The Liverpool Standard and General Commercial Advertiser.
Liverpool, Merseyside, England, 1838-12-21 00:00:00

and the army has been extensively ar.d usefully employed
during the past season.
I would again call to your notice the subjects connected
with, and essential to, the military defences of the country,
which were submitted to you at the last session, but which
were not acted upon, as is supposed for want of time. The
most important of them is the organization of the militia on
the maritime and inland frontiers. This measure is deemed
important, as it is believed that it will futnish an effective
volunteer force in aid of the regular army, and may form the
basis for a general system or organization for the entire mili-
tia of the United States. The erection of a national foundry
and gunpowder manufactory, and one for making small arms,
the latter to be situated at some point west of the Alleghany
mountains, all appear to be of sufficient importance to be
again urged upon your/attention.
The plan proposed by the Secretary of War for the distri-
bution of the forces of the United States in time of peace, is
well calculated to promote regularity and economy in the
fiscal administration._ of the____tervice, to preserve the disci-
pline of the troops, and to render them available for the main-
tenance of the peace and tranquillity of the country. With
this view, likewise, I recommend the adoption of the plan
presented by that officer for the defence of the western fron-
tier. The preservation of the lives and property of our fel-
low-citizens who are setiled upon that border country, as
well as the existence of the Indian population, which might
be tempted by our want of preparation to rush on their own
destruction and attack the white settlements, all seem to re-
quire that this subject should be acted upon without delay,
and the War department authorised to place that country in
a state of complete defence against any assault from the nu-
merous and warlike' tribes which are congregated on that
border.

It affords me sincere pleasure to be able to apprise you a
the entire removal of the Cherokee nation of Indians to their
new homes west of the Mississippi. The measure authorised
by Congress-at its last session with a view to the long stand-
ing controversy with them, have had the happiest effects. By
an agreement concluded with them by the commanding ge-
neral in that country, who bas performed the duties assigned
to him on the occasion with commemorable energy and hu-
manity, their removal has been principally under the con-
duct of their own chiefs, and they have emigrated without
any apparent reluctance. The successful accomplishment
of this important object; the removal also of the entire Creek
nation, with the exception of a small number of fugitiaes
amongst the Seminoles in Florida; the progress already
made towards a speedy completion of the removal of the
Chicksaws, the Choctaws the Pottavratamies the Otawas
and the Chippewas with the extensive purchases of Indian
lands during the present year, have rendered the speedy and
successful result of the long established policy of the govern-
ment upon the subject of Indian affairs entirely certain.
The occasion is therefore deemed a proper one to place
this policy in such a point of view as to exonerate the
Government of the United States, from the undeserved re-
proach which has been cast upon them through several suc-
cessive administrations. That a mixed occupancy of the same
territory by white and red man, is incompatible with the
safety or happiness of either is a position in respect to which
there has long since ceased to be room for a difference of
opinion. Reason and experience have alike demonstrated
its impracticability. The bitter fruits of every attempt here-
tofore to overcome the barrier imposed by nature, have only
been destruction both physical and moral, to the Indian;
dangerous conflicts of •authority between the Federal and
State Governments—and detriment to the individual prospe-
rity of the citizen, as well as to the general improvement of
the country. The remedial policy, the principles of which
were settled more than thirty years, under the administration
of Mr. Jefferson conststs in an extinction for the consideration
of the title to all the lands still occupied by the Indians within
the States and Territories of the United States; theii remo-
val to a country West of the Mississipi, much more exten-
sive and better adapted to their condition than that on which
they then resided; the guarantee to them by the U.S. of their
exclusive possession of that country for ever, exempt from all
intrusions by white men, with ample provisions for their
secursty against external violence and internal dissensions,
and the extension to them of suitable facilities for their ad-
vancement in civilization. This has not been the policy of
particular administrations only, but of each in succession
since the first attempt to carry it out under that of Mr.
Monroe. All have laboured for its accomplishment, only
with differentdegrees of success. The manner of its execu-
tion has, it is true, from time to'time, given rise to conflicts
of opinion and unjust imputations; but in respect to the
wisdom and necessitity of the policy itself; there has not, from
the beginning, existed a doubt in the mind of any calm,
judicious disinterested friend of the Indian race, accustomed
to reflection and enlightened by experience.
[The Message then enters into a justification of the conduct
pursued by the American government towards the Indian
tribes, especially in reference to the cession of lands made on
the west side of the Mississippi. It then proceeds to remelts
upon the condition of the Indians.]
The condition of the. tribes which occupy the country set
apart for them in the west, is highly prosperous, and en-
courages the hope of their early civilization. They have,
for the most part, abandoned the hunter s:ate, 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 plant-
ers 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
to their unavoidable destiny. They have found at once a
recompense for past sufferings, and an incentive to indure
trious habits, in the abupdance and comforts around them.
There is reason to believe that these tribes are friendly iu
aheir feelings towards the United States; and it is to be hoped.
that the acquisition of individual wealth, the pursuits of agri-
culture, and habits of industry, will gradually subject their
warlike propensities, and incline them to maintain peace
among themselves. To. effect this desirable object, the at-
tention Of Congress is solicited to the measures recommend-
ed by the Secretary of War, for the 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 per-
manent home, and guarranteed to them its peaceful and undis-
turbed possession. It only remains to give them a govern-
ment and laws which will encourage industry, and secure to
thesis the rewards of their exertions. The importance of
some form of government cannot be too much insisted upon.
The earliest effects will be to diminish the causes and occa-
sions 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 re-
commended by the Secretary of War, which have been al-
ready referred to. Without them the' government will be
powerless to redeem the pledges,of protection to the emigra-
ting Indian against the numerous warlike tribes that sur-
f round their, and to provide for the safety of the frontisr.set-
tiers of the oorderine states.
The ease of the Seminoles constitutes at present the only excep-
tion to the succesful efforts of the government to remove the Indians
to the homes assigned them west of the AI ississipi. Four hundred
of this tribe emigrated in 1836, and fifteen hundred in 1837 and
1838, leaving in the country it is supposed, about 2000 India, s.
The continued treacherous conduct of these people • the savage at d
unprovoked murders they have lately committed, butchering the
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 light-houses along that dangerous
coast; aed the barbarity with which they have murdered the pas-
sengers 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 towards 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 open a like per-
formance of their obligations. To relax from this salutary rule,
because the Seminoles have maintained themselves so long in the
Territory they had relingui hed, and, in defiance of their frequent
and solemn engagements, still to continue to wage a ruthless war
against the United States, would net evince a want of constancy on
our tribes. Experience has shown that but little is to he gained by
the march of armies through a country so intersected with inacces-
sible swamps and marches, and which, from the fatal character of
the climate, must he abandoned at the end of the winter. I recom-
mend, therefore, to your attention the plan submiited by the Sec-
retary of War in the accompanying report. for the permanent oc-
cupation 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 Nexy, herewtth trans-
mitted, it will appear that a large portion of disposable naval force
is either actively, employed, or in a state of preparation for the
purposes of experience and discipline, and the protection of our
commerce. So effectual has been this protection, teat, so far as
the information of Government extends, not a single outrage has
been attempted on any vessel carrying the flag of the U. States,
within the present year, in any quarter, however distant or ex-
posed.
The exploring expedition sailed from Norfolk on the 19th Aug.
last, and information rias 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 effects, results
beneficial to commerce and honourable to the nation.
It will also be seen that no reduction of the force now in com-
mission 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 em-
barked 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 squodron may be em-
ployed to great advantage on our Atlantic coast, in meeting sudden
'demands for'the reinforcement of our stations, in aiding merchant
vessels in distress, in affording active service to an additional
number of officers, add in visiting the different ports of the
United States, an accurate knowledge of which is obvious y of the
highest importance.
The attention of Congress is respectfully called to that portion
of the repoi krecommending 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 abso-
lute necessity of a naval force for its protection precisely in a de-
gree of its extension : a due regard to the national rights arid
honour ; their collection of its former exploits, and the anticipa
than of its future triumphs whenever opportunity presents itself,
which we may rightfully indulge from the experience of the past;
ail 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 Post Office Department will
he seen by reference to the report of the Post-master General.
The extent of post roads, covered by mail contracts, is stated to be
134,818 miles, and the annual transportation upon them 34 580,20.;
miles. The number of post offices in the United states is 12,533,
and rapidly increasing. The gross revenue for the year ending on
the 30th day of June last, was 4 202,145.000 dollars. The accruing
expenditures 4,480,068,000 dollars ; excess of expenditures
417,923.000 dollars, This has been made up out of the surplus
previously on hand. The cash on band on the let instant was
211,068,000 dollars. The revenue for the year ending June 30,
1838, was 161,540 dollars more than for the year ending June 30,
1837. The expenditures of the department lied 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
embarrasment. 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 Post-
master General's report as relates to the transportation of the,
mails upon railroads. The laws on that subject do not seem ade-
quate to secure that service, now become almost essential to the
public interests, and at the same time protect the department from
unreasonable demands.
Nor can I too earnestly request your attention to the necessity
of providing a more secure building fdr this department. The
danger of destruction to which its important books and papers
are continually exposed, as well from tire highly combustible cha-
racter of the building occupied, as from that of others in the vi-
cinity, calls loudly for prompt action.
Yaur attention is again earnestly invited to the suggestions and
recommendations submitted to the last session in respect to the
District of Columbia.
I feei it my duty, also, to bring to your notice certain proceed-
ings at law which have recently been prosecuted in this District,
in the name of the United States. on the relation of Messrs. Stock-
ton anc 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 com-
mon law writ of mandamus, issued by the circuit court of this
District.
The facts of the case, and the grounds of the proceedings, will
he found fully stated in the report of the decision ; and any ad
ditional information which you may desire will be supplied by the
. proper department. No interference in the particular case is con-
templated. The money has been paid : the claims of the prose-
cutors have been satisfied ; and the whole subject, vs far as they
are concerned, is fin ally disposed of; but it is on the supposition
that the case may be regarded as an authoritative exposition of
of the law as it now stands, that I have thought it necessary to pre-
sent 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 Post-office de-
partment,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 Postmaster-General, 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 con-
sidered as merely ministerial, and not executive. it yet remained
to be shown that the circuit court of the 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 a ministerial nature. The grave constitutional questions
which hail been discussed were, therefore, exlcuded from the de-
cision of the case; the court, indeed, expressly admitting chat,
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 con-
ferred upon the circuit court of this district the power to issue such
a writ to ari officer of the General Government, commanding him
to perform a ministerial act? A majority of the court have de-
cided that it has, but have. founded their decision upon a process o f
reasoning, which, in my judgment, renders further legislative pro-
visions indispensable to the public interests and the equal adminis-
tration of justice.
It has long since been decided by the Supreme Court, that neither
that tribunal nor the circuit courts of the U. S. held within the re-
spective 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 constitntion, 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 seve-
ral sections of the law establishing the court. One of taese sec-
tions deelkres, that the laws of Maryland, as they existed at the
time of the cession, should be in torce 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,—hecause 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 pre-
sent in construction of law,—alone possesses the high power of
issuing a 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 exer-
cise
this power, and as the circuit court of this district is a court of
generaljurisdiction 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. Ant:ober ground
relied upon to maintain the power in question, is, that it was in-
cluded, by fair constuotion, in the power it gran tedito circuit courts
of the United States, by the act " to provide for the more conve-
nient 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 day 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 the 13th of 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 transcendant extra judicial prerogative
powers of the Court of Queen's Bench, in England, or that
either of the acts of Congress, by necessary implication, au-
thorize the former court to issue a writ of mandamus to an
officer of the United States, to compel him to perform a mi-
nisterial duty, the consequences are, in one respect, the same
The result in either case is, that the officers of the United
States are, in respect to the performance of their official du-
ti's,subject to (Efferent 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 dis-
t. trici their official conduct is subject to a judicial control,
from whtch in the States they are exempt.
. . .

Whatever difference of opinion may exist as to the expe-
diency 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.
M. VAN BUREN.
'WASHINGTON, DEC. 3, 1838.