The Congressional Globe, Volume 13, Part 1: Twenty-Eighth Congress, First Session Page: 341
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CONGRESSIONAL GLOBH.
34 i
ginated in their attempt to meet the agreement within
the time specified in tne contract. This was the fact
upon which they had based an application to the
Senate, which application was referred to the Com-
mittee on Naval Affairs. It was an appeal
praying that the Secretary of the Navy might
te allowed -to extend the time allotted them
for the fulfilment of their contract, and
thereby, in substance and effect, to renew the exist-
ing contract. The Secretary of the Navy had re-
ported to the Senate that he did not consider that
question within his jurisdiction; that, by a law
passed in 1843, for the purpose of regulating that de-
partment, he was forbidden to renew contracts with
any person whatever, for furnishing anything to the
navy, except such articles as were prescribed by
law. The Committee on Naval Affairs directed a
bill to be reported, conferring the power to renew all
navy contracts upon the Secretary of the Navy, pro-
vided he should not exercise it in any instance ex-
cept where he was satisfied that it could be done to
the interest and benefit of the United States. This
was to afford the government the protection and
guard to be derived from having an honest officer at
the head of the Navy Department, who, so far as
the individual judgment and discretion of one man
went, would secure the government against the
plundering schemes of companies or individuals.
He meant no personal allusion by this remark. It
was a general principle. The committee directed a
general law to be reported, the effect of which was
to renew contracts which had expired. To secure
the United States against the charge of favoritism
and partiality on the part of the Secretary himself,
and to throw some guard around this executive
patronage, the provision was directed to be incor-
porated in the bill, declaring that, notwithstanding
what his individual opinions might be, if other
contracts had been entered into by other
persons to furnish the same articles, and
the same material, at the same price, the old con-
tractor should not be allowed a renewal of his con-
tract, unless he should agree to reduce his price
down to that at which other contracts had since
been entered into. Was theie anything in the
world more equitable than this? No legislative body
■had a right to take public money and make dona-
tions of it. Congress had neither the right nor
power, morally speaking, to extend an existing
contract, when another individual, under the pres-
ent law, offered to furnish the same thing at 33^ per
cent, less money. Was it not enough—was it not a
little more than enough—that the old contractors
should have their contracts renewed, and thereby
secure to themselves the additional 10 per cent, to
which they would be entitled, without asking 33^
per cent, more than other contractors? He thought
it was; and yet what was the proposition of the
senator from Delaware, [Mr. Bayard?] It was to
afford relief to individuals, without bettering the
government; it was, that a certain company in
Richmond, "who had contracted to furnish guns to
the government at $133 .'13-v per ton, should be al-
lowed by the Secretary of the Navy to renew^ that
contract; and the facts of the case were these: That
company had agreed to furnish guns at $133 33^
per ton; since that contract was made, another con-
tract was entered into by the department, by
which guns were to be furnished at $100
per ton. Now, it was proposed to make
an extension in favor of the Richmond company, to
the prejudice of all others, and give them 33^ per
cent, more than was given to other contractors, be-
sides paying them the 10 per cent., withheld until
the contract had heen fulfilled. What was this but
an unqualified and unmitigated donation? He knew
it had been said, and would be said again, that it
was the worst possible policy in the government to
enter into contracts with the lowest bidder, for ar-
ticles of this description. If so, the law passed in
1843 should be repealed. It was useless to make
exceptions of particular cases. If the policy was
bad the law should be repealed; but when that ques-
tion came up, there would probably be a division
of opinion upon it. Why could not cannon be
furnished, except by a certain contractor, because
they were required to be made of a particular sort
of metal? Could not a contract made with the
lowest bidder, be done m this way? Could not the
terms be stated—the material agreed upon? And
could not this contract be as binding as if it
were made at the table of the Secretary?
Unquestionably it could. The argument against
making cheap contracts proved nothing at all.
It was an argument against the existing laws
of the country; and the objections urged did not
furnish a sufficient reason why the Senate should
advance 33^ per cent, to any company—for it ad-
vanced that, when it re-established the contract. He
trusted he had been enabled to speak on this subject
understanding^; and he would conclude, by repeat-
ing, that if the Senate passed this amendment, it
was saying in substance, that all the contractors in
the the United States, who had an existing contract,
should not have a renewal of it, notwithstanding
they were willing to execute it at a lower price than
that paid the company in Richmond.
Mr. BAYARD said this bill was introduced in re-
sponse to many petitions received on the subject, to
the statements contained in which was given every
consideration. The general terms of the bill were
deliberately discussed, and its various provisions
drawn up with care and attention. However, in
looking more carefully to those provisions, and to
the effect they would have on the petitioners, it was
found necessary to add the amendment. The par-
ties seeking relief entered into a contract with the
Government to supply one hundred cannon, with
one hundred balls for each, at the rate of §133 per
ton. They proceeded so far as to supply sixty
guns out of the hundred, which, after standing ev-
ery test and trial, were received and paid for: but
with the remaining forty guns the contractors were
not so successful; for, on trial, those guns, or a suf-
ficient number of them to annul the contract, burst.
The makers could in no way account for this misfor-
tune—the materials and process of manufacture
being in every respect the same as those
of the first sixty—except by attributing it to
some hidden defect in their furnace; and relying
then on the general usage which was to extend, on
sufficient reason shown, the time for fulfilling such
agreements; and from an anxiety on their part
strictly to keep up to their contract,—they deter-
mined, at a very heavy expense and inconvenience,
to pull down their furnance, and construct it anew.
During the performance of this work, the act passed
which took away from the executive officer the
power of extending contracts in any case; and
hence the necessity for introducing the section un-
der discussion. The act of 1843 rendering it im-
perative to accept the lowest contract, was not as
yet productive, in the article of cannon, of any ser-
vice. Under it two contracts were entered into;
neither of which has or ever will be fulfilled. The very
fact of the lowest bidder being the successful applicant
for the work, brought forth, as proposers, casters and
dealers in pot metal and stove iron. The first contract
under this law was entered into with a Mr. Page,
who was to receive §95 per ton; but what was the
result? Every gun made by him exploded on the
first trial. The second contract was with the Stir-
ling Foundry company of Cleveland, Ohio, wfco
agreed to supply guns—one description at $100 per
ton, another description at §110 per ton; but this
company found out its mistake, and has not sup-
plied one gun from the date of contract to the pres-
ent day. It was the opinion of gentlemen connected
with the department, that, in the present state of the
markets, guns might be obtained for a less sum than
$133 per ton—perhaps for $120 per ton. With
this opinion he did not differ; neither was it proposed
to go to §133 per ton by the clause in question, the
whole matter being left to the sound discretion of the
Secretary of the Navy. He felt confident, that al-
though, in such articles as timber, provisions, and
others of fluctuating value, it was the better plan to
take the lowest bidder,—in cannon it was quite
the contrary. The claim of the petitioners
arose from the dependence on a former usage, which
was only done away with by a law passed while
they were hurrying with preparations to fulfil theis
agreement. They incurred a very heavy expense
in those endeavors; and, as the amendment leaves to
the Secretary of the Navy the power of renewing or
extending their contract on equitable terms, he, it
was to be supposed, would do nothing in the matter
that would be injurious to the interests of the coun-
try.
Mr. KING was understood not to object wholly
to the bill; but he was not prepared to delegate to
any officer of the government the power intended
by this amendment to be given to the Secretary of
the Navy. He suggested to the honorable senator
who had charge of the bill an alteration in the sec-
ond section, which he thought would remove the in-
vidious distinction of the proposed amendment be-
ing framed for the particular benefit of a favorite
company.
Mr. BAYARD concurred with the views taken
by the honorable senator from Alabama, but thought
the alteration suggested would leave an opening for
claims from other contractors, which it was neces-
sary to guard against. The other objections of the
honorable senator, he (Mr. B.) would perhaps ob-
viate in another bill. The amendment in question
was trifling, and could not exceed, at the outside,
$1,500. He hoped the amendment would be agreed
to.
Mr. WOODBURY was, from experience, con-
vinced of the necessity of using the greatest care in
all contracts of the kind. He knew something of
tests—the tests of anchors, chain cables, cannons,
and cordage; and considered it essential to know the
nature of the material, as well as the process of
manufacture. He did not approve of the policy of
giving contracts to the lowest bidders, unless accom-
panied by a special provision for the inspection of a
competent officer, who should, on the spot, examine
and report not only on the material, but on every
process it went through until finished. He hoped
the amendment would be adopted. There must be
a chancery power somewhere to render a relief in
such cases. It was a proper case for the interposi-
tion of a court of chancery, if the government could
be sued, and it could be best exercised by the de-
partment making the contract. When Secretary of
the Navy he had found so much difficulty with the
contracts for cordage, &o..,that he had recommended
that the government make its own cordage, which
was now done to a great extent. Without some
discretionary power m the hands of the department
as to the contracts for cannon, it would be necessary
to resort to the establishment of a national foundry.
Our minds might be somewhat swayed by a re-
cent mournful occurrence, but there was no doubt
that there was great difficulty attending the contract
system.
Mr. HAYWOOD did not rise to discuss the utili-
ty or inutility of a national foundry, or the advan-
tages or disadvantages to be derived from a naval
school; but to discuss and keep before the Senate
the question whether an executive officer—so made
by the laws of the country—should have the abso-
lute power to alter or change those laws at his will
or pleasure. If so, he would say, for God's sake
talk no more of patronage! Let the proposed course,
be adopted, and the law would be soon nibbled
away. Tredegar foundry would find one hole, and
would be followed by others, until not a shadow
would be left. He argued there would be no know-
ing what was law, or what was not law, if every act
passed was to be thus virtually repealed for the
benefit of some aggrieved contractor. If, after pay-
ing a high duty on iron to prevent the importation of
foreign material, the country was to be called on to
pay a bonus to a foundry company, because that
company did not fulfil its contract, why then it
would be better to import cannon at ovce. He
knew of no hardship in the case, further than it pre-
vented a man from plunging his hand into the public
purse; and who grounded his right to do, because, if
he made the attempt twelve months before, he would
not have been stopped.
Mr. RIVES argued that, in equity, the petition-
ers were entitled to what they now sought, from the
fact of the sixty guns having stood the usual test
ordered by the department; which was, that if, on
first trial, one-fourth of the guns tried did not burst,
the remainder should be received and paid for. On
the first trial of those guns, not one-tenth of them
burst; and it was not until the third trial—a precau-
tion taken in no case before—that a sufficient num-
ber burst to enable the executive to reject the re-
maioder. On these grounds he thought the peti-
tioners entitled to remuneration. He dwelt on the
quality of the metal used at the Tredegar foundry,
which he said could not be equalled m the United
StMr.' PEARCE spoke from a knowledge of the
facts connected with the contract of Mr. Page—who
agreed to supply cannon at $95 per ton. 1 hat gen-
tSman thought that pig-iron, which he purchased
for $20 per ton, would be fully good enough tor
casting cannon; whereas suitable metal could not
be had under double the price: hence his failure.
Every gun of his burst; and he (Mr. P.) could as-
sure the Senate that Mr. Page had no wish to enter
into a fresh, or renew his old contract. Mr. P. agreed
with the suggestion of the honorable senator from
Alabama, [Mr. King;] and rf a distinct, proposition
to that effect was made by him, he (Mr. P.) would
support it.
Mr. WRIGHT had listened with attention to the
debate on this subject, but felt seme difficulty about
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United States. Congress. The Congressional Globe, Volume 13, Part 1: Twenty-Eighth Congress, First Session, book, 1844; Washington D.C.. (https://texashistory.unt.edu/ark:/67531/metapth2367/m1/365/: accessed April 27, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.