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commissioner when he made his award. The committee refer to it among the documents in the case of Gilbert C. Russell, 2 sess. 18 Con. rep. 62, p. 76.
The petitioners now state that the commissioner erred in not carrying out his own principles, and they undertake very ingeniously to shew that, according to his own data, “a cubic yard of earth excavated and removed would cost but, 44 cents, whereas the commissioner computed the expense at $0 56, and that, therefore, he was not allowed enough for the proht on the excavation by 18 cents per yard, which, on 100,000 yards, the minimum aniounts to $ 11,000, and over.” And they undertake further to show, thạt four hundred and fifty brick, the number (including wastage in removing and laying) requisite for a cubic yard of brick masonry, will cost, on the data taken by the commissioner, only $3 15, whereas he computed their cost at $4 50, making a difference of $1 35 in each cubic yard, which, in 30,000 yards, amounts to $40,500. By examining the report of the commissioner, the fallacy of these calculations will appear to be most apparent; several of the witnesses, if not all of them, had stated, that, if the works had not been abandoned, the contractors would have made large profits. To arrive at this conclusion, they estimated the expenses necessary to be incurred, at a comparatively small sum, and the time within which the works would have been completed, they put at periods, varying from eight to eighteen months; one or more of the witnesses had stated that a brick maker, with two men and a boy, would make 100,000 brick in a year, and cut the wood necessary for burning them. In order to prove the incorrectness of the conclusion of the witnesses, both as to the expense of finishing the fortification and the time within which it might be completed, the commissioner, for the purpose of argument, concedes that a brick maker, with two men and a boy, would make 150,000 brick in a year, and cut the wood for burning them; and then he demonstrates, by an arithmetical calculation, that it would require fifty brick makers, with one hundred and fifty men and boys, three years, to make the brick, without including the labor of transporting them to Dauphin Island. The petitioners avail themselves of this concession in this way. They say that three men, at $ 175 a year, and a boy at half price, would cost $612 50, and if they made 150 000 brick in a year, the cost of the brick on the yard would be $4 8, per thousand. The transportation of them they put down at $2 per thousand, and casualties at an amount sufficient to make the brick when delivered, cost $7 per thousand; and as one cubic yard of brick masonry contains (with an allowance of wastage as mentioned before) 450 brick, the cost of them is only $3 15, instead of $4 50, as estimated by the commissioner; they say, they are entitled therefore to $ 40,500, on this account.
This view of the case they think is corroborated by the testimony of Major Henry, and he is made to say, “that, in 1821, bricks were sold at Mobile for $5 62 per thousand.” Major Henry stated in his deposition that he did not know what the price was in 1821. In 1824, he heard another man say they were $5 62, per thousand. The contract made between Gilbert C. Russell and General Starke, establisbes the price of brick in 1821, to have been $ 14 per thousand.
No one, on reading the commissioner's report, could have anticipated that the hypothetical concession the commissioner made, to shew the incorrectness of the witnesses, would have been turned against him, to shew the inaccuracy of his report in a particular not at all connected with the concession. The petitioners commence in error in averaging the wages of the
laborers at $175 per year; that price is applicable to com,mon laborers. The price of brick makers was fifty dollars per month, so hat the wages di one brick maker was within $ 12 50 of the amount the pe'itioners allow in their estimate, for the brick maker, two other men, and a boy.
The petitioners have availed themselves of the liberal and generous allow. ance made by the commissioner for excavations, to prove that he did not al. low them enough. In making out his report on this part of their claim, he added one third of the labor of a common workman, as estimated by the engineers, and then awarded to them the profit of $0 27 on each cubical yard of earth excavated and removed. The petitioners deduct 52 Sabbaths, and 53 days for casualties, which leaves 260 working days, which they multiply by twelve, the number of cubical yards of earth the commissioner thought a laborer might perform in a day, and the result is, that a laborer will excavate 3,120 cubical yards of earth in a year. Taking as a data that a laborer might be hired and sustained for $175 a year, they shew, by an arithmetical calculation, that the cost of excavating and removing a cubie yard of earth is less by 111 cents, than was estimated by the commissioner. The extravagance of this calculation is made manifest, by seeing what work was performed, the number of hands engaged, and the time they were employed. Operations commenced in January, 1819, with a force of sixty-five laborers, besides mechanics, superintendents, &c. which was increased during the year, and to May, 1820, from one hundred and fifty to two hundred After 10th of April, 1820, two hundred slaves, or more, were employed until the Spring of 1821. Some of the witnesses say, that the first year was principally occupied in making preparations. Admit this to have been the case, there was nothing to interrupt the works the second year; and with all the advantages the petitioners possessed, there was but 7,250 yards of earth excavated when the work was abandoned, and the other parts of the work had progressed with but little better prospect of being completed. The committee rely on the official statement as to the work done, and not on the general declaration of witnesses.
The question of profits lies within a very narrow compass, and is easily solved, if resort is made to facts that are undisputed, instead of following the witnesses through their calculations, which have no foundation in truth The official statement proves conclusively, and is not disputed by the petitioners, that, after prosecuting the works for two years and about three months, no more work was done than by the contract price amounted to $22,052 41, and no more articles delivered than amounted to $31,252 94, making $53,305 35. This statement is made by the Treasury Department.
Mr. Swan, in his report, put these items down at $48,899 15, which gave to the petitioners $4,406 20 more than they were entitled to by the principles of the award, and more than he would have awarded if the correct account had been obtained from the Treasury
The average number of hands employed during this period was at least one hundred and fifty, and for the last year they exceeded two hundred, and were almost exclusively slaves. The petitioners pretend during this period to have expended $339,321, making a difference between the amount they say they expended and the work done, and the materials delivered, of $286,015 65. This sum must be considered, according to their own statement, as so much lost to them at the time the contract was abandoned; but still they contend that if they had been permitted to complete the contract, they would not only have regained this loss, but have made large profits on the contract. And how was this to be accomplished? They say by the employment of slaves.
A part of the laborers, from the commencement, were slaves, and we have seen that the whole forces for the last year were of this class. All the testimony goes to prove, that the brick yards, and other preparations, were made within the first year, so that the slave labor was applied immediately on the fortification or towards procuring materials.
With this amount of loss against them it is not perceived that the business could have been otherwise than ruinous. The committee, however, do not admit that this amount was expended. The sum expended, as appears by the books kept by the clerk, is
$ 100,849 82 It is stated that Turner Starke expended
70,000 00 Cargo shipped from Alexandria
Deduct the amount received
220,849 82 53,305 35
$ 167,544 47
This sum is less than the amount of loss they say they sustained; and, when considering the profits they claim, is more favorable to them than their own statement. But the committee cannot see how it was possible for them to have regained this loss and made any profits, if the works had not been abandoned. It could not have been by substituting slave labor: for that had been substituted a year. It could not have been in the fall in the price of provisions: for they had fallen before. All the witnesses concur in saying that the business was judiciously conducted after General Starke took the management of it, on the 10th of April, 1820; and notwithstanding the yards were then made, the necessary vessels obtained, and slave labor substituted, still, that an expense was incurred during that year, of 8 70,000. It has already been mentioned, that it would have taken three years to have made the bricks; and the commitlee do not see how the expenses were to be reduced in the years subsequent to the Spring of 1821, below what they were, after the 10th of April, 1820. The amount of expenses by General Starké, disproves the correctness of the calculations of all the witnesses on this point. The commissioner having allowed profits equal to about one-third of the contract on the brick-masonry and on the excavation, and having allowed $ 8,000 for damages in abandoning the work, and $ 4,000 for delaying to lay out the fortification, the committee think, so far as profits and damages are concerned, that ample justice is done to the petitioners.
The petitioners viewing the case differently themselves, applied to the 1st session of the 19th Congress for further relief. A majority of the committee was inclined to vary the principle which had been contended for by the petitioners, and adopted by the commissioner, and instead of allowing the profits that might have been made, to appropriate a sum which should cover all the expenses incurred, after deducting the payments made. Mr. Naylor, the clerk, had estimated the expenses, to April 10th, 1820, at $ 241,839, and Mr. Clark, at $ 240,000, besides about $ 45,000 furnished by Mr. Farrow, which he thought was not carried to the books; and both of them stated that their knowledge was derived from the books, which one of them kept. and to which the other had access. If the case was to be open again for investigation, and the amount expended was to be taken as the
bass, it was thought by the committee that the books should be produced, ad the subject was deferred at that session. At the 2d session of the 19th Congress a bill was reported, accompanied by a report, to which the committee refer, before the books were examined, predicated on the testimony of Mr. Naylor, principally as to the amount expended. The bill proposed to appropriate $ 39,039 85. Taking
the testimony of Mr. Naylor as correct, the committee debited the United StatesTo amount of actual expenditures, under a contract for erecting fortifications-at Dauphin Island,
$ 311,839 00 To the value of 17 slaves lost, which were kept from the possession of the contractors under a deed of trust
$ 322,039 00
And credited the United StatesBy cash, at sundry times, for work put up and materials furnished
$ 162,251 37 By 80 slaves, at $ 600 each
48,000 00 By amount of award of commissioner
$ 39,039 85 The bill not having been acted on at that session, it was reported again at the first session of the Twentieth Congress, and at the last session it was passed by the House, after deducting the sum of $ 10,200, which was paid by the acting Secretary of War on the 2d of June, 1828.
With the most profound respect for the discrimination and accuracy of the distinguished gentleman, who, as the organ of the committee, reported the bills mentioned, and with the utmost deference for the decision of the House, this committee has come to the conclusion, that the principle on which the former reports were made, is erroneous, and that the reports are not sustained by the testimony. The rule adopted by the committee “is to repay to the contractors all their actual expenditures incident to the contract; in other words, to pay them all expenses for work and labor done, and materials furnished towards the execution of the contract." Every person who enters into a contract, whether with the Government, or with an individual, hopes to derive some benefit or profit from it. Neither of these can ever be realized if the rule be correct. If the contract is one from which great profits may be made, the party for whom the labor is to be bestowed, under this rule would be tempted to put an end to the contract, and pay the “ actual expenditures incident to it.” The rule is not reciprocal, and if the party performing the labor abandons the contract because it is a losing one, he would be held to refund to the party observant, the damages he might sustain by the breach. If a contract made by the Government was ruinous to the other party, and the Government should abandon it, justice would not require that this “ actual expenditure incident to the contract” should be paid. One man, by his prudence, economy, industry, and good judgment, would make a profit on a contract, on which a man destitute of these qualifications, but possessing their opposites, would lose, and still, by the rule, they are put on an equal footing; each to be refunded his “expenditures.” If the rule is correct, the Government should go into an examination, not only of the expenditure, but of the prudence with which it was made: for it will not be contended that the Government is liable for the ex
penditure of money needlessly or wastefully made. The petitioners must make out their case, and the necessity of incurring the expense, in this view, devolves on them, otherwise the Government is bound to pay them all the money they have expended, whether necessary or unnecessary for the accomplishment of the work.
The committee will endeavor to show, that the money expended by the petitioners is far less than the amount assumed by the former committee in the report mentioned. As has been before noticed, the committee relied principally on the testimony of Mr. Naylor. A witness gains or loses credit, as the things to which he refers exist or not. Mr. Naylor was the assistant clerk of Farrow and Harris, at Dauphin Island, and he testifies " that, from his situation as superintendent in the receipt and distribution of provisions, goods, implements, and materials, and as assistant clerk in keeping a book of disbursements, he had the most ample knowledge of the expense and cost which the contractors had been at, in the prosecution of said works up to the time that General Starke took the contract of them. This deponent says, he has carefully examined the books of said Farrow and Harris, and finds from entries made either in the hand writing of the other clerks or of this deponent, actual expenditures up to May, 1820, of at least $ 241,839, which sum does not include, in the opinion of this deponent, all the disbursements made by the said Harris and Farrow; but what, in addition, might have been expended by them, which neither passed through his hands, nor was entered in their books, this deponent cannot undertake to say.” He relies upon his own recollection, and upon the books; the first may be inaccurate, the second cannot be, if they were faithfully kept; and whether they were or not, is of no importance in putting his testimony to the test: for he states he has examined them, and he gives the result as mentioned above. He says that they expended under General Starke $ 70,000, making the whole $ 311,839. And this is the sum taken by the committee as the amount they expended. On examining the books, it is found that they show an expenditure of no more than $ 100,849 82, to which add the $ 70,000 expended by General Starke, and $ 50,000 expended by Mr. Farrow, as testified to by Mr. Green, and the whole amount of the expenditures, appearing on the books, or by parol testimony, not referring to the books, is $ 220,849 82, making a difference between the sum taken by the committee of $90,989 18. The amount on the books as stated above is corroborated by the testimony of Dr. Sallie; he says, that, when General Starke took the management of the works, the contractors had expended about $ 100,000.
The whole amount of money paid, is $254,037 81, as follows, to wit: Money advanced and charged on the books of the Treasury, $170,090 03 Award of Mr. Swann,
73,747 78 Paid by order of the acting Secretary of War,
$254,037 82 Acccounted for as follows: By work done and materials delivered, as evidenced by the books,
$100,849 82 Furnished by Farrow, as testified by Green, 50,000 00 Expended by and under General Starke, 70,000 00
220,849 89 Amount to balance,