disposition of their property; and on these grounds, which are very imperfectly proved, and by entirely ex parte testimony, they now come forward to claim, at the hands of the Government, contingent damages arising out of the acts of Commodore Porter. They say that he destroyed their wood, and they had to abandon certain hogs on the island; that he interfered, by his despotic orders, with their commercial enterprises; that he prevented settlers from coming on the island; that the establishment of martial law by him on the island was an interference with their rights of property, as he refused that any person should build without his authority or permission; that it not only broke up their commercial arrangements, but that it tended to prevent the settlement of the island, retarded its commercial interests, and deteriorated its value. This is the general ground of complaint which is

made.

Now, in point of fact, it appears that for this island they gave $2,000; and they received from the Government $4,000 for the site of a customhouse, $3,200 for ground for the barracks, and $6,800 for other land purchased from them by the Government, making $14,000 paid for property on the island for the use of the Government. They were also paid in 1847 by the Navy Department, for the wood which they alleged was used by the Navy, $3,695. Thus they received altogether from the Government $17,695 and some cents, for an island which cost them but $2,000. The real damage, in my judgment, was fully paid for when the wood was paid for. That is the inference which I derive from the proof in the case.

The learned Senator from Florida, [Mr. MALLORY,] who is a member of the Committee on Naval Affairs, and by whom this bill was reported, well understands that damages at law, even between individuals, may be too remote to be recovered. A great portion of the damages claimed in this case are objectionable on that ground. The allegation that these parties intended and had made preparation to establish salt-works there, which were interfered with by the officers of the Government, is not proved in itself; and if it were proved - it comes under that class of damages too remote, even in the case of individuals arising out of the trespass, to justify the recovery of damages. But there is another ground which, in my judgment, cuts off this claim altogether. The Secretary of the Navy, in February, 1823, instructed Commodore Porter to take possession of the island. An extract from the instructions of the Secretary of the Navy is to be found at page 20 of the report made to the House of Representatives in 1848, and it is attached to the report of the Senate committee. This extract contains all of Commodore Porter's instructions in relation to his duty in regard to this island:

"You will establish at Thompson's Island, usually called Key West, a depôt, and land the ordnance and marines to protect the stores and provisions. If, however, you shall find any important objection to this place, and a more suitable and convenient one can be found, you are at liberty to select it as a depôt."

These were the orders of the Government to the officer. If under these orders for establishing a depôt, the officer, without warrant of law, chose to declare martial law-if he infringed on the rights of the citizens by any arbitrary conduct, the courts were open for relief, and the Government can incur no responsibility for the malversation of its officer or for his acts, beyond his orders and authority. I do not state this merely from my own opinion, but on the authority of a very able and distinguished man, formerly Attorney General of the United States, Mr. Legaré, in an opinion given by him on the case of Sibbald, somewhat similar to this, and which was referred to in the petition of the memorialists. A bill was passed referring, without any rule being laid down, to the accounting officers to settle the accounts of Sibbald for damages, which was a case not dissimilar, but in the particular facts of course not the same as this. Fortunately for the country, Mr. Legaré was Attorney General. He gave his opinion on the case, which will be found in the "Opinions of the Attorneys General of the United States," page 1543. He there lays down the rules which should guide the accounting officers in that case in ascertaining the damages. Among them he lays down this proposition, which I take to be unquestioned in law, and which cannot be contradicted here or elsewhere:

"The damages must not only have been directly caused,

not merely occasioned, by the interference of any agent of the United States, but he must have acted under their

authority. Whatever the agents did beyond their instructions, clearly they did in their own wrong, and the Government is not responsible."

I say, then, that, on the proofs in this case, there is not a single fact shown of any act done to the individual who makes the claim here, by Commodore Porter, which is within his instructions, for which the parties have not been paid. The depôt has been paid for: the site for the barracks and the custom-house has been paid for. The wood alleged to have been taken has been paid for. And there is no other act within his instructions complained of, which is, as far as I have read these papers, attempted to be proved. It is aleged, that by his arbitrary conduct on the islandcontaining altogether about seven hundred acres its value was greatly diminished. It is said that he ordered the proprietors to pen up their hogs; and that in consequence of their inability to do so they were obliged to abandon them. If he gave that order he did it without right. The right could not be derived from the instructions of the Secretary of the Navy. If it was done, it was a violabound by it. If the hogs had not been penned up tion of the rights of property; and they were not and they were used by the Government, the Government would then be responsible. But there is no proof of that. There is no proof as to by whom the hogs were taken. They simply declare that they were abandoned in consequence of an order of Commodore Porter. If he made such an order, it was clearly illegal, and could not have been derived from his power to establish a depôt. That power of his did not give him jurisdiction over the whole island.

Another ground of complaint is, that by the occupation of the island its settlement was retarded. Now, in my opinion, great advantages accrue to these parties from the occupation of the island by the Government. But those advantages seem to be altogether lost sight of. At the time the island was taken possession of by the Government, the report of Commodore Perry shows that it was a desolate island, the resort of smugglers and pirates, and unsafe as a residence. It will be found on page 16 of the report of 1848 of the committee of the House of Representatives, that Commander Perry, in a communication dated March 28, 1822, uses this language:

"Heretofore the Florida Keys have been the resort of smugglers, New Providence wreckers, and in fact of a set of desperadoes who have paid but little regard either to law or honesty. The present establishment, though on a small scale, will, I conjecture, (with the assistance of the settlers,) be enabled to keep these lawless people from this island. But I would suggest the necessity of an early augmentation of force, if it be only for the purpose of enforcing the revenue laws. A gun-boat would be a force sufficient to answer all the purposes required."

There are many other matters contained in the facts stated in this case which are open to comment; but it is not worth my while to detain the Senate by commenting upon them. The fact is certainly not proved in the cases that some of the parties who claimed damages had an interest in the property at the time. They claim that they had an interest; but their interest is not shown. There is also a disconnection in the proof as to many of the facts, which, if it were worth while, I would now comment upon. But I shall not trouble myself with those.matters now.

I wish, however, to refer to a fact which appears to have escaped the notice of the Committee on Naval Affairs of this body, at this session. This claim was originally presented in the name of John Whitehead, who is now one of the claimants. But this is now here as the claim of John W. Simonton. It was before Congress as early as the first session of the Twenty-third Congress. The committee were then discharged from the consideration of the claim; and it was referred to the Secretary of the Navy. At the second session of the Twentythird Congress, the Secretary of the Navy made a report upon it; and that report I ask to have read. It shows that this matter has been fully investigated, and that, too, at a time when there were better means of investigation-while Commodore Porter was living.

The Secretary read the report, as follows:

NAVY DEPARTMENT, December 15, 1834. The Secretary of the Navy, in compliance with the directions contained in the resolution of the Senate of the United States, of the 16th June last, referring the memorial and documents of John Whitehead, and others, owners of Key West, for examination into the facts therein stated, to col

lect the necessary evidence, and report the same, together with copies of such letters and papers in this Department as relate thereto, to the Senate at its next session, has the honor to make the following report:

The parties interested in this case state, that, in consequence of a communication made by them on the 17th December, 1821, representing the peculiar importance of Key West, as a naval station to protect our commerce from pirates, and suppress the slave trade, Lieutenant Perry was ordered, on the 7th February, 1822, to examine said island and its harbors, &c., and, if deemed necessary by him, to take possession in the name of the United States; and that on the 28th March following, he made a report of his proceedings.

That instructions were subsequently issued to Captain Patterson, on the 15th November, 1822, who reported the result of his examinations on the 11th March and 10th July,

1823.

That Commodore Porter, on the 1st of February, 1823, received his general instructions, as commandant of the West India station, and was directed to establish a depôt at Thompson's Island, usually called Key West, and land ordnance and marines to protect the stores and provisions. That the said commander assumed entire control and jurisdiction of said islaud; forcibly appropriating wood already cut, and causing more to be cut down and used, seizing and using, for his officers and men, hogs and sheep running at large, the property of the memorialists; prohibiting the owners and their agents from building or improving without his permission; and enforced military law upon the said island; of which grievances, they state, that they informed the Navy Department by a communication dated the 1st of February, 1825.

In support of these allegations, the memorialists offer the deposition of Griffith W. Roberts; the copy of a letter from Commodore Porter to Lieutenant James M. McIntosh, sworn to by John Whitehead; a letter of Master Commandant M. P. Mix to said Whitehead; certified copies of two letters from P. C. Greene & Co. to Commodore Porter, and the original of Commodore Porter's reply; a certificate of Lieutenant James M. McIntosh, with copy of Commodore Porter's letter to him above referred to, and an imperfect copy of the communication of 1st February, 1825, which are all hereto apnexed, lettered from A to G inclusive.

The records and files of the Navy Department have been carefully examined, but afford no information nor evidenceof the seizures and damages which the memorialists complain that they sustained, nor can any communication be found to have been received from them on the subject, dated the 1st of February, 1825.

The communication of the 7th of December, 1821; the report of the Secretary of the Navy, of the 29th of Decem ber, 1822, to the President; and the instructions to Lieutenant Perry, Commodore Patterson, and Commodore Porter, and the reports by these officers, to which the memorialists allude, are appended hereto, and numbered from 1 to 8, inclusive. All which is respectfully submitted, MAHLON DICKERSON.

Mr. BAYARD. The Senate will observe that the case was fully examined by the Secretary of the Navy at that time, and that the communication containing complaints against Commodore Porter's conduct, which it is alleged that these parties made in February, 1825, was never made. The Secretary states, that after an examination of the records, he could find no evidence of the seizures and damages of which the memorialists complain. He could not find the communication containing complaints against Commodore Porter, said to have been made in 1825; but a mutilated copy of the alleged communication was offered as evidence. This report was made to Congress after a full examination of all the facts and circumstances connected with the claim.

At the first session of the Twenty-fourth Congress nothing was done in regard to this claim. Nothing was done at the second session of that Congress. At the second session of the Twentyfifth Congress the committee were discharged from the consideration of the subject. At the first session of the Twenty-sixth Congress the committee made an adverse report upon the claim of the petitioner, after investigating all the facts. After the report was made, leave was granted to withdraw the papers of the party; and they now bring forward the same claim, and, as far as I can judge, precisely on the same papers, without any additional testimony whatever: at any rate, no additional testimony seems to have been taken since that time. That report was made to the Senate on the 23d of January, 1840 It is report No 109 of the first session of the 26th Congress.

"Mr. TAPPAN submitted the following report: "The Committee on Naval Affairs, to which was referred the memorial of John Whitehead, for himself and others, with the accompanying documents, report:

1st. That the memorialist avers that in December, 1821, he and his associates became the proprietors of the island of Key West, by purchase of a Spanish grant of the 6th of August, 1815; that in December, 1821, they took possession of the island, and held it to the time of filing the memorial.

"2d. That the memorialist represented to the Government of the United States the advantages of Key West as a naval station, and invited its use for that purpose; that in consequence of such invitation, the island was in March or July, 1823, taken possession of by Lieutenaut Perry, acting under orders from the Secretary of the Navy; that

and rendezvous. Such a one could not have been established but by the occupation of the island. This occupation brought the yellow fever among the inhabitants. It prevailed among the sailors, and was introduced among the citizens, and gave to Key West the character and reputation of being a sickly place.

There is no doubt that this occupation of land against the wishes of bona fide owners does create a valid claim agamist the Government for indemnification. But we are told that the claim has been

paid in part or in whole. I undertake to say here in my place, that not the first dollar-not the first cent has ever been paid. It is true that the United States did, years and years subsequent to the occupation of the island, purchase a site for a customhouse. In consideration of the fact that the Government did want the site for a custom-house, the proprietors sold it to them for half the price which it would have commanded from private citizens. Lots adjoining that have since been sold within a very recent period, for a much larger price than that for which the Government obtained the site for a custom-house. The giving, therefore, by the proprietors to the Government of the site for a custom-house at a price less than they would have obtained from individuals, was a favor to the Unied States, and not to the parties. The United States subsequently purchased a site for a barracks, but that was a few years ago, comparatively speaking a long time after these events occurred. They paid, too, for this, a very moderate price much less than an individual would have had to pay in open market. They purchased other sites and occupied other land, and paid for it at very moderate prices; but by doing that they have not refunded any damages which the parties sustained years ago in consequence of the military occupation of the island by Commodore Porter for the Government.

There have been two favorable reports in the House of Representatives on this identical claim. I am not certain as to whether additional testimony has or has not been taken since 1840. I looked over all the testimony in the case, and I there found some testimony taken by myself. When I occupied a judicial station in the State of Florida, citizens came before me voluntarily-merchants and others who resided on the island at the time Commodore Porter occupied it, and as much entitled to credit as any citizens of the United States --and gave testimony, though they themselves were against any large claim on the United States for the occupation of the island, that something ought to be paid. Their testimony is upon record.

So far froin the island being in want of protection before the United States occupied it, it was inhabited, and no pirate has ever put his foot on its soil since it was transferred to the United States by Spain, long before its occupation by the United States as a naval depôt and rendezvous. The idea, therefore, that the United States have paid $17,000 for what cost the proprietors but $2,000, is perfectly untenable. Two thousand dollars may have been the original price negotiated with Salas; but as I understand this purchase, the whole cost to the proprietor, from beginning to end, could not have been less than $50,000. But if it cost only $500-if it were a gift to them, how can that disturb the claim? What has that to do with the claim? Is the measure of damages for the unjust Occupation of the island to be judged of or to be ascertained by the price which the proprietors pay for it? Why the island to-day, or when the United States purchased land to the amount of $17,000, it was worth perhaps a hundred thousand times as much as the parties originally gave for it. It probably could not be purchased for that now. With reference to the southwestern trade, the whole trade of the Gulf and of the Spanish Main, it is one of the most salient and important positions in the United States. I will here say, that in 1852, judging from the past, judging from the statistics already before us, $200,000,000 worth of property of the Eastern, Middle, and Western States, will pass in sight, and almost within hailing distance of this very island-the Eastern States in shipping, the Middle States in manufactures, the Western States in agricultural products. It was in view of its salient position that the owners and occupiers of the land purchased it from the original proprietors. Now, because they were ahead of their time, and obtained this important position for a moderate sum,

no matter what that sum may have been, are we to be told that the United States will not pay damages for the unjust occupation of the island?

Mr. SEWARD. I wish to inform myself upon this bill, and therefore I wish to direct the attention of the Senator from Florida to a point about which I require some information. I see that the bill provides that the accounting officers, in calculating these damages, are to take into consideration the benefits and advantages which accrued to the United States from the occupation of the island of Key West, as well as the injury suffered by its owners. I am not clear that the benefits and advantages resulting to the United States are, under the Constitution of the United States, a legitimate inquiry in ascertaining the value to be paid for private property taken for public uses. I would like to hear the Senator on that point. Mr. MALLORY. The bill introduced by the Naval Committee is precisely in so many words the bill reported to the House of Representatives by the Naval Committee, at a former session. In reporting that bill, the Naval Committee did not feel disposed to make any alteration in it; but I am perfecily willing that the clause objected to by the Senator from New York shall be stricken out. All I aim at is, that the Government should display some disposition to pay these parties, who have been kept out of payment for the use of their property for || twenty years. In drawing up this bill, and in leaving the amount to be decided by the accounting officers, under the direction of the Secretary of the Navy, under the rules laid down by the Attorney General, that those officers, with the law before them, and the principles of equity and justice to guide them, would sufficiently guard the interests of the Government, and that no great harm would result from the latitude allowed them.

But, if the Senate thinks proper, I will at once agree to strike out this clause of the bill, if it is untenable, and let the bill stand on its other merits. All that I desire is, that these parties shall not be turned away after their claim has been so long delayed. They have never yet been repaid a single dollar. The United States have purchased land from them for a custom-house and barracks, and other purposes; but I am certain that if those lands were sold to individuals, they would bring double the price which the Government has paid

for them.

Mr. BAYARD. It is perfectly certain, that, if we are to decide this case upon the private knowledge of the Senator from Florida, apart from the documents presented, I am entirely mistaken in the conclusions which I have drawn from the facts. But it would be a new theory of Government, if the individual knowledge of a Senator, apart from the proof submitted, lame and loose, and ex parte as that proof is, was to form the ground of the decision of the Senate in reference to the propriety of allowing a claim. I stated the size of Key West from the documents in the case, as being an island of seven hundred acres. The Senator says it is larger. That is immaterial. If it is larger, the argument is stronger. I am perfectly willing, as regards the damages which are claimed, to place myself upon the legal position, which has not been and cannot be, answered by the Senator, that the Government is not responsible for the acts of Commodore Porter which were done outside of his orders, and which violated the individual rights of the parties. If he did commit such acts, their redress was against him. A resort to a court of justice was the proper mode to have obtained redress, if they believed they could have sustained themselves in a court; and if they would have sustained the encounter there, they would have brought the matter before the courts; and I say the fact that they did not so seek it, forms a strong presumption, in my mind, that they were not prepared to make such an issue. Talways distrust ex parte evidence, and I think there is no safety unless you do. It is to be scrutinized with much greater strictness than you establish in other cases.

The Senator tells us that the claimants have received nothing for damages. The petition admits that they received three thousand six hundred and odd dollars for wood. Is that nothing? It admits the fact that $4,000 were paid for the ground occupied by the custom-house; that $3,200 were paid for the ground occupied by the barracks; and that $6,800 have been paid since for other property. That makes the amount I stated. I stated these facts to show that the property which had been

6

occupied, under the orders of the Government, by Comodore Porter, had been paid for. I say so still. The order of the Government to Commodore Porter was to establish a depôt on the island. There can be no mistake about the extent of the order. There is nothing more in the papers-nothing more in the order of the Secretary to him-than, "You 'will establish at Thompson's Island, usually called Key West, a depôt, and land the ordnance and 'marines to protect the stores and provisions; if, however, you shall find any important objection 'to the place, and a more suitable and convenient one can be found, you are at liberty to select it 'as a depôt." The honorable Senator asks, How could they occupy this without taking the land? I said that they took a portion of the land, but not more than is occupied now; and that, beyond that, if Commodore Porter assumed jurisdic tion over the whole island and established martial law to prevent persons building and to paralyse commerce by arbitrary orders, he went beyond the authority conferred upon him; and if he did that, then, there the opinion, as a matter of law, announced by Mr. Legaré, strictly applies, and there is no responsibility on the part of the Government.

But I am free to say, that from the reading of this testimony-it is not necessary for me to go through it before the Senate now-the impression on my mind is, that this is a matter of dispute in which there was fault on both sides, and this claim is a prepared claim; and that the parties at the time carried on a series of petty disputes with Commodore Porter and his officers, with a view to make a subsequent claim against the Government of the United States; in order to get speculative damages. That is what I meant by the allegation of speculative damages. As I know none of these parties, it is indifferent to me; but I cannot resist the conclusion to which I have come; and if I were to use strong language, I should say that the claim is a fraud upon the Government from its beginning to its end. That is the impression which these papers make on my mind; because on the 7th of January, 1821, these parties made a communication calculated to draw the attention of the Government to this island, which was then as the reporting officer says, desolate, and that is the time to which I referred. Whether that was the condition of the island is immaterial. The honorable Senator says it was settled. That was when Commodore Porter went there, a year after security was given by the establishment of a guard by the United States. It was after the United States had assumed jurisdiction over it for the first time. But before that-on March 28, 1822-Commodore Perry in his report, said expressly that

"Heretofore the Florida keys have been the resort of smugglers, New Providence wreckers, and, in fact, of a set of desperadoes, who have paid but little regard either to law or honesty. The present establishment, though on a small scale, will, I conjecture, (with the assistance of the settlers,) be enabled to keep these lawless people from this island. But I would suggest the necessity of an early augmentation of force, if it be only for the purpose of enforcing the revenue laws."

It was not until April, 1823, that Commodore Porter was ordered there. When he went, a settlement may have arisen, because the Government had determined to have an establishment there, and had placed a guard to protect the island from smugglers and pirates. A settlement may have grown up in the interim. When Commodore Porter went there, the island was settled in part: but he was authorized to establish a depôt and barracks. The alleged aggression consists in the taking of what was not paid for, by arbitrary power on the part of Commodore Porter. Conceding those acts to have taken place, they did not come within the terms of the order, and he was responsible for them. The fact that the parties did not choose to sue him in 1825 for acts alleged, by ex parte proof in part established here, to have been committed, and did not hold him responsible, affords to me a presumption that those facts could have been met by counter proof to sustain the course which he was obliged to take.

Mr. DAWSON. What were the acts complamed of?

Mr. BAYARD. The acts charged are, that Commodore Porter prohibited them from building on their property according to the plan of a town they had laid out; that he arrested a workman of one of the owners when he attempted to build on the property of that owner, and decided that it

was property occupied by the United States; that he gave them orders to pen up their hogs, and that in consequence they were obliged to abandon them; that he prohibited settlers going there and locating without his authority; that he established martial law; that he punished individuals; that he interfered, as to vessels that were stranded there, in the jurisdiction of one of these parties-John Whitehead-who was a notary public, and who, being a notary public under the laws of Florida, pronounced judgment for salvers, and made salvage to be allowed; and, in order to carry out his own decree, he being entitled to one per cent. commission-this is one ground of the claim-made an order for the condemnation of a vessel on the plea of salvage. There was no other jurisdiction to do it. He was allowed, under the laws, one per cent. commission. To carry his order into effect, he put it into the hands of P. Green & Co., a firm of which he was a member, and directed that they should receive the commission of five per cent. To this Commodore Porter objected, and said that, as regarded the share to which the officers were entitled, he would not permit it to be sold by that auctioneer, at five per cent. commission, because one per cent. was the compensation. Whether this was right or wrong, I cannot determine, nor need I. I mention it as one of the series of acts complained of. But all the acts complained of, if they took place, arose from the unauthorized conduct of Commodore Porter. According to the orders received from the Navy Department, he was to establish a barracks and depôt there. They did not require the whole island to be taken possession of. No orders were given to him to take possession of the whole. His orders did not require martial law to be established. If he established it, he did it at his own peril. They did not require that an individual should not be permitted to build a house on his own property without the permission of Commodore Porter. If he required that, he did it at his own peril. These are the claims for damages. The property occupied by the barracks and custom-house has been paid for. The wood was paid for in 1846. The Navy Department having examined officers, and the proof being indefinite, averaged the quantity of wood for the number of vessels there, and the probable consumption, and allowed $3,600 for the wood consumed. In the case of the hogs, it is very clear that Commodore Porter had no right to give the order to pen them up, and the Government are not responsible for it. It was illegal. If the hogs were destroyed, unless they were taken for the use of the Government, certainly there is no ground against the Government for compensation. If Senators feel any doubt on the principle involved here, let them read the opinion of Mr. Legare in the Sibbald case. They will see that the ground for damages in that case was the same as here. Mr. Legare clearly lays down the rule for damages. It is found in the second volume of the Opinions of Attorneys General. It discriminates the extent to which the Government is responsible. Within the principles of that opinion, there is not one item in the claim here that has not been paid for.

Whether the price of $4,000 for the land on which the custom-house stands at Key West, which had been barren land before, was extravagant, does not appear in the papers. It does appear that the parties were willing to take it. I see nothing of liberality on their part towards the Government. I do not see that they charged less than the value of the land, unless they supposed that additional advantages would be gained to them, arising from the erection of the customhouse near their property, and that they would receive benefits in that way. At all events, it was a matter of agreement, and they were paid for the ground. So, too, as to the barracks. I can see no good claim for damages upon the Government on the part of the claimants here.

There is one other fact which I will mention. There is a vast deal of indefinite proof in this case. The papers show that Salas was the Spanish grantee in 1815. The communication which was made by Simonton to the Department, inviting attention to this island, is dated December 7, 1821.

Mr. DAWSON. Will the Senator from Delaware read that?

Mr. BAYARD. I will. The Senate will understand that at the time this communication was

written, Simonton was not the owner of the island, but whether he was then in a negotiation for its purchase, we cannot tell. I think that probably he was; and that was one of the reasons why I gave it the name of a speculative claim:

"Key West' is a small island, immediately on the edge of the Florida stream, situated in latitude, seventy-five miles north by west from Havana, and eighty-five miles from Matanzas, and quite contiguous to most of the outposts on the north side of Cuba-say, Bay of Honda, Cabannas, Mariel, St. John's de los Remedions, Arraco, &c., &c., which are all places of considerable trade, and depend almost entirely upon Havana for their supplies; it has an uncommon large and safe harbor, where men-of-war, with any draught of water, may enter and lie with safety; it has two never-failing springs of water, one of which is quite convenient to the harbor, and wood in great abundance. An establishment at this island would be of great importance to the Government, as well as to the merchants of the United States, as a harbor and rendezvous for our vessels of war, it being one of the most commanding places on the whole coast of Florida.

"The revenue that would arise from the importation of sugar, coffee, &c., productions of the Island of Cuba, as well as from other places in the Bay of Mexico, the distance being so short that an immense deal of property would be sent there, as well as specie, in vessels which seldom go now from the coast of Cuba, and receive in payment there the productions of the United States, which trade would be of great advantage to the American commerce. It would be an excellent harbor for our merchant ves eis to touch at bound to and from the Bay of Mexico to the United States, in cases of distress, which too frequently happen when they have no other place to touch at except a port in the Island of Cuba, where they are subject to heavy expenses.

"It is the only eligible situation for a dept of wrecked property on the whole coast of Florida. We are at this time wholly dependent on the wreckers of New Providence for the protection of our property in the case of shipwreck ; and when that occurs, it is carried to New Providence, which afferds a living for more than five hundred persons, and employs fifty or sixty vessels, and produces a large revenue to the Government, and a great pecuniary benefit to the merchants of that place, because a salvage is generally allowed of from fifty to seventy five per cent.

"If this place was made a port of entry, it would in all probability become a place of depôt for the productions of other countries, particularly those, of Great Britain and France, as it may be termed a key for the whole of the Bay of Mexico and the north side of the Island of Cuba. Arrangements are now making, and in the event of this place being made a port of entry, warehouses will immediately be erected, under the direction of merchants regularly established there. J. W. SIMONTON.

"HAVANA, December 7, 1821."

It appears by the papers that Simonton did not purchase from Salas, in Havana, until December 26, 1821, within thirty days after the date of this letter, as I have said. He was not the owner at the date of the letter, but judging from its character and from the subsequent purchase, he was negotiating for it, and endeavored to obtain the location of the naval depot there for the improvement of the property, and in that way he expected to make a valuable purchase. He paid $2,000 to Salas; what his other expenses have been since, we have no evidence here. The Senator from Florida may be right in his estimate of what it has cost him. But we have nothing to do with that. I spoke of what the property cost at the time of the purchase. It cost $2,000, as the value of the property antecedent to the time when the United States established the depôt there. Simonton, when he was not the owner of the island, called the attention of the Government to the establishment of that depôt, probably with a view to that purchase. I do not say that he is not entitled to receive full compensation for all the property which the Government took from him. But the Government has paid for all it took; and he comes here and asks Congress to pass a bill to pay him for damages grounded upon acts of officers, which, if true in point of fact, transcended the orders under which they were directed to establish a naval depôt there, and for which they were responsible, and for which they would have been made individually responsible, if the claimants had appeared in a court of justice and established their liability, with the evidence on both sides.

This island had not exactly the extraordinary character which Simonton attributed to it in his letter. The Government first sent Captain Perry there, and he made a report. Then there was a subsequent survey made by Commodore Patterson. That report is rather adverse to a permanent location there, and gives strong and good reasons why it would not do. It contains the statement of one fact about water, which is different from Simonton's statement, that there was not a sufficient supply of water and wood to depend on. So it appears in the statement of Commodore Porter, when he went there in 1823. His first report is dated April 16, 1823, and in it he

says:

"For the last two weeks our movements and occupations have been so varied, that, to enter into a full detail would swell too much this communication. To be brief, therefore, I shall merely state, that within that time we have built our storehouses on Thompson's Island, landed all our stores, collected together all the schooners of the squadron, and stationed them at different points on the coast of Cuba."

I presume there can be no doubt that a rendezvous, for a period of three years, of a fleet of eleven vessels, if these owners had their own establishments, must have been a source of great emolument to them. But that is thrown out of view, and they complain of damages caused by the conduct of the commanding officer, which was illegal, if it took place. Again Commodore Porter says:

"Thrown, as we are, on a barren and desolate island, that does not supply even water, I hope our situation may be made as free from sufferings as the Department can, without inconvenience to the public interest, make it."

Again, November 19, 1823, he says:

"The fixing an establishment at Thompson's Island, for rendezvous and supplies, as my instructions required, has had the most happy effect in attaining the object in view."

Did that authorize him to take the whole island into his possession? The island I stated to contain seven hundred acres. The Senator from Florida

says it is larger. Be it so. The instructions, or the report upon them, do not look as if he was to take possession of more than was necessary for the purposes of the Government, for the barracks and storehouses. But he continues:

"Its vicinity to Havana, placed, as it were, in the thoroughfare of vessels sailing through the Gulf, makes it. in many points of view, an object of great importance to the United States; and although for three months in the year it must ever remain sickly, while existing causes continuz, it is, from its extraordinary salubrity for the remainder of the year, worthy a closer examination, to ascertain whether they may not be eradicated. It is my opinion that, by thinning the woods and draining off the heavy rains of the month of June, thereby promoting a free circulation of air, 1: evaporation, and dispersion of the water rendered stagnant by the excessive heat of June, and which causes the rapid decomposition of the vegetable matter with which the island abounds, the months of August, September, and October, might be made sufficiently healthy for the residence of man; but at present, the poisonous effluvia arising from these causes is almost certain destruction to whoever breathes it. "Had I been aware of its pernicious effects, I could, I without any inconvenience, have guarded against them by an earlier removal of the ships; but it took us by surprise, and the malignity of the disease was unparalleled. It is certain that it originated on the island; for our ships, with the exception of those sent to work on shore, have in the crews enjoyed uncommon health.”

In another letter of October, he speaks of it in the same way. The proprietors themselves, in & memorial-when or where presented does not appear, it was not to the committee-make a statement to which I will refer. It is alleged that it was presented to the Navy Department. The answer of the Secretary of the Navy is, that there is not a copy of any such paper in the Department. It seems improbable that it ever could have been presented, or if presented and not acted upon, that some further action had not been taken by the memorialists, if the grounds of their complaint were correct. They say:

"The proprietors of the island were highly gratified in this early success in gaining that protection to commerce which the previous exposed situation of the island required, and their persons and property thereon, which were likewise very unsafe at that time."

On the whole, looking at this case with the best examination which I have been able to give it, I can see no damages claimed which are not embraced in the report of the committee of the Senate made in 1840. There is not a paper attached to the petition which is subsequent in point of date to the report of that committee. There are, no new facts, unless in the following papers, of which the Senate will judge the value: there are three individuals who swear that, in their opinion, a proper and reasonable compensation, by way of rent for this tsland, ought to be paid by the United Statés to Simonton and others. Two of them swear to twenty thousand dollars a year, and the other to fifteen thousand a year. What force, as evidence, that has, and what weight it should have, the Senate can judge. But, apart from that, there is no evidence of the existence of any cause for relief which was not before the committee in 1840, or which might have been before them, because it was all in existence, according to the dates of the papers which are before us. After deliberation, after the Secretary of the Navy reported against the claim, the committee unanimously reported against it as "an unreasonable claim." That is the language of the report.

Mr. SEWARD. How is the committee now?

32D CONGRESS, 1ST SESSION.

Mr. BAYARD. The committee, at this session, have reported in favor of the claim. I do not know whether the Senator from New York was here when I made my objection to the form of this bill. I objected to it on the ground that the general rule established here ought to be sufficient to defeat the bill as it stands; but I went afterwards into matters that showed the claim was not justifiable, and, therefore, not worthy of reference. In conclusion, the motion which I makeif it will not cut off debate-is, that this bill be indefinitely postponed. If it will cut off debate, I will withdraw it.

Mr. SEWARD. I will submit to the honorable Senator from Florida, [Mr. MALLORY,] in a very few words, what I have to say about this bill. I shall not detain the Senate any length of time. I think the bill is in very great danger, if pressed to a vote, of being lost. Still, for one, I am of opinion that there is a claim to some extent, and I think the bill may be modified in such a way as to provide for a fair and just settlement of that claim.

Mr. BUTLER. If the Senator from New York will give way, I will move to postpone the further consideration of this subject, as it seems to involve some questions of interest, that we may go into Executive session.

to

Mr. SEWARD. If the Senator will allow me, I will state some amendments which I propose submit for consideration, and then the subject may be postponed. I think it would remove much difficulty by inserting the word "examine" before"audit" in the following phrase: "Give to the Secretary of the Treasury power to audit and settle;" and that a further difficulty would be removed by striking out the words "upon principles of equity and justice," as I suppose the bill will mean the same whether they are in or out; and then to strike out the words and in settling it upon these principles, they shall ascertain as nearly as practicable, the benefits and advantages which accrued to the United States from the occupancy of it, and also the injuries which result'ed to the owners of it," and to insert after the words" to pay "the words "the amount, if any, which shall be so found to be due," so as to make the bill read—

"Be it enacted, &c., That the proper accounting officers of the Treasury Department, under the direction of the Secretary of the Navy, examine, audit, and settle the claim of John W. Simonton and others, owners of the island of Key West, in the State of Florida, on account of its occupancy by the Government of the United States as a naval and military post during the years 1823, 1824, 1825, and 1826, and to pay the amount, if any, which shall be found to be due, out of any money in the Treasury not otherwise appropriated."

Mr. MALLORY. I concur in the amendments of the Senator from New York. I will accept any amendments which go to pay these parties anything for the occupation of the island. And here I beg leave to make one remark in reply to the Senator from Delaware in relation to this claim having been paid. He insisted, that with the exception of the wood, they had no claim, and that the wood was paid for. If that were so, of course they would not be paid for again under this bill; but with that exception, not one item has been paid for. The sum of $17,000 is the result of purchases made by the Government long subsequent to the events set up, when the Government came in as a purchaser, at the same time as private individuals, and purchased lands from the proprietors on which to erect the custom-house, barracks, &c. It is not embraced in the original claim at all·

Mr. SEWARD. If the Senator from Delaware will withdraw his motion to postpone indefinitely, I will offer my amendments, and move to postpone the further consideration of the subject until Monday next.

Mr. BAYARD. I will withdraw my motion in Order to enable the Senator to offer his amendments, and then I shall move to postpone it indefinitely. Mr. SEWARD. Then I offer the amendments which I have read, and ask for the question upon Chem.

The PRESIDENT. The question is on the amendments offered by the Senator from New York.

The motion was agreed to, and the Senate adjourned until Monday.

HOUSE OF REPRESENTATIVES. FRIDAY, February 13, 1852. The House met at twelve o'clock, m. Prayer by the Rev. C. M. BUTLER.

The Journal of yesterday was read and approved.

Mr. DANIEL moved that the House resolve itself into Committee of the Whole House upon the Private Calendar.

Mr. D. said: I beg leave to state that, in consequence of the little attention which was paid to private business during the last Congress, the Private Calendar has become greatly enlarged. I trust that this Congress will not regard this private

business with the same censurable indifference.

Mr. OLDS. I ask the gentleman from North Carolina to withdraw his motion for a moment, in order to give me the opportunity of making a personal explanation. I will renew the motion after I have made it.

Mr. DANIEL. I will withdraw for the gentle

man.

Mr. OLDS. Perhaps the motion which I propose to make is a privileged motion; at least I trust the House will permit me to offer it.

On day before yesterday, I had lying upon my desk a Senate bill, in connection with several others, which I had been directed by the Committee on the Post Office and Post Roads to report to the House, and which I expected to report as soon as committees were called for reports. In this

condition the House went into Committee of the Whole on the state of the Union. I was called to the chair, and left the bills lying upon my desk. After the committee rose, I put the bills, as I supposed, into my drawer; but, on examination, I find that the Senate bill is missing.

The SPEAKER. What was the number of the bill?

Mr. OLDS. I do not recollect the number; but it was a bill declaring a plank road a post road. I ask that a message be sent to the Senate requesting a copy of the bill.

The motion was agreed to.

Mr. DANIEL. I now press my motion to go into Committee of the Whole on the Private Calendar.

CHARGES AGAINST JUDGE WATROus.

Mr. VENABLE. I ask my colleague to withdraw his motion for one moment, in order for me diciary, which is very urgent. I will renew it as to present a report from the Committee on the Jusoon as it is made.

Mr. DANIEL. I will withdraw for my colleague.

and offences. Among other things, he is charged with practicing law and receiving fees in the State of Texas touching matters which had come before and been decided upon by himself-or touching those of a similar character. He is charged with adjudicating cases in which he was personally interested, and with certain violations of the laws of Texas, which, the memorialists declare, militate against the purity of his character as a judge. All of which the committee think should be examined into.

Mr. HOUSTON. Do I understand the gentleman from North Carolina to say that this is an

examination preliminary to an impeachment?

Mr. VENABLE. It is. At least the committee think the matter should be looked into, and the nature of the facts, which that examination will develop, will determine whether the committee will recommend a further prosecution of the case. I ask that the resolution may be adopted.

Mr. SEYMOUR, of New York. I wish to ask the gentleman from North Carolina one question : Does the Committee on the Judiciary propose to bring witnesses from Texas, or to examine them there

Mr. VENABLE. I will say to the gentleman from New York, that must be for the committee to determine. The committee would, with great reluctance, go to the expense of sending to Texas for witnesses. But so important is the purity of the ermine of our judges, that the question of inconvenience and expense is one which ought not to be taken into consideration, if the country is satisfied, or the committee are satisfied that the charges are well founded.

Several MEMBERS. That's right.

Mr. FOWLER. I desire to propound another charges preferred? question to the gentleman. By whom were these

Mr. VENABLE. By a certain William Alexander, a lawyer, practicing in Texas. The committee, however, have had other evidence-ex parte to be sure-sufficient to satisfy their minds that the matter ought to be examined into.

The question was then taken, and the resolution was adopted.

Mr. VENABLE. My colleague [Mr. DANIEL] yielded me the floor upon my promise to renew his motion. In accordance with that promise, I now move that the House resolve itself into the Committee of the Whole House on the Private Calendar.

Mr. WEIGHTMAN. I appeal to the gentleman from North Carolina to withdraw that motion, to allow me to introduce, by general consent, a resolution of inquiry.

Mr. DANIEL. I will hear the gentleman's resolution.

The resolution was then read for information, by the Clerk, as follows:

Resolved, That the Committee on Military Affairs be instructed to inquire into the expediency of placing the military storekeeper, on duty in New Mexico, upon the same footing, as regards compensation, with the military store

be on duty in that Territory.

There being no objection, the resolution was introduced and adopted.

Mr. STEPHENS, of Georgia. I inquire of the Chair, if there is not a special order pending?

resolution:

Resolved, That the Committee on the Judiciary be authorized to send for persons and papers, with authority to examine witnesses, under oath, in relation to the charges made against John C. Watrous, judge of the United States court for the district of Texas.

Mr. STEPHENS, of Georgia. What is the nature of those charges?

Mr. VENABLE. I will, with the indulgence of the House, state the nature of the charges for the satisfaction of the gentleman. A memorial has been presented to this House, charging Judge

The SPEAKER. There is a special order, but it cannot be reached until the House go into Committee of the Whole on the state of the Union, and no motion has been submitted for that purpose.

Mr. ABERCROMBIE. I ask the unanimous consent of the House to enable me to make a report from the Committee on Private Land Claims. I will state that I was away when the committees were called for reports the other day..

Mr. DANIEL objected.

Mr. D. I now press my motion to go into Committee of the Whole House on the Private Calendar.