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For all documents Source: National Archives Microfilm Publications, Microcopy 574, Roll 4. Transcribed by Roy Boney, Jr. 0452 A
contract was entered into between Genl. N. Smith and Williamson Smith
on the 0453 It
appears by letters of the 6th and 16th June 1838
from Genl.
N. Smith to Mr. W. Smith that the reasons of his to procure a second
steam
boat, and [???] that he [?] it in readiness by the 25th if
possible. A
claim is pursued which is [?] supposed violation of their contract
– that in [?] – The
1838
April 6th For transportation of Cherokees for Tuscumbia
2nd Detachment to June 3rd
Detachment to Little Rock
10,000 July
4th Detachment – Do
10,000
$42,250 O.
by cash on afc.1st party
$2500 “---------“
--------------- 2nd d.
5965.75 “---------“
--------------- 3rd d.
7240.00 “---------“
--------------- 4th d.
7458.75
23,164.50 - 23.164.50
19.085.50 The
steam boat Brighton lying at Demurrage
on 2 week from 12th July to 1st day of November
1838-
3ms} Demurrage
on the Smelter from the 26th
of July to 1st Nov. at $350}
$21,250.50 0454 (date13
Dec. 1838) Below
the affidavit of Mr. Williamson Smith and to copying accounts thus
further charge- The
United States to Williamson Smith for damages sustained in consequence
of
failure to furnish in all 6000 Cherokee Indians for transportation,
agreeably
to contract of October 24, 1837 -------------------------
$ Accompanying
the claim is the certificate of Messrs Mr. Baylor, C. Heslip, C. Roney
Canon,
M.H. Reese & Co., and Isaac H. Walker, that they and Mr. Williamson
Smith
“became interested in the said boat” ( It
is not alleged that 4000 Cherokees were transported as presented in the
claim. That account is made, on the idea
that W. Smith was bound to furnish 1000 each trip, that Mr. Smith had a
right
to charge the United States only to pay him for commencing,
altho’, he
transported few more than half that number. The
statement is an exhibit of the claim, [?] of the
service
professed. The letter of Genl. Smith, of
27 Nov. last, to W. Smith, says, “I called on them in January,
February, and
March, and last was the influence of their leading men on them, that I
only got
off about 250, the last of March, and was unable until in June to set
off a
second party, [??] that their 0455 promise
for [?] to walk that they would go. In
June I started three parties of some 1000 each (as my correspondence
with the
Department will show, believing that I could not by any call on you, to
transport less than that no.) but they deserted until few one half
reached
their new homes, as the muster rolls will show.”
The number carried by W. Smith does not
appear, but as the ? from and until ? for the actual service rendered,
a [?]
after 1st, 3rd, and 4th ? by 10 went
of the 2nd
by 12. 25 [?] as to the number actually
transport, 2200. If
[???] that the [?] of the contracting parties was that Genl. Smith
should in good
faith in [???] to furnished 6000 Indians to the party for water
transportation,
and that he did so. If he had delivered
them to anyone else for this purpose, or had therein manifested bad
faith then
would be just and loyal ground of claim. By
the terms of the contract, “if [?] number
of Cherokees shall not
consent to emigrate or be transported by water, the 0456 The
[?] item of claim is for the demurrage for the steam boat, Brighton,
from 2nd to There
is no said sum that she was there. This
being found, I think an [?] should be made for the time, but [?] it
rate of $50 per
day. The contract [?] that no demurrage is
to be [?]” save for necessary expense during the [? ?], which in
[?] occurred fifty
dollars a day.” The measure of whom
were
them is the expenses, which [??], on the amount, up to such time, as it
may be
reasonably presumed would be paid before
Mr. Smith would come to the knowledge of the arrangement with John Ross. I do not see any promise upon which the
charge made can be sustained by [?] what I have just stated. The whole county knew of the agreement,
Cherokees men actually collected and [?] under it, before 1st
November, and yet Mr. Smith charges up to that day, because [?]
officially
informed that his boats would not be wanted. The
[?] should have been [?] him, but if he [?] by
the knowledge in any other
way, the substantial [?] of justice are [?]. These
men [? ?] of the claim for demurrage between
12 July and 1 Nov.
last, and apply to the charge of demurrage for the steam boat Smelter. The
item for [?] delivery “in all 6000” Cherokee Indians and
damages consequent
thereon, remains no specific sum is claimed. A
large majority of the Indians, under the direction
of leading chiefs
was unwilling to go west in any other [?. ?
?] that which then chiefs should deduct. The
council of the nation specified, it is
the [?], the sense of [?] they [?], and manifest their [?] to a world
by any of the [?] than
their own. This was a [?] to emigrate with
W. Smith, and is within the spirit of the contract.
They virtually refused to go from Tusucmbria
by water. It is not, I admit within the 0457 words
of the agreement, but it is written, which, I suppose to be, the intent
of the
parties. The design was that if the
Indians
would consent to emigrate, and “to go by transport by
water”, under the
direction and control of So
far as it was practicable that was done. The
diminution of number transported in [?] of the
four trips, was conveyed
by the upset of the Cherokees to go, as expected by their acts, and it
is the
event promised for in the contract. The
failure to [? ?] which 6000 was owing to the same cause, and the
agreement with
Mr. Ross was in a dispute from the place of emigration of which W.
Smith’s
transportation was a part. Office
Indian Affairs- [?]
Crawford Emigration
Cherokees S810
0280 PAID Feb.
23
D.C. 0281 Mr.
Dear
Sir, I
enclose you my supplemental contract with the names of my securities
according
promise though not quite so soon or was expected. The
reason for not attending to it at an
earlyer date is that I have been confined almost ever since my return
home by a
severe spell of sickness. I
have just had an interview with James Walker who informs he has wrote
on the
subject of authorizing me to draw on the department for $6,000 which is
the
amount of my first payment for the steam boat which I purchased for
transporting the Cherokees. I hope you
will comply with the request of esq. in this matter.
This I have but little doubt you will
do. If my recollection serves right, you
told when I was in Washington City where I was prepared to commission
service
my boats all ready and you would there give me such authority as is now
asked
for. I am now prepared and have been
since the 19th of January. I
herewith enclose you a copy of the notice given to Genl. Nathl. Smith
superintendent of Cherokee Emigration by Capt. Daniel Deshill who
commands the
steam Smelter which I purchased for 0282 transportation
of the Cherokees. The keel boats are
also ready. I have bought a much better
set of boats than my contract required. They
are fitted up in the best stall. The steam
boat has only run about 8 months and will
carry 225 low. They have cost me a great
deal of money and
in consequence of the emigrations not commencing as was expected have
made no
money of any consequence is the reason I am not asking the favor of you
of
drawing on you. The
boat has made one trip to Should
you give authority to me to draw as requested please forward it to
Thos. J.
Reed and Son at 0283 Col.
Williamson Smith 0284 W.D.O.J.
and Col.
Williamson Smith, care of Thos.
J. Reed and Son Sir, I
have had the honor to receive your letter of the 23rd
instant,
inclosing the supplement to your contract for transportation of
Cherokee emigrants.
(Sentence scribbled out and illegible.) (The
following has been marked out with five large Xs across the page, but
is still
legible) In
reply I have to inform you that you have permission to draw upon this
office
for the above mentioned sum, provided you shall make your bills payable
in this
city, and in current funds. Such drafts,
so payable on the face of them, to the amount of $6,000 will be duly
honored. 0285 blank 0286 Genl.
Nathaniel Smith Dear
Sir, I
have to report myself at this place in command of the steam boat
Smelter with
her barges prepared to fulfill Col. Williamson Smith’s contract
for the removal
of Cherokee Indians. Very
Respectfully, Daniel
Deshialls 0315 Hon.
Dear
Sir, I
have the honor to inform you we arrived at You
will discover there was not the number delivered to me at Tuscumbia
that my
contract required I should have each trip. You
will find by referring to the contract
“they were to be sent in such
sized parties say of one thousand or more as the means of safe and
comfortable
transportation may admit, etc.” I
presume you have been advised by this time that I had complied with my
contract
to the true spirit and meaning of it both in furnishing a first rote,
new steam
boats and keel boats. If the government
has not complied on his part in providing the number of Indians each
trip it
was not my fault. I have every
confidence that the department did not require me to make so expensive
an
outfit and then send me off with 250 Indians at $10 per head. 0316 thousand
Indians. This may seem a high price, but
I assure you the boat could have made more money while one has been
lying idle
waiting for the Indians. The demurrage
fifty
dollars per day I pledge my honor does not pay for expenses aside from
the
natural wear and tear of the boat. As I
have before informed you, I have incurred a heavy debt and have been
much
disappointed in the delay that has taken place. I
have therefore to ask the favor of you if consistent with the
department to
order the payments of the first trip at Calhoun one advised me of it at
From
feelings of delay (I presume) Genl. Smith refers that part of the
contract to
you, which relates to the carrying one thousand at each trip. I would by leave to call to your recollection
the frequent conversation we had while I was in I
have the honor Williamson
Smith 0317 Col.
Wml. Smith 0318 Apl.
28 Sir: I
had the honor to receive your letter of the 17 ult. I
regret exceedingly that the Cherokees have not been got off with
greater
rapidity, and that he expectations so confidently entertained when your
contract was made have not been realized. The
amount you claim however for compensation for
removing he part of
250 ($10,000) cannot be admitted. It is
true, you are not bound to carry parties of less than 1,000 in number,
but if
you do so, you can only be paid for those actually transported. It is a voluntary thing your part, and it is
manifest that paying for1,000 when only 250 on carried could not under
any
circumstance be justified. Gen.
Smith [?] be furnished with a copy of this letter and requested to
cause the
emigration disbursing officer to pay the amount due you. Col.
Williamson Smith 0319 Genl.
N. Smith Apl
. 28 Sir: I
have the honor to transmit the copy of a letter of this date to Col. W.
Smith
in relation to a claim made by him for compensation for transporting
1000
Indians although only 250 were actually carried. You
will be pleased to cause Col. Smith to be
paid according to the tenor of the letter to him. Very,
etc. Calhoun, 0321 Blank 0322 State
of Before
me G.D. Tillermen as acting Justice of the Peace for said county
previously
appeared Daniel Dashill and made oath that he was Captain of the steam
boat
belonging to Williamson Smith about the year 1838 (of the precise date
officiant is not positive) that during that year the said boat was
detained at
Waterloo waiting for Indians which the general government had
contracted with
Williamson Smith the aforesaid owner to carry and remove to Arkansas;
that he
thus said Daniel Dashill was the Captain and Commander of said boat
under a
salary of one hundred and fifty dollars per month, that P.H. Mitchell
was the
clerk on said boat at a salary of one hundred dollars per month, that
Mr.
Ferguson was first mate at a salary of fifty dollars per month, that
James
Hammell was second mate at a salary of twenty dollars per month,
besides them
were two engineers, who man the engine who were jointly receiving one
hundred
twenty-five dollars per month and one carpenter at a salary of forty
dollars
per month, and for deck hands and six ferimen at twenty-five dollars a
month
each, besides the cooks, there was [?] [?] cabin servants whose wages
amounted
to seventy five dollars per month. The
said boat was detained at 0323 salary
amounted to the sum of two hundred dollars per month.
Daniel Dashill swore to and subscribed before
me this the 3rd day of June 1846. G.D.
Fullermen Justice
of the Peace for State
of I
Robert B. Castleman, clerk of the county court of said county do hereby
certify
that G.D. Fullermen Esqr. Before whom the foregoing officiant was made
is an
acting justice of the peace in and for said county duly (missing
section) and
qualified according to (missing section) given under my hand and the
hand of
said court at office in R.B.
Castleman State
of I
Joseph H. McEwan chairman of the county court of J.H.
McEwan 0431 Hon.
Joel R. Poinsett
Sir, The
accompanying documents will present to your consideration, the claim of
Williamson Smith of Marshall County Tennessee for a balance due him for
services rendered in the removal of Cherokee Indians, under a contract
made
with Genl. Nat Smith, Superintendent and of Cherokee Emigration, on the
24th
of October 1837, and ratified by the Commissioner of Indian Affairs on
the 5th
of December 1827. You will find among
the papers a power of attorney authorizing me as the agent of the
claimant, to
settle and adjust this business. It may
be proper for me to state that I have an interest in the claim, and the
circumstances under which I became concerned. When
Col. Smith entered into the contract with the
Sup. Cherokee
Emigration, I had no knowledge of or interest in it.
He was required to execute and submit to the
War Department for approval 0432 a
heavy penal bond with sufficient sureties, to secure the faithful
performance
of the contract on his part. He called
on me as one of his friends, to become his security which I did, and
with
others signed his bond. Upon the
ratification of the contract by the Commissioner of Indian Affairs, the
contractor
immediately proceeded to the 0433 willing
to incur any responsibility which I could avoid. The
notes were endorsed by other substantial
and sufficient men, and forwarded to 0434 It
is clear to my mind, that under a fair and honest construction of the
contract
entered into, Williamson Smith is entitled to pay at the rates agreed
upon, for
the minimum number of Indians (one thousand) for each trip he was
required to
make, whether that number was furnished for transportation or not. He was strictly bound to be in readiness with
a steam boat and two keels, so constructed as to furnish comfortable
accommodation
for at leas 1000 souls, and as many more as the Superintendent of
Emigration
should judge could be safely and comfortably taken.
The Superintendent on his part bound himself
to furnish for transportation “in all 6000 Indians, or more, if
it be found
expedient to transport a greater number by water, in such sized
parties, say of
one thousand or more, as the means of safe and comfortable
transportation may
admit” &c. The Superintendent
failed
to furnish “in all 6000 Indians” and what he did furnish
for transportation was
in parties of less than 1000 and the parties he did furnish, he
required the
contractor to take forthwith to their destination their new 0435 home,
according to his contract. If Williamson
Smith had failed to be in readiness with his boats of the description
agreed on,
hem and his sureties would certainly have been bound to make good the
damages
sustained. If the officer of the
Government on his part, failed to furnish the number of Indians agreed
upon,
surely the contractor is entitled to indemnity for the damages which he
actually sustained. The amount of these
damages there can be no difficulty in ascertaining.
The boats were in readiness, and so
constructed as to be able to take comfortably from 12 to 1500. The expenses of taking 1500 or 250 were the
same and there is no perceivable difference, as all men conversant with
the
business know. If the Superintendent
then, instead of furnishing parties of 1000 or more, according to his
stipulation, furnished parties o a less number and required them to be
taken,
as he did, is it not clear that the contractor is entitled to the
damages which
he actually sustained by the failure to comply with the stipulation
agreed on,
on the part of the Government? This
position
surely cannot be controverted, unless it be insisted upon, that the
Government
has the right to fail in her portion of an agreement 0436 and
hold individuals responsible for damages when incurred.
In any view of the case, Smith must be
entitled to pay for 1000 souls per trip. It
is certain that both the Superintendent and
contractor so understood
the contract to be, and it was so acted upon by them.
I beg leave to call your particular attention
to this part of the contract, and ask you to decide, whether the words
can mean
anything else, than that the contractor is to be furnished with at
least 1000
Indians per trip, and as a matter of course, if a less number was
furnished, he
is entitled on the sum of damages or otherwise, to payment for that
number
which he was bound to be prepared to take, and which he could have take
at
precisely the same expense of taking a lesser number. Believing
this view of the case to be correct, I hope you will order the enclosed
account, which is made out for the service actually rendered to be
paid, and
that you will take into consideration the amount of damages due
Williamson
Smith for the failure on the part of the Government to comply with that
part of
the agree- 0437 ment
which is in the following words. “And
the said Nathaniel Smith binds and obligates himself to deliver to the
said
Williamson Smith, or his agent, in all six thousand Indians, and more,
if it be
found expedient to transport a greater number by water, in such signed
parties,
say of 1000 or more, as the means of safe and comfortable
transportation may
admit, to be determined by the Superintendent of Cherokee Emigration. Provided however, that if the whole number of
6000 Cherokees shall not consent to emigrate, or to be transported by
water,
the Neither
contingency provided for by the Government happened.
It requires no proof to establish the part
that “the whole number of 6000 did consent to emigrate” and
the testimony of
Genl. Smith, Supt. of Emigration, and of Dr. Hyde (who is also a highly
respectable witness) proves conclusively that more than 6000 were
willing to go
by water. Genl. Smith says “even
after
Genl. Scott made the contract with Mr. Ross to remove them, I am 0438 confident
that if they had been given their choice over 6000 would have went by
water.” The
facts of the case are too plain for the proviso to have the effect of
justly
freeing the If
this position be correct, and it must be, the U.S. stands indebted to
Williamson Smith, the amount of account rendered for the four trips
made,
demurrage &c say $21250 50/110 and also fair and reasonably damages
for
failing to furnish within 2000 of the stipulated number. Although
I rest the claim solely upon a fair construction of the time intent and
meaning
of the contract, there are facts and attendant circumstances worthy of
particular notice, and which must have their influence in deciding upon
the
justice and equity of the claim I will repeat the most material and
prominent
ones within my knowledge. Immediately
after the ratification of the contract, Col. Smith proceeded 0439 to
secure the boats agreed on, and had them in readiness at Tuscumbia by
the
stipulated time. His boats and crew
remained at Tuscumbia until April, waiting for a party on the return
of the
boats, they again waited until June for the other parties, none of
which
amounted to the minimum number agreed on. State
they were pressingly urged to be forwarded
without delay. Genl. Scott, by repeated,
and urgent tellers
required the Superintendent to have all the means of transportation at
his
command in readiness. Agreeably to Genl.
Scott’s tellers, the Superintendent called on and required Col.
Smith to have
his second boat and keels in readiness according to his contract. This was complied with, and the steamer 0440 cers
of Government cause him to incur an enormous unnecessary expense under
the
stipulations in his contract, he is surely entitled to full damages,
for the
failures on the part of the Government. Williamson
Smith, has in very particular, fully and
fairly complied with
his contract – not the slightest failure can be pointed out. His boats were of a better description than
agreed on. The Government has not
complied with one single stipulation were the amount paid was not paid
at the
time and place agreed on. No payment
whatever was made at 0441 presented
for the balance on the four trips made and in addition, damages for the
deficiency of number which was agreed to be furnished – still the
amount paid
for transporting 2250 Indians to their new homes under the contracts of
the
Superintendent will not be much more than half what is paid under Genl.
Scott’s
contract with Mr. John Ross, for the removal of a like number. This will be seen by the following estimate,
which if not precisely accurate, is sufficiently so, to prove the
assertion
made. All
expenses already paid in removing 2250 Indians by water, Average
$21 per head -
$47,250.00 Mr.
Smith’s ofc. presented -
21,250.50 Damages
for failing to furnish for transportation, say 2000 to
make up “6000 in all” say –
20,000.00
$88,500.50 Mr.
Ross is entitled under his contract with General Scott for the removal
of 2250
Indians in a fair and comfortable manner, say $65 per head - $146,250. It thus seems that paying Williamson Smith
everything he can claim, the Indians transported by him will cost
$57,750
50/100 less than a similar number removed by Mr. Ross. 0442 If
powerful reasons existed for the Government to make the changes which
Genl.
Scott’s arrangement with Mr. Ross produced, there are still more
powerful
reasons, why a just government should render ample indemnity to her own
citizens, who have incurred heavy expenses in fulfilling on their part,
fair
and honest contracts. The Government,
nor its officers, surely cannot with impunity enter into contracts with
individuals involving heavy expenditures – call upon their
contractors to make
the preparation stipulated to its full extent, and producing an
enormous
outlay, and then suddenly and apparently whimsically, say we have no
further
use for you or the property we have caused you to procure for the
public
service. Up
to the 6th of June, General Scott, as his tellers, (copies of which
will be
found enclosed) will show, urged the Superintendent of Cherokee
Emigration to
have all his means of water and land transportation in readiness. The Superintendent required Williamson Smith
to incur the whole amount of expense for the number of boats contracted
for. 0443 After
all this was done, and the means of transportation, under the
Superintendent’s
contracts in readiness, it was announced in the newspaper that Genl.
Scott had
made a new arrangement with Mr. John Ross, and placed the whole
business of
transportation in his hands. Williamson
Smith had nothing but newspaper information that his contract was
interfered
with, or annulled. The Steam Boat Smelter, was in continual waiting, or in
the service of the I
hope Sir, you will give this case a full and liberal consideration, and
render
to an injured man without delay, that justice to which he is 0444 fairly
entitled. I have asked you to do nothing
but what is strictly and legally your duty under the law. James
Walker Atto.
In fact for 0446 The
1838 To
Williamson Smith April
6th For transporting 1 load of Cherokees from 2nd
Detachment to June 3rd Detachment to Little Rock
10,000 July 4th Detachment do
10,000
$42,250 CR.
By cash on afc party
$2500.00 “
“ 2nd do
5965.75 “
“ 3rd “
7240.00 “
“ 4th “
7458.75
23164.50
23164.50
19085.50 The
Steam Boat Brighton, lying at Demurrage
on same from 12th July to Demurrage
on the Smelter from the
21250.00 0447 State
of On
this day of December 1838 personally appeared Williamson Smith before
me Joseph
Herndon an acting Justice of the Peace for said county and makes oath
that the
written afc for demurrage on the steam boats, Brighton and
Smelter,
amounting in all to twenty one hundred and sixty five dollars is just
and true
and agreeably to contract with Genl. N. Smith of Oct 24 1837 –
and the balance
of the account, amounting to $19,085 50/100 he believing himself
entitled to
for services rendered agreeable to said contract. Sworn
to and subscribed before me this 13th
day of Dec. 1838. Jos.
Herndon JP
Williamson
Smith The
To
Williamson Smith D. For
damages sustained in consequence of failure to furnish in all 6000
Cherokee
Indians for transportation, agreeably to contract of 0448 War
Department, Sir, In
conformity with my promise to you this morning, I now inform you of the
concurrence of the Secretary of War in the views taken by me of the
claim of
Williamson Smith. This you will perceive
by his endorsement on my opinion. According
to your desire, I return to you the papers filed with the claim Very
Respectfully, T.
Hartley Crawford 0449 James
Walker 0450 War
Department Sir, According
to your desire, I return to you the papers filed with the claim. Very
Respectfully, T.
Hartley Crawford 0408
Sir, I
have, at the request of Mr. Walker, and on behalf of Williamson Smith
prepared
an argument, which, with the papers accompanying it.
I will thank you to place before the Sect. by
way of appeal from your report upon his claims under his contract with
the
Superintendent of Cherokee Emigration. I
am very respectfully 0415 Hon.
J.R. Poinsett Recorded
in Report 0416 O.I.A. Sir, I
submit the accompanying letter of F.S. Key Esq. on behalf of Mr.
Williamson
Smith, together with Mr. Key’s argument against an opinion I
delivered on Mr.
Smith’s claim, and the paper on which both [?] made up, by way of
appeal to you
for my decision. Very
respectfully, Hn.
J.R. Poinsett 0418 Hon.
H.H. Crawford
Sir, 0419 tract
on his part for which he would have been liable in damages. The Superintendent on the part of the 0420 have
stipulated to furnish a steam boat and two keels, and had them fitted
up in a suitable
manner to accommodate 1000 to 1500, without the stipulation that enough
should
be furnished for each trek to save expenses. That
stipulation was made when Genl. Smith agreed to
furnish the Indians
“in parties of 1000 or more”. It
is
certain that the expense was the same to take 250 or1250 and
consequently,
Williamson Smith is entitled to charge for each trip, for the smallest
number
of Indians which the Superintendent stipulated to furnish.
It is certain that both parties so understood
the contract, and it can be proven that when the party of 250 was
furnished and
required to be taken without delay, that W. Smith told the
Superintendent that
the no. furnished was not agreeably to the contract and that he could
not take
them at $10 per head unless at least 1000 was furnished.
To this Genl. Smith replied that the party
then furnished was of the treaty party, of the higher chiefs, were
unwilling to
wait for, or he mixed with the common Indians. That
it was important they should go without deal
and go comfortably,
that although there was only 250 his contract entitled 0421 him
to pay for at least 1000 per trip and he must take them.
It was upon this assurance and understanding
of the contract that the four trips were made which I am informed can
be proven
if Genl. Smith and D. Hyde still line. You
however, seem to think that the provisions on the part of the
government
completely protects the government from all responsibility in other
words,
whilst Williamson Smith is strictly bound and called on to perform his
portion
of the contract, it is as the officers of Government please whether or
not they
perform. Upon what principle or under
what mode of reasoning that you concluded that the proviso has anything
to do
with the size of the parties to be furnished, I cannot imagine. That provision does mean something, and I
suppose, like the other portion of the contract, it means what it says,
and
whether anything has occurred, that will justly exhonorate the
Government from
responsibility and damages depends upon the facts.
It can have no relation to any other part of
the agreement than 0422 that
of furnishing “in all 6000”. It
surely
cannot affect the size of the parties stipulated to be furnished. Genl. Smith himself says to W. Smith, that he
did not believe he could legally call on him to transport less than
1000. Of course, if W. Smith was called
onto take a
lesser number, he was entitled to pay for the minimum no. agreed on, or
it was
service not embraced in the contract, and he is entitled on general
principles
to what it is worth. The
shelter which the Government can take, with any show of justice, under
the
provisions, depends upon the facts. It
is contended by you, in effect that the Superintendent had the right,
and it
was proper for him to call on the contractor W. Smith to have not only
his
first boat and keels but also the other boat and keels ready for
service by the
25th of July, thus requiring him to have two steam boats and
4 keels
in readiness for service. This
requisition was complied with, but after it was made, not a single
Indian was
given the option of going by land or water – all previous
contracts were
declared broken, and the Superintendent virtually removed, and the
whole
business of transportation again to Mr. John Ross at a price more than
double
that of the existing contracts. The
question, so far as Williamson Smith is concerned, is whether or not
the
Government had the right to make another contract wholly suspending
his, and
which prevented the Superintendent from having the power to give the
Cherokees
the option of going by land or water of going under 0423 the
officers of Government or under Mr. Ross. The
contract of Williamson Smith was made under the
treaty, and the
statement of your prosecutor C.A. Harris Esq. shows that Smith agreed
to the
provision under an assurance from him (the Com. Of Indian Affairs) that
the
treaty would be executed as it then stood” and “in the
event of an alteration
the Government would be bound in equity to remunerate him” for
any losses “he
might sustain.” The provision was
made
and put into the contract [?] 0424 The
Government uniformly declared that the treaty should be executed as it
then
stood. Mr. Ross and other Cherokee
chiefs, resisted the treaty, and done all they could to harass the
government,
and make the Indians believe that if guided by them they could retain
the
country – of course they were slow to emigrate, and unwilling to
leave their
country until they saw whether or not Mr. Ross could “break the
Treaty”. Mr. Ross, with all
the elements of opposition
to the Administration failed – and the nation was assembled for
emigration
under the treaty. They had the choice to
go by land or water. Such was the
understanding on all sides – and if this option had been given
them, and less
than 6000 had chosen to go by water, the provision would have covered
the
case. As it was, Genl. Scott required
the Superintendent to have all his means of water and land
transportation in
readiness. The Superintendent calls on
his contract to incur the full amount of expense after which a new
treaty or
contract is made with Mr. Ross, and not a single Indian is left the
option of
going by land or water. After all the
water arrangements are made, the government officers make a new treaty
or
contract, by which all are to go by land, and under Mr. Ross’
arrangements. Now if the Government
chose to give Mr. Ross half a million, to hush up his opposition 0425 is
she not bound by every principle of honor and good faith to her own
citizens ,
to indemnify, for all losses and expenditures caused by her officers
under
existing contracts. The lead faith on
the part of the Government consists, in the fact that they mad a
contract for
water transportation for as many Indians as would choose that mode, the
choice
to be fully given them. The contractor
was notified to furnish his boats, and after he had done so, not an
Indian was
permitted to go by water, or under the direction of the Superintendent. All were to go under the contract, and under
the arrangements of Mr. Ross and in no other way. The
contract of Williamson Smith, and all
other existing contracts made under the treaty, were broken,
superceded, and we
are gravely told that that contract was binding on Smith but not on the
Government, or in other words that the officers of Government had the
right to
cause the contractor to incur all possible expense, and then tell him
they had
no further use for him or his boats. If
such is the true meaning of Williamson Smith’s contract, an
advantage has been
taken of him, which ordinary minds are incapable of detecting or
avoiding. 0426 Upon
the first point there I insist that you have given no reason, why the
claim of
pay for 1000 should not be paid per trip, nor can you give any such
reason,
unless you can show that an obligation to furnish 1000 or more, means
nothing. Upon this point – I did not
expect a difficulty. In the question of
damages for failing to furnish in all 6000 I expected the provision to
operate
so far as the facts would warrant – it would have operated justly
if the whole tribe
had been fairly given the chain by land or water, and less than 6000
had chosen
the water route. But the fact is, that
at the very time the nation was assembled for emigration, and all
arrangements
in readiness for land and water conveyance, giving them their choice,
Genl.
Scott suddenly made an alteration in the treaty or a contract with John
Ross,
giving him the whole contract of the emigration, virtually superceding
the
Superintendent, and in direct violation of all existing contracts. If the Government only felt bound to pay $10
per head for as many Indians as chose to go by water under the
arrangements of
the Superintendent, in good faith the Supt. agent to have had the power
to send
as many that way as were willing to go. No
such power or choice was given. It is in
proof, and can be more fully proven that
more that more than
6000 was willing and prefer- 0427 ed
going by water, even after the contract was made with Ross. This fact conceded, and how can the provision
justly avail, in saving the government form the payment of damages for
a clear
breach of contract – that breach was the more flagrant and
unjustifiable
because the officers of Government had caused the water transporter to
incur,
all possible expense in preparation for the business - after which not
a single
Indian was given the choice of going by water. All
power was placed in the hands of Mr. Ross, who
conceived it
meritorious to injure as much as possible all previous contractors. If
it be decided that W. Smith is not entitled to made the charge for 1000
per
trip, but only for the number actually transported, then his claim is
for
damages in failing to furnish 3994 Indians agreeably to contract
– as he made
trips enough to have taken the whole 6000, I do not see how this claim
can be
less than $79,940, nor how it can be denied in the few (?) of the
proven part
(and it can be proven stronger) that upwards of 6000 was willing and
would have
preferred going by water even after the contract with Mr. Ross was made. Their being denied a choice destroys the |
