the whole of the money to the captors, paid half of it to the United States. That is the case. The United States got so much money, by a mistake of the marshal, which belonged, under the decree, to the captors. If it had been the case of an individual, an action could have been brought by the captors, and the money recovered. But the United States cannot be sued. I have stated the reason why the claim has been delayed. Commodore Warrington, knowing the money had been paid in a wrong manner, applied to a gentleman from Virginia, who, presuming the marshal had followed the decree, stated that they could not go behind that decree. But it turns out that the decree was right, and the payment by the mashal wrong.

Mr. BRADBURY. It is a long time since I looked into the papers of the case. I had a different impression in regard to the decree. Probably the Senator is right in his statement. I should like to have it read.

The decree was read, as follows:

The United States vessel of war Peacock vs. $117,903, captured in the Epervier, libeled prize.

The United States vessel of war Peacock, commanded by Lewis Warrington, Esq., in the late capture of his British Majesty's sloop of war Epervier, brought into this port, captured also the sum of $117,903, which has been libelled by the district attorney. The usual monition has been published, and proclamation made; and no claim appearing, it is ordered, adjudged, and decreed that the sum of $117,903 be condemned as a prize of war, to the captors, to be distributed as the law directs, after costs and charges. W. STEVENS, District Judge of Georgia. The bill was then reported to the Senate without amendment, and ordered to be engrossed for a third reading.

FRANCES P. GARDNER.

The bill for the relief of Frances P. Gardner, reported from the Committee on Pensions, was read a second time, and the Senate proceeded to consider it as in Committee of the Whole.

It enacts that the Secretary of the Interior be required to renew the pension heretofore allowed and paid to Frances P. Gardner, the same to continue for five years, commencing January 1, 1850.

The report of the committee was read, from which it appears that the petitioner is the widow of the late Captain George W. Gardner, of the United States Army, who was killed in the massacre of Major Dade's command in Florida. She was left a widow in destitute circumstances, with two young children to support. Her father, Lieutenant Abraham Fowler, and her brother-in-law, both died in their country's service, and her only near relative-a brother-was at the date of the petition on duty in Mexico. Thus situated, she asked for a continuance of a pension which was allowed her under the act of July 4, 1836. On May 20, 1850, a bill for her relief was reported to the Senate; and the committee have thought proper to report a similar bill, and recommend its pas

sage.

Mr. SMITH. A bill exactly corresponding with the one now before us passed the Senate at the last Congress. It was sent to the House of Representatives, and was not acted upon, I suppose, for want of time. It is exactly analogous to the case of Mrs. Dade, a bill for whose relief has already passed the Senate at the present session. Captain Gardner, who was a native of this city, fell in what is called "Dade's massacre," in Florida; Major Dade being the commander of the detachment, and Captain Gardner the second in command. The circumstances of that massacre are too well known to the Senate to make it necessary for me to advert to the particulars. Mrs. Gardner is a native of my State. She transmitted her application to me, and I laid it before the