have realized, if they had been permitted to have completed their contract; and they prayed that the adjustment of their claim might be referred, either to "some judicative tribunal, or to some of the Executive Departments, with full power to appoint commissioners or referees, to act on the genuine prin(g) 7th volume ciples of judicature. (g) On the 3d of March, 1823, an act was Laws, p 7. passed, authorizing and requiring the Secretary of War to ascertain, by some suitable person or persons to be appointed by him, whether there had been any failure on the part of the United States, in the fulfilment of the contract for erecting fortifications on Dauphin Island; and if so, to ascertain and report to Congress at the then next session, the amount of damage thus sustained by Richard Harris and Nimrod Farrow, the contractors, by such failure; and also, to ascertain and report whether the said contractors had failed in fulfilling the contract on their part, and the cause of such failure. The Secretary of War appointed Thomas Swann, Esq. of Alexandria, well known as a gentleman of intelligence, and a lawyer of distinction, a commissioner to investigate and report on the points mentioned in the above mentioned act. The provisions of the law were as liberal as the petitioners had requested, or as could, with a due regard to the interests of the United States, have been enacted. Mr. Swann proceeded to collect such evidence as he thought necessary, on the part of the United States, and to examine and hear such evidence as was offered by the petitioners.

(h) The commissioner decided that the United States had broken the contract, by withholding the appropriation, and inasmuch as this was during the existence of the contract, he did not determine whether, if the appropriation had been made, the contractors could have completed the works within the time stipulated in the contract, or not

(i) Having decided this point, he proceeded to inquire how far the Government had committed itself to the contractors, in their expenditures on this fortification. In the estimate made by the engineers, there was a mistake of 10,000 cubic yards of brick masonry, the actual quantity being, according to the plan, 29,999, and not 39,999 yards, as estimated, which made a difference in the amount the Government was bound to expend, of $110,000.

By the contract, the Government was obliged to pay for the erection of 20,000 cubical yards of brick masonry, and for the removal of 100,000 cubical yards of earth, and it might increase the quantity at pleasure. The size of the fortification was enlarged, and the commissioner proceeded to ascertain whether the contractors had been put to any additional expense, in consequence of the error committed by the engineers, or by the enlargement of the plan for the fortification; and he decided that no additional expense had been incurred on either account. "It seemed to him that the preparations made by the contractors, and the expenses incurred by them, were such as were necessaTy, in the fulfilment of the written contract, and not beyond the necessity of that state of the case. He accordingly felt himself

bund to adopt the written stipulation of the Government, as the tasis upon which his estimate of damages was to be made, and, apon this principle, the earth and brick work of this contract, for which the Government was accountable, amounted to $413,000."

The wood work forming so inconsiderable an item in the account of damages sustained, no estimate of the profits which would have resulted from this part of the work, was submitted by the contractors, nor estimated by the commissioner, farther than the same was included in the amount awarded for the damages sustained by putting an end to the contract. He estimated these damages, and the loss on the timber and such other materials as were in progress when the works were stopped at $8,000.

The engineers did not lay out the fortification so that the contractors could commence operations by the 1st of December, 1818, but were delayed until some time in January following, for which he allowed four thousand dollars.

Having agreed on the principle, the commissioner proceeded to ascertain what it would have cost to complete the fortification, so as to give to the contractors the entire profits they would have enjoyed, if they had completed the works.

In making out the estimate of the expense of the fortification, the engineers had based their calculations on the supposition that a day's labor of a common laboring man would be worth one dollar and twenty-five cents per day. Labor, provisions, and clothing, having fallen in price during the existence of the contract, the commissioner, in making out his award, estimated the labor of a common laboring man to be one-third less than the price fixed on by the engineers, which gave a profit to the contractors of one-third in this expense. The engineers had supposed, that a common laboring man would excavate eight cubic yards of earth in a day. (k) The commissioner based his (k)Same p. 94. award on the supposition that a laboring man would excavate twelve cubic yards of earth in a day. So that an advantage was given to the contractors by the commissioner, in his award, of one-third in the reduction of the price of labor, and an advantage of one-third in the quantum of labor a man could perform, when that labor was directed towards excavations.

By the contract, eleven dollars was the estimated price of every cubic yard of brick masonry.

Four hundred and nine brick, with the necessary mortar, would construct a cubic yard of wall; but the commissioner, in his estimate, made an allowance for the loss of brick in removing them from the kiln, and in laying them into the wall, and computed that, with such losses, four hundred and fifty would be consumed in each cubic yard of wall. He estimated that each cubic yard of brick masonry, including brick, mortar, and laying, would cost the contractors six dollars and nine cents, which, deducted from eleven dollars, gave a profit of four dollars and ninety-one cents on each cubic yard.

By the contract, the contractors were to receive eighty-three

Same p. 97.

cents and eight-tenths for each cubic yard of earth excavated, removed, and deposited. The commissioner estimated that this expense would be fifty-six cents per each cubic yard of earth so excavated, removed, and deposited; which gave a profit to the contractors of twenty-seven cents eight-tenths per cubic yard of earth. In constructing thirty thousand cubic yards of brick masonry, and in excavating and removing1 00,000 cubic yards of earth, the contractors were entitled by the contract to the sum of four hundred and thirty thousand eight hundred dollars.

The contractors had performed work and delivered materials, at the time the United States put an end to the contract, to the value of $48,899 15, as he reported. Having established the principles of his award, and having made his calculations according to the data given, the commissioner opened an account between the United States and Farrow and Harris, as follows:

He awarded, that the suits depending against Farrow and Harris be dismissed, and that the sum of $73,747 78 be paid to them. An act passed for the payment of this money, on the 3d of March, 1828.

The fourth section of that act is as follows: "That an inventory be taken of such personal property as shall be returned to the said Farrow under the provisions of this act, and an estimate of its value be made, under such regulations as the Secretary of War may prescribe, and that there be paid unto the said Farrow such difference as exists between the value of the personal property, at the time the same was taken possession of by the Government, and its return, together with the value of the personal property destroyed or lost while the same was in the possession of the Government, except the same was destroyed by the act of God."

Then the committee reported this section of the bill, and Same p 19. en the report was made that accompanied the bill, the committee entertained the opinion that a large number of slaves and personal property, of very considerable value, were in the possession of an officer of the United States by virtue of the trust deed executed by Farrow and Harris to Captain Gadsden, as Agent of the United States, and that said property had so been in the possession of the officers of the United States, and used for the benefit of the United States, from the 10th of April, 1820, to the time said reports were made. It is proper to remark, that the award of the Commissioner was not signed until the 27th of January, 1825; that the subject was referred to the committee on the day of ; and that the report was made on the 16th of February, 1825. The committee expressly negative the idea that the evidence was closely scrutinized, and although mention is made that the sum awarded will not compensate the petitioners for the losses they sustained by the suspension of the work, yet it will be seen, that the principal losses, not compensated by the award, was on account of the supposed possession of the said slaves and personal property by the United States.

To carry into effect the provisions of the fourth section above cited, the Secretary of War, on the 2d of May, 1825, gave orders to Captain Burch, Assistant Quartermaster, to proceed and collect testimony in relation to the property mentioned in the deed of trust to Captain Gadsden, as well on the part of Mr. Farrow, as on the part of the United States; to make an inventory of the property in the possession of the United States by virtue of said deed of trust; to obtain the original deed of trust from Captain De Russey, who succeeded Captain Gadsden at Mobile Point, and to make a report to the Secretary of War of the evidence taken and the papers obtained. Mr. Farrow was notified of the directions given to Mr. Burch, and was represented by his agents in taking the testimony. The result of the investigation was, that no officer or agent of the United States ever had possession of the slaves or other property mentioned in the deed of trust; that the deed was executed to Captain Gadsden to cover the property, and thereby prevent the creditors of Farrow and Harris from levying their executions on it.

Ex. Doc. 1st Sess. 19th Con. Doc. 104, p. 7.

Same, p. 8.

On the 10th of April, 1820, Farrow and Harris sold out one moiety of their contract, and one moiety of all their property, Same, p. 51. real, personal, and mixed, which was in any manner connected with the building of the said fortification, as mentioned above, to Turner Starke; the second article of which agreement is in the following words: "The said first parties agree hereby, to put the said Starke in immediate possession and custody of all the property, tools, materials, buildings, machinery, and every thing whatsoever, that now are at either of the above mentioned places [Red Bluffs, or Dauphin Island,] or which may have been, at any time, used in the operation aforesaid, one equal moiety whereof to be in his own right, and the other moiety in trust for the benefits of the first parties hereto, but to be subject

solely to the absolute control of the said Starke, until the contract first alluded to in this agreement [meaning the agreement to build the fort] is fully complied with."

By a provision in the 3d article, the slaves were to be placed in the possession of Starke

The 8th article is as follows: "That all negroes, and all the other property transferred or delivered pursuant to this agreement, shall be and remain with said Starke, and not to be sold or disposed of in any manner, or to be removed under any pretence, until the agreement with the Government is completed." Provision was made in the 9th article, to convey the property to James Gadsden, in trust, to secure the Government in the performance of the original agreement, but nothing is said of delivering possession to him; and on the same day the deed of trust was executed.

Same, p. 28. Captain Gadsden and Captain De Russey were the officers in Same, p. 27. command on that station, and they both say they never had possession of any part of the property referred to in the deed of trust. J. T. Ross, administrator of said Starke, testifies, that "Turner Starke did exercise ownership over the one-half of the negroes named, from the aforesaid tenth day of April, 1820, until the 1st day of August, of the same year; subsequently, he and his representatives have exercised ownership on the whole." The last date is the day on which Mr. Harris, for himself and for Mr. Farrow, sold and transferred to Mr. Starke, the remaining moiety of the property, not conveyed by them on the 10th of April.

The evidence procured and reported by Captain Burch haying satisfied the Secretary of War that the property mentioned in the deed of trust to Captain Gadsden, had not been in the possession of the United States, or any of their officers, no allowance was made the petitioners under the 4th section of the act of March 3d, 1825, by the then Secretary of War.

The report of the commissioner, Thomas Swann, Esq. and the evidence on which he acted, are contained in the reports of committees, 2d session 19th Congress, vol. 1, rep. 69; and the report of Captain Burch, and the depositions he obtained, are contained in the Executive papers of the House, 1st session 19th Congress, vol. 5, rep. 104, to both of which the commit

tee refer.

The 1st question is, are the petitioners entitled to any farther allowance? If they are, 2d on what account? and 3d, to what amount?

In ordinary cases, when a matter of claim is left to the arbitrament of a third person, his award is conclusive, unless the party wishing to annul it can prove fraud or corruption, or that it was obtained by undue means. Congress has not very frequently granted relief when the question has been adjudicated in one of her courts, and been decided on its merits. The petitioners were unwilling that Congress should investigate and decide their claim when it was first presented, and asked that some person or persons should be appointed for that purpose.

i