doubt that justice has been done to the Indians in these purchases also. Certain it is, that the transactions of the federal government with the Indians have been uniformly characterized by a sincere and paramount desire to promote their welfare; and it must be a source of the highest gratification to every friend of justice and humanity to learn, that notwithstanding the obstructions from time to time thrown in its way, and the dif ficulties which have arisen from the peculiar and impracticable nature of the Indian character, the wise, humane, and undeviating policy of the government in this, the most difficult of all our relations, foreign or domestic, has at length been justified to the world in its near approach to a happy and certain consummation.

The condition of the tribes which occupy the country set apart for them in the west, is highly prosperous, and encourages the hope of their early civilization. They have, for the most part, abandoned 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 toward the United States; and it is to be hoped that the acquisition 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 guarantied to them its peaceful 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 can not be too much insisted upon. The earliest effects will be to diminish the causes 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 for 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 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.

to.

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 fifteen hundred in 1837 and 1838, leaving in the country, it is supposed, about two thousand 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 them until they are totally expelled from Florida.

There are other motives which would urge the government to pursue this course toward the Seminoles. The United States have fulfilled in good faith all their treaty stipulations 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 of 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 purpose of experience and discipline, and the protection of our commerce. So effectual has been this protection, that so far as the information of government extends, 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 or 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 animates the officers and crews, and there is every reason to anticipate, from its efforts, results beneficial to commerce and honorable 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 officers, 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 that 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 pro tection, precisely in the degree of its extension; a due regard to the national rights and honor; 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 postoffice 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 one hundred and thirty-four thousand eight hundred and eighteen miles, and the annual transportation upon them thirty-four millions five hundred and eighty thousand two hundred and two miles. The number of postoffices in the United States is twelve thousand five hundred and fifty-three, and rapidly increasing. The gross revenue for the year ending on the 30th day of June last, was four millions two hundred and sixty-two thousand one hundred and forty-five dollars. The accruing expenditures, four millions six hundred and eighty thousand and sixty-eight dollars; excess of expenditures, four hundred and seventeen thousand nine hundred and twenty-three dollars. This has been made up out of the surplus previously on hand. The cash on hand, on the first instant, was three hundred and fourteen thousand and sixty-eight dollars. The revenue for the year ending June 30, 1838, was one hundred and sixty-one thousand five hundred and forty dollars more than that for the year ending June 30, 1837. The expenditures 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 postmastergeneral'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 essential 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 its 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 Columbia.

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 postoffice department, which award the postmaster-general declined to execute in full, until he should receive further legislative direction on the subject. If the duty imposed on the postmastergeneral 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-general was to be considered as 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 postmaster-general 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 conferred 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 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 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 cases 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 circuit court of this district, passed the 27th 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 13th 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 extra-judicial prerogative powers of the court of king's bench, in England, or that either of the acts of Congress, by necessary implication, authorizes 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 Columbia to another, and a very different one. In the district their official conduct is subject to a judicial control from which in the state they are exempt.

Whatever difference of opinion may exist as to the expediency of vesting such a power in the judiciary, in a system of government constituted like that of the United States, all must agree that these disparaging discrepancies in the law and in the administration of justice, ought not to be permitted to continue; and as Congress alone can provide the remedy, the subject is unavoidably presented to your consideration.

SPECIAL MESSAGE.

DECEMBER 6, 1838.

To the Senate and House of Representatives of the United States :THE act of the 1st July, 1836, to enable the executive to assert and prosecute, with effect, the claim of the United States to the legacy bequeathed to them by James Smithson, late of London, having received its entire execution, and the amount recovered and paid into the treasury having, agreeably to an act of the last session, been invested in state