lation, without any reference to the intrinsic merits of the several cases provided for. If the case of Mr. Adams, who had practically prepared his proofs, is a hard one, so is that of a man equally entitled, but who has done nothing. The equity of their claims is the same, but neither has complied with the positive requisitions of the law.

Mr. EDWARDS, Pension Office.

P. B. PORTER.

B.

Mr. Whittlesey to the Secretary of War.

HOUSE OF REPRESENTATIVES, Dec. 11th, 1828.

SIR: Your decision in the case of Moses Adams, accompanied by the report of Mr. Edwards, and the opinion of the Attorney General in the case of Col. Johnston, is received. I very much regret I was not apprised of the decision of Mr. Calhoun in the case of Col. Johnston, before your decision was made, as I have no doubt you greatly desire to give uniformity and stability to the decisions. in the Department over which you preside. I am at a loss to know why Mr. Edwards did not incorporate the whole proceedings in the case of Col. Johnston in his report. If he had, you would have seen that the opinion of the Attorney General was overruled, and that Col. Johnston was allowed a pension from the date of taking the depositions. I refer you to the report made by Mr. Calhoun, in answer to a resolution of the Senate, 2d session 17th Congress, 2d vol. No. 43. My charity will lead me to hope that Mr. Edwards had forgotten the proceedings in this case. It will appear by examining them, that Mr. Edwards stated that the pension," (by special acts of Congress) "has been made to commence, (so far as he was able to ascertain by a reference to the files) at the date of the last deposition made in support of the claim." The opinion of the Attorney General was taken on the 19th of July, 1822; Mr. Edwards's letter, from which the above extract is made, is dated on the 11th of December, 1822, and on the same day Mr. Calhoun, then Secretary of War, directs that, "in pension applications hereafter, the rule adopted by Congress, above alluded to, will be adhered to." This was probably written at the bottom of Mr. Edwards's letter, and on the next day Col. Johnston was placed on the pension list to commence from the 1st day of August, 1816, the date of the last deposition. The case of Col. Johnston and that of Mr. Adams are alike, both wanting a certificate of the clerk.

In the report made by the Secretary of War, above alluded to, there are thirty-four cases where the commencement of the pensions is some time anterior to their allowances, some of them several years. The Attorney General yielded his opinion, to what Mr. Edwards reported had been the practice under special acts of Congress.

I am not in the habit of arguing a question, after a decision by competent authority is made; but if the tribunal has been misled by an erroneous statement of facts, or by a misstatement of previous decisions, I hope you

will not deem it improper if I ask a review of the decision in the case of Moses Adams.

With great deference for the opinion of the Attorney General, I am constrained to say, I very much doubt whether any lawyer will concur with him in the opinion expressed, and I am led to doubt whether he read the law of 1806.

The first law on the subject of invalid pensions was passed April 10th, 1806, vol. 4, page 31. The second section prescribes that "all evidence shall be on oath or affirmation, before the judge of the district, or one of the judges of the Territory in which such claimant resides, or before some person specially authorized by commission from said judge. The fourth section is, "that every pension, or increase thereof, by virtue of this act, shall commence on the day when the claimant shall have completed his testimony, before the authority proper to take the same." That which is designated by "testimony" in this section is, the facts stated by witnesses under oath, before the person authorized by the law to take it; or in other words, it is the evidence, or proof of disability, its degree, the time when, and place where, the wound was inflicted. The complainant completes his testimony when the facts are committed to writing, and sworn to. The authentication of that testimony is another and quite a different thing from taking it. A record is complete when the history of the case, with the judgment of the court, is recorded in a book of records. But, according to the opinion of the Attorney General, it is not complete until it shall be so authenticated as to be admitted in evidence before another and distinct tribunal. Mr. Edwards supposes "the question is not as to the time when the testimony closes, but as to the time when the papers are completed." He evidently uses a word not contained in the act, to defeat this person's claim. The above act was revived 25th April, 1812, without altering its phraseology, and again it was revived by the act of May 15th, 1820. The second section of the last act is, "that the right any person now has, or may hereafter acquire, to receive a pension in virtue of any law of the United States, be considered to commence at the time of completing his testimony, pursuant to the act hereby revived and continued in force."

The act revived says, that the pension "shall commence on the day when the claimant shall have completed his testimony before the authority proper to take the same. The phraseology of this section, it seems to me, clearly excludes the idea, that authenticating the testimony is any part of the duty imposed on the claimant to perform. He is to see that the testimony is taken before proper authority; if the testimony, when taken, is authenticated, it is by the authority before which it is taken; or the official character of the authority before which the testimony has been taken, is certified by the officer within whose archives the information is lodged. When the clerk of a court certifies to the official character of a magistrate, no witnesses are examined by him, or testimony taken before him; the law has made his office the depository of the evidence of the fact. A person applies for a pension, whose enlistment and service appear on the rolls in the pension office. He has made a statement of his enlistment and service before the proper court, and exhibited his testimony to prove his necessitous circumstances. Is not his testimony then complete? Or will it be contended that it is not, until a clerk in the pension office has looked into the rolls in the office, and found that the fact of enlistment and of service are proven by

them? This would be against the uniform practice, and against reason and

common sense.

I agree with the present Secretary of War that "the law fixing the commencement of pensions is matter of positive regulation, without any reference to the intrinsic merits of the several cases provided for." This, as a strict question of law, I grant is correct; but if we resort to principles of equity, (as the Secretary has done to illustrate his position) I had supposed they would relieve a suitor, who had endeavored to assert his claims, although he might for a time have failed in obtaining his proofs, or in having them duly authenticated, when they would not relieve the sluggard who had slept on his rights.

Most respectfully,
I am yours,

E. WHITTLESEY.

Hon. PETER B. PORTER, Secretary of War.

P. S. Since writing the above my attention has been more particularly drawn to the whole act of April 10th, 1806, which, as relates to this ques tion, contains two points. 1st. To take the proof by deposition. 2d. The transmission of all the evidence to the War Department. The act adopts the first as the time when the pension is to commence. It makes no allusion to the latter. The reason is obvious: It is the duty of the party to make the proof before the judge or justice; it is the duty of the judge or justice to send it to the War Department. By section third he is to "note particularly the day on which the testimony was closed before him." Why? If that be an immaterial point, why certify it? If the other be the material point, why is he not required to certify that?

C.

J. L. Edwards to the Secretary of War.

WAR DEPARTMENT,

Pension Office, December 27, 1828.

SIR: I discover from Mr. Whittlesey's letter to you, of the 11th instant, that he has entirely misunderstood my object in the allusion which I made to the Attorney General's opinion, in my report of the 6th instant. My intention was not to prove that the cases of Moses Adams and Colonel Johnston were parallel cases. Had I supposed that they were so, I should inevitably have come to the same conclusion to which Mr. W. has arrived; the pension would have been allowed to Adams from 1826, and there would have been no necessity for giving even a part of the proceedings in Col. Johnston's case, and, of course, the whole would have been superfluous. My intention was, to shew that, according to the principle laid down in the opinion of the Attorney General, and upon which we had always acted, the pension of Mr. Adams must necessarily commence at the time when the elerk dated

his certificate. The principle contended for, is simply this: Evidence is never complete until all objection to it is removed. Mr. Whittlesey says that this opinion was overruled. I do not think that it was. When the Attorney General discovered what had been the practice in Congress in certain cases of special legislation, he expressed a different opinion as to what might be considered necessary to complete the evidence, but he did not recede from the opinion, that evidence is never complete until all objection to it is removed. He had no where said, that this abstract proposition was erroneous, and no decision of the Department has ever proved that it was so considered. Congress declared, by the act of April 10, 1806, what should be received as evidence, and by a subsequent act it was declared that the pension should, in every case, commence at the time when such evidence was closed, i. e., when the last deposition was made. Reference being had to cases of special legislation, in order the better to determine what the intention of Congress was, it was found that the certificate of the clerk to authenticate the proceedings was not deemed essential to complete the evidence, and for this obvious reason: The act of April 10, 1806, did not require such a certificate, and it was only in some cases, where the evidence was taken before a State judge, that such a certificate was ever annexed. I agree with Mr. Whittlesey in all that he affirms respecting the act of 1806, which, however, has no bearing, I think, on the case of Moses Adams, because that law and the revolutionary pension laws direct very different rules of evidence to be observed. The act of March 1, 1823, under which Mr. Adams obtained a restoration to the pension roll, requires the evidence to be taken before a Court of Record, and makes the clerk's certificate a part of that evidence. That certificate being a part of the evidence, and which generally bears the last date, often determines the commencement of the pension. It was so in Mr. Adams's case. Mr. W. has been pleased to say, that I have used the word papers, which is not in the law, evidently to defeat the claim. What motive I could have had for wishing to defeat the claim, no one can tell, I imagine. If that had been my object, it is not very likely that I would have written the sentence which immediately follows. I therein refer to the section and date of the law, and quote the precise words of the law. I never supposed that the use of words to explain the meaning of a law could be construed into false quotation, or I should have been more careful in the selection of suitable expressions. To me it cannot be a matter of any consequence when a pension commences. All that I desire is, to discharge my duty faithfully. The laws and regulations are intricate and perplexing in many instances, and if by them the Department should oc casionally be involved in apparent inconsistency, it ought not to cause surprise, and it certainly does not deserve censure.

I have the honor to be,
Very respectfully,

Your obedient servant,

Hon. P. B. PORTER, Secretary of War.

JAMES L. EDWARDS.

L