The Congressional Globe, Volume 13, Part 1: Twenty-Eighth Congress, First Session Page: 58
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He says the Government may take the land, but
not till it is paid for. With great deference to the
opinion of the Senator, he would submit that the
only part of the Constitution applying to the case
was the last clause of the fifth article of the amend-
ments, viz: "Nor shall private property be taken
for public use without just compensation." The
practice of the States, which have a similar clause
m their constitutions, has always been to take the
property of individuals, and afterwards compensate
ths right owners. He thought that the subject
ought to lie on the table.
Mr. BUCHANAN did not at all admit that his
construction of the Constitution had been open to
Mr. WOODBURY suggested to the gentleman
from Ohio [Mr. Tafpan] there was another clause
in the Constitution which might have some influ-
ence on this point. In the 8th section of article 1,
it was provided for jurisdiction to be exercised by
the General Government over all places purchased by
the consent of the Legislature of the State in ichich the
same shallie, for the erction efforts, fyc. Here, though
the provision related to jurisdiction, yet it evidently
contemplated, before that begun, a purchase, of pri-
vate property for forts, in places situated within the
jurisdiction of a State. Purchase implied payment,
or an agreement to pay, which was satisfactory, in-
stead of it; and must be made by consent of the
State before the jurisdiction of the General Gov-
Mr. BENTON made a short remark, not heard
in the reporter's gallery.
Mr. BAYARD did not rise to protract the de-
bate; but conceiving the matter to be somewhat
new to several Senators, he thought some explana-
tion necessary. But he wished first to ask if it was
designed, by the motion just made, to get rid of the
bill by laying it on the table; or was it only for
the present, with a view of taking it up another
Mr. DAYTON said his object, on first proposing
to lay it on the table was, to give time for the Sena-
tors from Delaware and New Jersey, not now in
their places, to be present, in case any amend-
ment should be offered in committee of the whole.
Mr. BAYARD • inquired of the Chair what was
thepresent condition of the bill?
The CHAIR replied that it was in committee of
the whole, and open to amendment.
Mr. BAYARD observed that, if that was the
state of the bill at present before the Senate, as in
committee of the whole, it might be well to say a
few words on the subject. It was some time since
he had an opportunity of looking at the papers re-
lating to tlie matter, and he had come to the Senate
without any expectation of being called upon to say
anything on the subject. The history of the whole
matter was this:
During the last war, Gen. Dearborn, finding the
Delaware river entirely unprotected, selected, as a
favorable site for the establishment of a military
post, Pea Patch, an island lying opposite to the mouth
of the Delaware canal. At that time the island was
overflowed twice every twenty-four hours; and was
little more than a mud-patch. The State of Dela-
ware ceded her right to her share in this island to the
United States. There was no consideration given.
It was considered simply a disinterested and patriotic
movement for the benefit of-the whole country. The
State of Delaware claimed the island as a part of her
territory, under the grant made by the Duke of York
of the twelve-mile section. The State of Delaware,
conceiving it to be hers under this grant of the Duke
of York, ceded the island to the United States for
the purpose of erecting fortifications for the protec-
tion of the river Delaware. The United States in-
curred great expense, first in surrounding the island
with an embankment and an extensive stone wall.
He believed that the disbursements for its enclosure
alone amounted to some §30,000 or $40,000. The
Government then went on to construct Fort Dela-
ware, which cost Congress something like a million
of dollars. It so happened that the construction
was entrusted to a person of irregular habits;
the consequence of which was that, for want
of the necessary precautions, the foundation sunk,
and it was found that the works had settled
so much that they were of no use, and the United
States had the entire fabric pulled down, with a
view of having it reconstructed. In doing this, a large
quantity of materials was accumulated. In the mean
time, person by the name of Gale claimed the island,
oil warrant of survey granted by the authorities of
New Jersey. He continued to prosecute thin claim
against the United States; and, during the adminis-
tration of the War department by Mr. Secretai-y
Eaton, an arrangement was entered into between
this gentleman and him for the purchase of his in-
terest, without going much into the question of ti-
tle. With a feeling, perhaps, that property had
been taken in this instance vi et armis, the
sum of $30,000 was agreed upon to quiet the
title. The matter was referred to Congress, and
Congress refused to ratify the agreement. Mr.
Gale then commenced a suit against the United
States, (or rather against the officer in possession on
the part of the United States,) which was tried in
the circuit court of New Jersey. The consequence
was, that judgment was obtained in this court
against the United States; and, under its execution,
Mr. Gale took possession of the island. In this
state of the case, the district attorney of the State of
Delaware commenccd an action against the tenant
of Mr. Gale, and recovered judgment by default,
the claimant not venturing to go into the question of
title on the trial. Thus, then, there were two judg-
ments of the courts standing against each other. In
this state of things, it was agreed by the Secretary
of War that the Government should take posses-
sion of the island, on which there were some valua-
ble materials belonging to the Government; and the
matter has remained unsettled from that period un-
til the present time.
The Senator from Missouri would perceive that
this was not such a matter as could be adjusted by
the courts of the United States. In order to give
such a court jurisdiction, the State of Delaware, on
its partjpassed certain resolutions,asking the United
States Government to let the matter be reduced to a
subject of controversy between the two States; but,
in the mean time, before these resolutions were com-
municated to him (Mr. Bayard) or his colleague, it
was proposed, by the party having the claim to the
title, to submit the whole matter to arbitration; and
he (Mr. Bayard) and his colleague assented, as did
also the Senators from New Jersey.
Mr. B. further argued, and at considerable length,
that, all the parties interested being now satisfied
with the mode of adjustment proposed by the bill,
it was best, everything considered, not to open up
afresh the subjects of controversy, but to finally set-
tle the question according to the present arrange-
Mr. TAPPAN wished to say a word in explana-
tion, lest he should be misunderstood. The Govern-
ment of the United States cannot take private prop-
erty for public use in any place where they have
not territorial jurisdiction. The right to take pri-
vate property belongs to the sovereign power. It
can be exercised, therefore, in the States only by
the State governments. Where the United States
have territorial jurisdiction, they may take what
property they want, and then pay for it.
Mr. McDUFFIE desired to know at what time
Mr. Gale obtained possession of the island—whether
before or after the Government had taken posses-
Mr. BAYARD replied that this was the very
question which was involved in the whole contro-
versy, and it would take a long time to explain the
matter. But he believed the truth of the matter
was, that Gale had a sort of previous possession for
purposes of fishing occasionally. Yet, notwith-
standing that, it was not considered in the controver-
sy as that sort of title obtained from actual posses-
sion. The controversy itself made it a matter of
pride, on the part of New Jersey, to maintain her
rights; and conceiving the island hers beyond dis-
pute, she passed an act bringing it within the limits
of one of her counties.
He would call the attention of the Senator from
South Carolina [Mr. McDuffie] to the bill itself,
in which he would see that Mr. Gale's title must be
satisfactory before he can derive any benefit from it.
The bill says:
"Be it enacted, cf-c., Thai the Secretary of War be, and
he is hereby, directed to submit the question of the legal
title to the said island, as derived by the United States from
the State of Delaware, and by the said Henry Gale from the
State of New Jersey, to the arbitration of Horace Binney,
of the citj |f Philadelphia, whose derision shall be final
and conclude as between the United States and the per-
son or persons claiming under the said Henry Gale, who
shall be bound to establish, to the satisfaction of the said
arbitrator, the fact that the title of the said Henry Gale
if any there be, is vested in him or them: Provided, That
the person or persons claiming ixnderthe said Henry Gale
shall, previous to such submission, as aforesaid, deposite
in the hands of the Secretary of War a deed releasing to
th^e United States all claim and demand whatsoever to the
Mr. HUGER asked if the State of New Jersey
had made any cession of the island to the United
Mr. BAYARD replied that it had not.
Mr. DAYTON called the attention of the Senator
from South Carolina [Mr. Huger] to the first sec-
tion of the bill. He would there find a further answer
to his question. It was not his (Mr. Dayton's) pur-
Dose, nor was it that of the Senator from Delaware,
Mr. Bayard,] to touch the question of controversy
letween their respective States in relation to the
island. They were content that the question of title
involved in Mr. Gale's claim should be referred and
adjusted as proposed in this bill.
Mr. ALLEN inquired how many acres of land
the island contained.
Mr. DAYTON replied that he was not able to
say; but his impression was, that it contained thirty
or forty acres.
The motion to postpone the further consideration
of the bill was then acqueisced in.
On motion of Mr. HUNTINGTON, the Senate
proceeded to the consideration of executive business.
After some time spent in secret session—
The Senate adjourned.
HOUSE OF REPRESENTATIVES.
Thursday, December 21, 1843.
Mr. THOMPSON asked the general consent of
the House to introduce a bill; which, being objected
to, was not offered.
Mr. CLINGMAN asked the House to excuse
him from serving on the Committee of Claims. His
reason for making this request was, that his con-
stituents had several hundred petitions on the sub-
ject of Indian claims, but none before the Commit-
tee of Claims. Now, as the meetings of the Com-
mittee of Claims were in the morning hours, which
was the only time he had for attending to the busi-
ness of his constituents, he hoped the House would
see fit to excuse him.
The question was taken on Mr. Clingman's mo-
tion, and resulted in ayes 61, noes 24.
There not being a quorum voting—
The question was again put, and decided hi the
affirmative—ayes 88, noes not counted.
COMPENSATION OF MEMBERS OF CON-
Mr. DEAN gave notice that he would, to-mor-
row, or some subsequent day, ask leave to intro-
duce a bill to regulate the pay and mileage of mem-
bers of Congress.
DRY-DOCK AT PHILADELPHIA.
Mr. E. J. MORRIS gave notice that he would, to-
morrow, or some subsequent day, ask leave to in-
troduce a bill making an appropriation for a dry-
dock at Philadelphia.
Mr. BARNARD asked the unanimous consent of
the House to offer a resolution asking information
from the public departments: objected to.
Mr. C. JOHNSON insisted on the regular order
The CHAIR said the regular business was the
appeal taken yesterday by the gentleman from Vir-
ginia [Mr. Wise.]
Mr. BARNARD moved for a suspension of the
rules, to enable him to offer his resolution.
Mr. C. JOHNSON observed to the gentleman
from New York, that, if he would allow the House
to go on with the regular business, they would get
through it in less time than in this irregular way.
Mr. Barnard's resolution was then read for in-
formation, as follows:
Resolved, That the Secretary of War transmit to the House
a copy of the report of Captam Hughes, of the Topographi-
cal Corps of Engineers, oi the survey of the Hudson river,
with a view to the improvement of its navigation.
The question being put on the motion to suspend
the rules, it was lost without a division.
_ Mr. WISE then withdrew the appeal made by
The CHAIR than called for petitions from Mas-
Mr. ADAMS observed that there was an appeal
before the House, taken by himself, on the decision
of the Chair, that one of the petitions presented by
him was excluded by the 25th rule: [i. e. a petition
praying against the admission of Texas into the
Union while she tolerated slavery.]
The CHAIR said that, since yesterday, he had
examined the precedents bearing on this case, and
had ascertained that such petitions have been hereto-
fore received. Not feeling at liberty to set aside the
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United States. Congress. The Congressional Globe, Volume 13, Part 1: Twenty-Eighth Congress, First Session, book, 1844; Washington D.C.. (texashistory.unt.edu/ark:/67531/metapth2367/m1/82/: accessed May 29, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; crediting UNT Libraries Government Documents Department.