THIS case was brought up, by writ of error, from the Circuit Court of the United States for the District of Columbia.
It was an action brought by Parks for services rendered by Samuel Parks to John Ross, in the removal of the Cherokee nation to the western side of the Mississippi, in the years 1838 and 1839. The bills of exception set forth in extenso all the evidence offered by the plaintiff upon the trial. Some of this evidence consisted of long documents, which it is not deemed necessary to insert, although they were made parts of the bills of exceptions. Their contents will be sufficiently understood from the following narrative.
In the year 1838, the government of the United States was desirous to remove the Cherokee nation to their assigned habitation beyond the Mississippi River; and deputed General Scott to make an arrangement with them for that purpose. The Cherokees upon their part appointed an agent with plenary powers, as appears from the following preamble to some resolutions adopted by them in 1840:––
'And whereas, these conditions being fully settled, the special agents of the nation, acting on the nation's behalf, after having made divers appointments for the purpose of carrying it into effect, in order to condense the business, did delegate its entire superintendence to one of their body, John Ross, and by John Ross such persons were deputed for the management of the various departments, on account of the nation, as were considered best qualified for the purpose,' &c.
In order to ascertain the probable expense and amount of drafts necessary to be drawn upon the Treasury, General Scott caused the following estimate to be made out.
Estimate for the emigration of a party of one thousand Cherokees to their country west of the Mississippi, distance eight hundred miles, eighty days going:––
Fifty wagons and teams, (twenty persons to each
wagon,) at a daily expense of $3.50, including
Returning, $7 each, for every twenty miles, . 14,000.00
Two hundred and fifty extra horses, forty miles
each per day, ....................... 1,000.00
Ferriages, &c.,....................... 1,000.00
Eighty thousand rations, at 16 cents each, . 12,800.00
Conductor, $5 per day, ................. 400.00
Assistant conductor, $3 per day, ....... 240.00
Physician, $5 per day, ................. 500.00
Physician returning, $15 for every hundred miles, 120.00
Commissary, $2.50 per day, ............. 200.00
Assistant commissary, $2 per day, ...... 160.00
Wagon-master, $2.50 per day, ........... 200.00
Assistant wagon-master, $2 per day, .... 160.00
Interpreter, $2.50 per day, ............ 200.00
General Scott explained the contract in this way:––
'The understanding of the parties was common and distinct, that the eighty days allowed for the removal of each detachment, by land, was a mere assumption of a basis on which to calculate, for the moment, the advances to be made by the United States on account of the movement, and to set it agoing. If the advances proved to be too great, the excess was to be paid into the treasury of the nation; if too little, on account of more time in the movement, the United States were to make up the difference from the trust fund.'
The Cherokees were formed into thirteen detachments, and the removal commenced about the 1st of September, 1838; but in consequence of sickness amongst them, a drought in the country through which they had to pass, difficulties in crossing the Mississippi, and other embarrassments, the time of removal was extended to a much longer period than eighty days.
Samuel Parks was a citizen of the Cherokee nation, and John Ross hired from him four wagons and teams, to be attached to Detachment No. 11.
On the 18th of May, 1840, John Ross, styling himself 'Principal Chief and superintending Agent of the Cherokee Nation for Cherokee removal,' presented an account to the proper office at Washington, claiming a balance due to the Cherokee nation of $581,346.88 1/2. Amongst his vouchers was the following, being one of the expenditures incurred by Detachment No. 11, in which Parks was, with his teams:––
For hire of fifty-one wagons and teams, for 1,029 persons,
from the 1st of November, 1838, to the 24th of March,
1839, inclusive, 144 days, at $5 per day, $36,720;
`allowance of 40 days for returning, at $7 per day
each, including travelling expenses, $14,280, .$51,000.00
In November, 1840, the Cherokees passed some resolutions, amongst which were the following:––
'Resolved, That the authority vested in the special agents, and continued by the act of union between the Eastern and Western Cherokees, passed at Illinois Camp-ground, on the 12th day of July, 1839, and by them conferred upon one of their members, John Ross, as superintendent, with a view to facilitate the duties required of them, be, and the same is hereby, approved and ratified.
'And further resolved, (in support of the aforesaid authority,) That by the Cherokee nation, through their national committee and council in national council assembled, it is hereby ordered that the aforesaid John Ross be, and he is hereby, directed and fully empowered to proceed to Washington city, and to urge a settlement of this claim with all possible expedition, and to apply for and receive from the government of the United States, in the name of the Cherokee nation, the balance due of $581,346.88 1/2, as stated in the account of the emigration claim, in order that the business growing out of it may be brought to a final close.'
On the 6th of September, 1841, Mr. John Bell, then Secretary of War, decided upon this claim, and allowed ...