the hunter state, and turned their attention to agricultural pursuits. All those who have been established for any length of time in that fertile region maintain themselves by their own industry. There are among them traders of no inconsiderable capital, and planters exporting cotton to some extent; but the greater number are small agriculturists, living in comfort upon the produce of their farms. The recent emigrants, although they have in some instances removed reluctantly, have readily acquiesced in their unavoidable destiny. They have found at once a recompense for past sufferings, and an incentive to industrious habits, in the abundance and comforts around them. There is reason to believe, that all these tribes are friendly in their feelings towards the United States; and, it is to be hoped, that the ac quisition of individual wealth, the pursuits of agriculture, and habits of industry, will gradually subdue their warlike propensities, and incline them to maintain peace among themselves. To effect this desirable object, the attention of Congress is solicited to the measures recommended by the Secretary of War for their future government and protection, as well from each other as from the hostility of the warlike tribes around them, and the intrusions of the whites: The policy of the Government has given them a permanent home, and guaranteed to them its peaceable and undisturbed possession. It only remains to give them a government and laws which will encourage industry, and secure to them the rewards of their exertions. The importance of some form of government cannot be too much VOL. LXXX.

insisted upon. The earliest effects will be to diminish the cause and occasions for hostilities among the tribes, to inspire an interest in the observance of laws to which they will have themselves assented, and to multiply the securities of property, and the motives of self-improvement. Intimately connected with this subject is the establishment of the military defences recommended by the secretary of war, which have been already referred to. Without them, the Government will be powerless to redeem its pledges of protection to the emigrating Indians against the numerous warlike tribes that surround them, and to provide for the safety of the frontier settlers of the bordering states.

The case of the Seminoles constitutes at present the only exception to the successful efforts of the government to remove the Indians to the homes assigned them west of the Mississippi. Four hundred of this tribe emigrated in 1836, and 1,500 in 1837 and 1838, leav ing in the country, it is supposed, about 2,000 Indians. The continued treacherous conduct of these people, the savage and unprovoked murders they have lately committed, butchering whole families of the settlers of the territory, without distinction of age or sex, and making their way into the very centre and heart of the country, so that no part of it is free from their ravages; their frequent attacks on the lighthouses along that dangerous coast; and the barbarity with which they have murdered the passengers and crews of such vessels as have been wrecked upon the reefs and keys which border the Gulf, leave the Government no alternative but to continue the military operations against

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them until they are totally expelled from Florida.

There are other motives which would urge the Government to pursue this course towards the Seminoles. The United States have fulfilled in good faith all their treaty stipulation with the Indian tribes, and have, in every other instance, insisted upon a like performance of their obligations. To relax from this salutary rule, because the Seminoles have maintained themselves so long in the territory they had relinquished, and, in defiance of their frequent and solemn engagements, still continue to wage a ruthless war against the United States, would not only evince a want of constancy on our part, but be of evil example in our intercourse with other tribes. Experience has shown, that but little is to be gained by the march of armies through a country so intersected with inaccessible swamps and marshes, and which, from the fatal character of the climate, must be abandoned at the end of the winter. I recommend, therefore, to your attention the plan submitted by the secretary at war in the accompanying report, for the permanent occupation of the portion of the territory freed from the Indians, and the more efficient protection of the people of Florida from their inhuman warfare.

From the report of the secretary of the navy, herewith transmitted, it will appear that a large portion of the disposable naval force is either actively employed, or in a state of preparation, for the purposes of experience and discipline, and for the protection of our commerce. So effectual has been this protection, that, so far as the information of the Govern

ment extnds not a single outrage. has been attempted on a vessel carrying the flag of the United States within the present year, in any quarter, however distant and exposed.

The exploring expedition sailed from Norfolk on the 19th of August last, and information has been received of its safe arrival at the island of Madeira. The best spirit animated the officers and crews, and there is every reason to anticipate from its efforts, results beneficial to commerce, and honourable to the nation.

It will also be seen that no reduction of the force now in commission is contemplated. The unsettled state of a portion of South America renders it indispensable that our commerce should receive protection in that quarter; the vast and increasing interests embarked in the trade of the Indian and China seas, in the whale fisheries of the Pacific Ocean, and in the Gulf of Mexico, require equal attention to their safety; and a small squadron may be employed to great advantage on our Atlantic coast, in meeting sudden demands for the reinforcement of other stations, in aiding merchant vessels in distress, in affording active service to an additional number of officer, and in visiting the different ports of the United States, an accurate knowledge of which is obviously of the highest importance,

The attention of Congress is respectfully called to that portion of the report recommending an increase in the number of smaller vessels, and to other suggestions contained in this document. The rapid increase and wide expansion of our commerce, which is

every day seeking new avenues of profitable adventure; the absolute necessity of a naval force for its protection precisely in the degree of its extension; a due regard to the national rights and honour; the recollection of its former exploits, and the anticipation of its future triumphs, whenever opportunity presents itself, which we may rightfully indulge from the experience of the past-all seem to point to the navy as a most efficient arm of our national defence, and a proper object of legislative encouragement.

The progress and condition of the Post-office department will be seen by reference to the report of the Postmaster-general. The extent of post roads, covered by mail contracts, is stated to be 134,818 miles, and the annual transportation upon them is 34,580,202 miles. The number of post-offices in the United States is 12,553, and rapidly increasing. The gross revenue for the year ending on the 30th of June last was 84,262,145. The accruing expenditure, 4,680,068; excess of expenditure, 417,923. This has been made up out of the surplus previously in hand. The cash in hand on the 1st instant was $814,068. The revenue for the year ending June 30, 1838, was 161,540 more than that for the year ending June 30, 1837. The expenditure of the department had been graduated upon the anticipation of a largely increased revenue. A moderate curtailment of mail service consequently became necessary, and has been effected, to shield the department against the danger of embarrassment. Its revenue is now improving, and it will soon resume its onward

course in the march of improvement.

Your particular attention is requested to so much of the Postmaster-general's report as relates to the transportation of the mails upon railroads. The laws on that subject do not seem adequate to secure that service, now become almost es-> sential to the public interests, and at the same time protect the department from combinations and unreasonable demands.

Nor can I too earnestly request your attention to the necessity of providing a more secure building for this department. The danger of destruction to which its important books and papers are continually exposed, as well from the highly combustible character of the building occupied, as from that of others in the vicinity, calls loudly for prompt action.

Your attention is again earnestly invited to the suggestions and recommendations submitted at the last session in respect to the district of Colombia.

I feel it my duty, also, to bring to your notice certain proceedings at law which have recently been prosecuted in this district, in the name of the United States, on the relation of Messrs. Stockton and Stokes, of the state of Maryland, against the Postmaster-general, and which have resulted in the payment of money out of the national Treasury, for the first time since the establishment of the Government, by judicial compulsion exercised by the common law writ of mandamus, issued by the Circuit Court of this district.

The facts of the case, and the grounds of the proceedings, will be found fully stated in the Report

of the decision; and any additional information which you may desire will be supplied by the proper department. No interference in the particular case is contemplated. The money has been paid, the claims of the prosecutors have been satisfied, and the whole subject, so far as they are concerned, is finally disposed of; but it is on the supposition that the case may be regarded as an authoritative exposition of the law as it now stands that I have thought it necessary to present it to your consideration.

The object of the application to the Circuit Court was to compel the Postmaster-general to carry into effect an award made by the Solicitor of the Treasury, under a special act of Congress for the settlement of certain claims of the relators on the Post-office Department, which award the Postmaster-general declined to execute in full until he should receive further legislative directions on the subject. If the duty imposed on the Postmaster-general by that law was to be regarded as one of an official nature, belonging to his office as a branch of the Executive, then it is obvious that the constitutional competency of the judiciary to direct and control him in its discharge was necessarily drawn in question. And if the duty so imposed on the Postmaster was to be considered merely ministerial and not executive, it yet remained to be shown that the Circuit Court of this district had authority to interfere by mandamus, such a power having never before been asserted or claimed by that court. With a view to the settlement of these important questions, the judgment of the

Circuit Court was carried, by a writ of error, to the Supreme Court of the United States. In the opinion of that tribunal, the duty imposed on the Postmastergeneral was not an official, executive duty, but one of a merely ministerial nature. The grave constitutional questions which had been discussed were, therefore, excluded from the decision of the case; the court, indeed, expressly admitting that with powers and duties properly belonging to the executive no other department can interfere by the writ of mandamus; and the question, therefore, resolved itself into this-has Congress couferred upon the Circuit Court of this district the power to issue such a writ to an officer of the general Government, commanding him to perform a ministerial act? A majority of the court have decided that it has, but have founded their decision upon a process of reasoning which, in my judgment, renders further legislative provision indispensable to the public interests, and the equal administration of justice.

It has long since been decided by the Supreme Court, that neither that tribunal nor the Circuit Courts of the United States held within the respective states possess the power in question; but it is now held that this power, denied to both of these high tribunals (to the former by the constitution, and to the latter by Congress), has been, by its legislation, vested in the Circuit Court of this district. No such direct grant of power to the Circuit Court of this district is claimed; but it has been held to result, by necessary implication, from several sections of the law establishing the

court. One of these sections declares, that the laws of Maryland, as they existed at the time of the cession, should be in force in that part of the district ceded by that state; and, by this provision, the common law, in civil and criminal cases, as it prevailed in Maryland in 1801, was established in that part of the district.

In England, the Court of King's Bench, because the Sovereign, who, according to the theory of the constitution, is the fountain of justice, originally sat there in person, and is still deemed to be present in construction of law, alone possesses the high power of issuing the writ of mandamus, not only to inferior jurisdictions and corporations, but also to magistrates and others, commanding them, in the King's name, to do what their duty requires, in case where there is a vested right, and no other specific remedy; it has been held, in the case referred to, that as the Supreme Court of the United States is by the constitution rendered incompetent to exercise this power, and as the Circuit Court of this district is a court of general jurisdiction in cases at common law, and the highest court of original jurisdiction in the district, the right to issue the writ of mandamus is incident to its common law powers. Another ground relied upon to maintain the power in question is, that it was included by fair construction, in the power it granted to the Circuit Courts of the United States by the act "to provide for the more convenient organization of the courts of the United States," passed 13th of February, 1801; that the act establishing the Cir

cuit Court of this district, passed the 27th day of February, 1801, conferred upon that court and the judges thereof the same powers as were by law vested in the Circuit Courts of the United States and in the judges of the said courts ; that the repeal of the first-mentioned act, which took place in the next year, did not divest the Circuit Court of this district of the authority in dispute, but left it still clothed with the powers over the subject which, it is conceded, were taken away from the Circuit Courts of the United States by the repeal of the act of the 13th of February, 1801.

Admitting that the adoption of the laws of Maryland for a portion, of this district confers on the Circuit Court thereof, in that portion, the transcendent extrajudicial prerogative powers of the Court of King's Bench in England, or that either of the acts of Congress, by necessary implication, authorize the former court to issue a writ of mandamus to an officer of the United States to compel him to perform a ministerial duty, the consequences are in one respect the same. The result in either case is, that the officers of the United States, stationed in different parts of the United States, are, in respect to the performance of their official duties, subject to different laws and a different supervision-those in the States to one rule and those in the district of Colombia to another and a very different one. In the district their official conduct is subject to a judicial control, from which in the States they are exempt.

Whatever difference of opinion may exist as to the expediency of vesting such a power in the judici.