Congress passed the act of August, 1852, the government had assumed to take the entire control of setting the buoys in that part of the Hudson river, &c.

Mr. Smally also says, June 29, 1854: "Previous to the passage of the act of August 31, 1852, I had set the buoys in that part of the Hudson river, under the authority of the common council of the city of Troy. When the act of August 31, 1852, was passed, the common council of the city of Troy ceased to take any further action in the matter."

It will be observed, from the foregoing statement, that the petitioner first claimed remuneration for services, and for furnishing buoys, from June, 1852, to June 24, 1853, and states that he had not been paid for that period by the common council of Troy. When informed that no such act had been passed in June, but that an appropriation for six spar-buoys had been made on the 31st August, 1852, the statements are reiterated as to the performance of service and refusal of payment by the common council of Troy, with merely the correction of the date as given to him.

In the petition to Congress, the petitioner states that he contracted "to furnish and set six spar-buoys in said portion of the Hudson river, at the rate of $500 per year, and has continued since to furnish and set said buoys." This last statement is not exactly correct, as will be seen by referring to the terms of the contract, as set forth in the first part of this report.

The contract of June, 1853, was for furnishing the six spar-buoys, &c., complete, and for placing and keeping in place for one year, $500. The present contract with Mr. Smally is for keeping the buoys in that part of the river in place for one year, at the rate of $300, in conformity to the terms of the published proposals.

Mr. Smally was called upon to furnish a detailed statement of materials, &c., furnished by him, with vouchers, or such other evidence as he had of the validity of his claim; but he furnished, instead of vouchers or other evidence of his having purchased spars and other materials for this service, and that he actually placed buoys, a bill for $313, as

follows:

Eighteen buoys, furnished from August 31, 1852, to the close of navigation in December...

Labor, services, and expenses to the close of navigation.. Resetting and attending to the buoys from the opening of navigation to June 24, 1853.

$108

115

90

313

If the 18 buoys were procured and placed in 1852, and reset in 1853, on the opening of navigation, there could have been no necessity for providing the six authorized by law, and paid for according to the contract of 1854; and to pay for them again, would be to pay twice for the same buoys.

On the 18th of August, 1854, a full statement of the case was sent to Mr. Smally, the discrepancies in his petition and replies to inter

rogatories pointed out, and he was informed that, as he had failed to show that he had any authority for performing the service which he claimed to have performed, his claim would be reported against, unless he could furnish evidence that he had performed work for the government in conformity to a contract, or by direction of an authorized

officer.

it appears from the foregoing

1. That no claim was set up by Mr. Smally until June, 1854, one year after he had contracted for this service.

2. That there is an important discrepancy in the statements as to the time when the common council of Troy ceased to pay him for taking charge of the buoys.

3. That he assumes to determine at what time an act of Congress shall take effect, without regarding the provisos and stipulations to the act; and that the government is bound to pay him according to his own construction, enunciated at a period long subsequent to the performance of the alleged services, although he neither asked nor received authority from the superintendent of lights, or other government officer authorized to act in the matter at the time.

4. That he has failed to furnish any evidence of the correctness of the charges now made.

It is, therefore, the opinion of this board that Mr. Smally has no just claim to remuneration, and that to allow him any part of his claim would be sanctioning the principle that any individual has the right to construe and act upon laws of Congress irrespective of the Executive, whose duty it is to see that the laws are faithfully executed. The papers in this case are herewith returned.

Very respectfully, your obedient servant,

W. B. SHUBRICK,

Hon. JAMES GUTHRIE,

Secretary of the Treasury.

Chairman Light-house Board.

JUDAH TOURO-LEGAL REPRESENTATIVES OF.
[To accompany bill H. R. No. 740.]

FEBRUARY 8, 1855.

Mr. KERR, from the Committee on the Judiciary, made the following

REPORT.

The Committee on the Judiciary, to whom was referred the memorial of the legal representatives of Judah Touro, deceased, have had the same under consideration, and beg leave to report :

In the year 1795 the Baron Carondelet, governor general of the Spanish province of Orleans, granted to one Anthony De St. Maxent a tract of land, situated on the Mississippi river between the Bayou Leard and the Bayou Cavancoo, consisting of five thousand five hundred and seventy-five acres and forty one-hundredths of an acre, for agricultural purposes. Upon this land was situated an old Spanish fort called Fort Bourbon, and, reserving that fort expressly, the grant contained the following conditions: 1st, that by no means should the grantee clear the timber off the point which hides the Fort Bourbon, because this must remain always so as not to be seen or exposed to the fire of the boats which may ascend the river before they get above the point aforesaid.

2d. That within the distance of 200 toises from Fort Bourbon no building whatsoever shall be erected, nor anything else that may obstruct the view of the fort, within the distance of 200 toises, in which it shall not be permitted to dig canal or ditches that might incommode. 3d. That it is reserved for his Catholic Majesty the use of said lands situated between the Bayou Leard and the Bayou Cavancoo, as aforesaid, whenever he shall want it for any fortification. By the treaty of Spain transferred the provinces of Orleans and Louisiana to France; and by the treaty of 1803, France transferred them to the United States. By an act of Congress, passed in the year 1807, commissioners were appointed to investigate and ascertain the rights of persons claiming lands in the Territories of Orleans and Louisiana; and those commissioners were clothed with full power to decide upon all claims brought before them according to the established usages and customs, and laws, of the French and Spanish governments; and the decision of the commissioners, when in favor of a claimant, is made final against the government of the United States.

It appears that on the 23d June, 1809, the board of commissioners met, and the claim we are now considering was brought before it, and the following decision was made by the board, viz: "It appears that an order of survey for said land was duly issued by the Baron de Carondelet in favor of Anthony de St. Maxent, from whom the claimants derive their title, dated the 14th January, 1795. which the board do hereby confirm agreeable to the terms and conditions specified in the petition, reserving to the United States the grounds within 200 toises of Fort Bourbon."

Referring to the petition which De St. Maxent presented to the Baron de Carondelet, we find the terms and conditions therein specified to be as follows: That the petitioner would clear all the ground which the governor general should describe as the boundaries of Fort Bourbon, and would carry the levee behind the fort, so as to protect it from high water. The petitioner also obliged himself to clear the land and comply with the ordinance.

When the commissioners confirmed this claim, it was the property of James Smith and Harriss Hooe, who were the assignees of Anthony de St. Maxent. Smith and Hooe subsequently assigned it to Judah Touro, late of New Orleans, deceased, and the memorialists are the legal representatives of said Touro.

It does not appear that application was ever made for a patent for these lands until 1847, when Smith and Hooe applied, and a patent issued, which they refused to accept, upon the ground that it contained a reservation to the United States of the area within the distance of one thousand five hundred Castilian varas, from the most salient points of the extreme outworks of Fort Jackson. Fort Jackson was established in 1842. Such are the facts of the case; and upon these the memorialists ask that Congress will indemnify them for the use which the government has made of their private property, appropriated to public uses in the construction of Fort Jackson, and the reservation of 1,500 Castilian varas around it, and also for any consequential damages which they may have sustained by reason of the injury done to the whole tract of land by the erection of Fort Jackson upon it.

The government claims the right to make the reservation referred to for Fort Jackson, upon the ground that the third condition of the grant of the Baron de Carondelet to Anthony de St. Maxent secured that right to the King of Spain; and succeeding the government of Spain in the sovereignty of the Territory of Orleans, the United States have the same rights that the King of Spain possessed in respect to the land.

It may well be questioned whether the King of Spain, by virtue of the condition contained in the grant from Carondelet, had any such right as is contended for by our government. The grant, upon its face, purports to be a grant to De St. Maxent and his heirs, and the estate created by it, therefore, is, by the rules of common law, a fee simple; the land was granted for agricultural purposes, and it is not to be supposed that it ever was the intent of the parties to create such an interest only as a mere tenantry at the will of the sovereign; such a condition is repugnant to the nature of the grant and the views and aims of the parties. Upon this point it has been very well argued, first, that there is no express declaration in this grant that the holder of the lands she'l

not be entitled to indemnity whenever the King shall extend his fortifications beyond the lines of Fort Bourbon; and secondly, that the express exception of the site of Fort Bourbon from the terms of the grant would have been idle and unnecessary if the King and his grantee both intended that the whole or any part of the land might at any time. thereafter be used gratuitously for military purposes. Therefore the particular exception to the King of the site of Fort Bourbon, shows very clearly that all the rest of the land was to pass as the private property of De St. Maxent, and to be held by him as sacredly as the property of any other subject, subject only to the stipulated power at any time to erect other fortifications thereon, and leaving the question of compensation to stand upon the general laws of Spain, as well as on general principles of justice and equity.

But waiving entirely this view of the case, it seems clear to the committee that after the confirmation of this grant by the commissioners of the United States, the third condition of the grant from Carondelet was annulled, and the title confirmed to Smith and Hooe upon the terms mentioned in the order of confirmation alone. We have seen that these terms are the conditions mentioned in the petition of De St. Maxent to the Baron Carondelet, namely, that he should clear the land and erect a levee behind the Fort Bourbon, &c.

The act of Congress of 1807 creating the board of commissioners, empowered them to adjudicate all such claims as this according to the established laws, customs, and usages of France and Spain, and made their decisions final and conclusive when favorable to claimants. Doubtless the commissioners, with all proper care and diligence, investigated the laws of Spain touching the right of the sovereign to take private property for public use, and touching, also, the construction of grants from the crown or the ministers of the crown; and the result of their labors in this respect, as we have seen, was to place upon the grant in question a construction different from that now insisted on by our government.

The decision being favorable to the claimants, is final; and it follows that the memorialists have a fee simple estate in the lands in question upon which Fort Jackson is erected; and as the government has appropriated private property for public use, it is bound to make just compensation for it.

The committee therefore report a bill for the relief of the memorialists.