IN THE SENATE OF THE UNITED STATES.

AUGUST 4, 1856.-Ordered to be printed.

Mr. SEBASTIAN made the following

REPORT:

[To accompany Bill S. 425.]

The Committee on Indian Affairs of the Senate, to whom was referred the memorial of Livingston, Kincaid & Co., beg leave to report:

That on the 2d day of November, 1854, Charles A. Kincaid, one of the members of the firm of Livingston, Kincaid & Co., of Salt Lake city, Utah Territory, left that city as a passenger in the mail stage, from thence to Independence, in the State of Missouri, in possession of the sum of ten thousand and seventy dollars, in gold coin, consigned to a mercantile firm in St. Louis, to whom memorialists were indebted; that the party in and accompanying the mail stage were attacked near Fort Laramie and all massacred, with the exception of Charles A. Kincaid, the stage robbed of its contents, embracing the gold coin, and Mr. Kincaid severely wounded. He was found afterwards and carried into the fort. The United States were nominally at peace with these Indians, the Sioux, at the time of the massacre and robbery of the mail party, though a state of hostilities was soon after recognized, and General Harney dispatched to the plains for their chastisement. The amount of money, with the particular description of the number and value of the pieces, are stated upon the cash book of the firm, and deposed to by the clerk of the establishment. The loss of the money rests upon the testimony of Mr. Kincaid, the only survivor of the party, and the corroborating testimony of the confessions of some of the Indians, soon thereafter captured by General Harney. It is true that the provisions of law have not been pursued in the mode of proving this loss. The relations between the United States with these Indians has been such, since the date of the depredations, as to dispense with the necessity of taking the proof before the proper Indian agent. Could that provision of the intercourse law have been complied with, and the steps usual in such cases been adopted by the President to obtain satisfaction, it would have been fruitless, as the annuities due to these Indians by the treaty of Fort Laramie are payable only in goods, for which there is not any express authority of law allowing them to be retained as indemnity. Those annuities are so small that it would require the whole of

an annuity belonging to the particular band, if, indeed, that could be ascertained, to satisfy the particular claim. The robbery was most probably committed by some small straggling band of Indians, and, under the circumstances, it would be impolitic to take the goods intended for a whole band to pay for the depredations of a straggling and irresponsible portion of them, should the perpetrators belong to these bands. Since treated as hostile, the annuity is then gone by the act of war, and there is nothing left for indemnity. The committee, believing that the substance and spirit of the law have been complied with, report a bill for the payment at once of the indemnity which the intercourse act guaranties in all such cases.

The Committee of Claims, to whom was referred the report of the Court of Claims in the case of Thomas Crown, report:

This claim passed the Senate at the last Congress, and was referred by the House of Representatives to the Court of Claims. The opinion of that court, sustaining the claim, is hereto annexed, as a part of this report.

The committee recommend the passage of the accompanying bill, in accordance with the opinion of the court.

THOMAS CROWN vs. THE UNITED STATES.

Opinion of the court on the facts, delivered by Chief Justice Gilchrist.

This claim has been pending since the year 1826-a period of thirty years. It has been before Congress at fourteen sessions. Before the first session of the 29th Congress six adverse reports were made upon it. At that and subsequent sessions there were four favorable reports made upon it. We have now endeavored to analyze a rather confused. mass of testimony, and to divest the case of all matters which are not strictly relevant to the issue involved. The case does not appear, heretofore, to have been examined with the care and patience necessary to ascertain the merits of the various questions presented. The claimant states the following case:

In the month of January, 1826, Captain Blaney, who was then superintending the fortifications at Oak island, near the mouth of Cape Fear river, issued proposals for the delivery at Oak island of six millions of bricks. The claimant filed his proposals for delivering from one million to six millions of bricks, of the size of 8, 4, and 21 inches, at the rate of $7 75 per thousand. On the 16th of March, 1826, his proposals were accepted by Captain Blaney, who, about that time reported to the Engineer Department a list of the proposals received by him, at the foot of which list he made this entry: "Mr. Crown's proposals are accepted. He makes the bricks within five miles of Oak island." He also made the following certificate: "I certify that the contract entered into between Thomas Crown and

myself for the delivery of three millions of bricks, for the fortifications at Oak island, was made on the most favorable terms that could be procured.

"GEORGE BLANEY, "Captain Corps of Engineers."

On the 16th of March, 1826, a contract, under seal, was made between the claimant and Captain Blaney, acting for, and on behalf of, the United States.

The claimant proceeded to Smithville, near Oak island, having made all the preparations necessary to enable him to carry on his contract, and by the 1st of July, 1826, had made about eight hundred thousand bricks, of which Captain Blaney admitted that two hundred and fifty thousand could be received under the contract. Certain objections were made to this contract by the Engineer Department, which will be hereafter noticed. There was no agreement between the claimant and Blaney, that the contract might be altered, modified, or rescinded, by either party, or that its approval by any superior officer was necessary. After receiving the communication from the Engineer Department, Blaney refused to fulfil the contract, or to accept the two hundred and fifty thousand bricks. He alleged that the claimant had not the means to fulfil the contract, and was in debt to one Potter; but he owed Potter only about $600, and if Blaney had paid him for his bricks, according to the contract, he would have been relieved from his indebtedness. Blaney insisted upon his transferring his property to Potter, and abandoning the contract, which he did, and sold out his brick-yard, implements, and bricks to Potter for $640. Blaney then accepted from Potter the bricks made by the claimant, being about eight hundred thousand, for which he paid him from $8 to $8 50 per thousand. Blaney refused to modify the contract, or to make any contract with the claimant, although there had been no breach of the contract, as he was not bound to deliver any bricks until the 1st of October, and then but one million. It is upon this state of facts that he asserts a right to recover damages of the United States.

This contract was executed on the 16th of March, 1826, and was forwarded by Captain Blaney to the Engineer Department. It appears from the letter of Colonel Totten, of March 2, 1846, that since February, 1840, there has been a regulation providing "that no contract will be binding on the United States, or will go into operation, until it has been sanctioned by the chief engineer. He also states that the regulation in force at the time of this contract required that they should be reported, "accompanied by a list of the proposals, and a certificate declaring them to have been made on the most reasonable terms that could be procured, and copies of all contracts so made must be forwarded to the Engineer Department." It thus appears that it was not necessary to the validity of this contract that it should have been sanctioned by the chief engineer. A certificate, in proper form, accompanied the list of proposals. Captain Blaney, after stating that Crown's proposals were accepted, certifies that the contract was made on the most favorable terms that could be procured. The regulation, it will be seen, requires that the contract should be

"accompanied by a list of the proposals and a certificate," &c., and Colonel Totten is mistaken when he says in his letter of March 18, 1846, that there was no certificate.

He says, also, that a "contract either contains or must be accompanied by some provision guarantying the full and faithful performance by the contractor of all the stipulations in the contract. This is done either by taking the contractor's bond, with security, or by retaining from the periodical payment a certain per centage of the amount due. This usage seems to have been enforced in 1826."

It does not appear from this that a provision for collateral security need have been inserted in the contract. The "usage" of retaining a per centage of the periodical payment might have been enforced in any case. There is certainly nothing in the letter showing that the contract would be void to all effects if this collateral security were not given, particularly when according to the "usage" a part of the payment due might be retained.

Colonel Totten also says: That "in every contract there must be inserted an express provision, that no member of Congress shall be admitted to any share or part thereof, or to any benefit to arise therefrom, (see act of April 21, 1808, § 3.) This provision of the law appears not to have been enforced about the time that Mr. Crown's contract was prepared. Its non-observance was perhaps owing to the fact that its existence was at that time unknown.

It would certainly be rather rigid to enforce a law which had fallen into disuse, or which was unknown, for the purpose of avoiding a single contract, while others, with the same defect, were permitted to remain unimpeached, particularly where, as in the present case, twenty years had been suffered to elapse before the objection was taken. But the omission to contain this provision does not render the contract void. The first section of the act referred to (2 St., 484) declares a contract with the United States, in which any member of Congress is interested, to be "absolutely void and of no effect." But the third section merely directs that in every such contract there shall be inserted a provision that no member of Congress shall be interested in it. It does not declare the contract to be void if the provision is not inserted, but is merely directory. The public officer who makes a contract which does not contain this provision may subject himself to censure, but the contract would not be void, upon the well understood doctrine of the law on this subject, a doctrine so long established as to need no authorities now in its support.

Four months after the execution of the contract, on the 26th of July, 1826, Captain Smith, of the Engineer Department, wrote to Captain Blaney that the contract was "decidedly objectionable." The first objection stated is, that there is no penalty expressed, and no bond accompanying and referring to it. This has already been sufficiently commented upon.

It is stated, secondly, that "if the whole should not be delivered, the government is bound, nevertheless, to pay the sum to which it would amount if delivered; at least, according to the letter of the contract, that construction might be put upon it." Now the "letter of the contract," in its fourth provision, is, that Crown "shall be entitled to receive from the United States, through the hands of the said