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MAY 11, 1830.
Mr. FORWARD, from the Committee on Military Pensions, made the fol
The Committee on Military Pensions, to which was referred the case of
Moses Adams, report:
Moses Adams claims from the United States the arrears of a pension for about two years, alleged to be due under the following circumstances:
In September, 1826, he appeared before the Court of Common Pleas of Portage, Ohio, to make out his testimony in support of his claim to a pension from the Government of the United States. Every thing necessary to sustain his claim was then completed, except that the certificate of the clerk and official seal of the court were not attached to the papers; but the clerk of the court mislaid them, and they were not found until about two years afterwards. They were then, after repeated inquiries and searches, found to be still in possession of the said clerk; and after they were thus discovered, he added to them his certificate, and the seal of the court. were then transmitted to Washington, and Adams was placed on the list of pensioners, but his pension was made to commence from the time the certificate of the clerk and seal of the court were added to the papers. The propriety of this decision was questioned by the Honorable E. Whittlesey, and at his request it was revised by the Secretary of War.
The act of Congress of the 3d of March, 1823, declares that the pension 66 shall commence from the time of completing the proof.” The clerk of the pension office had decided that the proof was completed only when it had been authenticated by the official certificate of the clerk and seal of the court. This opinion was confirmed by the Secretary of War.
Mr. Whittlesey, on the other hand, contends that the certificate of the clerk and seal of the court were no part of the “proof” contemplated by the act of Congress of the 3d of March, 1823, but that they merely gave authenticity to the proof which had been before completed.
The committee do not think it necessary to enumerate all the arguments in favor of either of these positions. They are not able to discover any
peculiar reasons in this case to induce them to unsettle the practice of the proper Department, under the construction there given to the aforesaid at of Congress, and therefore offer the following resolution:
Resolved, That the committee be discharged from the further considery tion of the case of Moses Adams.
Pension Office, December 6, 18 Sir: Agreeably to your directions, I have the honor to make the lobosono report in the case of Moses Adams:
The Hon. Mr. Whittlesey, in his letter of the 4th of October las, te quests a revision of the decision of this office in relation to the comes ment of Adams's pension. The last affidavit in support of this clai taken, as Mr. Whittlesey alleges, in September, 1826; and from that he thinks the pension should commence, because he considers that time when the evidence was closed, and he adds, in his remarks on the ject, that there is a clear distinction between the closing of evider authenticating the evidence when closed. All this is admitted. question in this case is not as to the date of closing the testimony, the time of completing the papers which contain the testimony. . of the law, which will be found in the 3d section of the act of 1823, expressly declare that the pension shall commence at the time pleting the proof; and the rule adopted under that section is in a with the opinion of the Attorney General on the subiect, dated the July, 1822, to which I take leave respectfully to refer you. The General, you will discover, gave it as his opinion, that testimony complete while it wanted any thing of authentication to render it a and it was decided then that the testimony was not complete without tificate of the clerk of the county court, whose authentication was The certificate of the clerk, in the case of Moses Adams, was not til September 18, 1828, and from that time his pension was allowe mence. The papers in the case are herewith transmitted for your insp
I have the honor to be, &c.
er you. The Attornej
testimony was neve render it admissible
ation was necessary
as allowed to 01
JAMES L. EDWARDS
Hon. P. B. PORTER, Secretary of War.
Copy of an endorsement made by the Secretary of War.
DECEMBER 9th, 1325
The exposition of the law by the Attorney General is satisfacio) your decision, made in conformity with it, is of course correct.
The law fixing the commencement of pensions is matter of postu
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.
P. B. PORTER. Mr. EDWARDS, Pension Office.
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 re. port 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 o 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 districtor 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 tus act, shall commence on the day when the claimant shall have completed as tastimony, before the authority proper to take the same.” That which I** signated by “ testimony" in this section is, the facts stated by witness der oath, before the person authorized by the law to take it; or in der words, it is the evidence, or proof of disability, its degree, the time w and place where, the wound was inflicted. The complainant completes testimony when the facts are committed to writing, and sworn to... authentication of that testimony is another and quite a different thing in taking it. A record is complete when the history of the case, with judgment of the court, is recorded in a book of records. But, according the opinion of the Attorney General, it is not complete until it shall authenticated as to be admitted in evidence before another and disti bunal. Mr. Edwards supposes “ the question is not as to the time the testimony closes, but as to the time when the papers are comples He evidently uses a word not contained in the act, to defeat this pe claim. The above act was revived 25th April, 1812, without alter phraseology, and again it was revived by the act of May 15th, 1020 second section of the last act is, that the right any person no may hereafter acquire, to receive a pension in virtue of any 13 United States, be considered to commence at the time of complete testimony, pursuant to the act hereby revived and continued in forti
The act revived says, that the pension 6 Shall commence on the day the claimant shall have completed his testimony before the authority per to take the same. The phraseology of this section, it seems clearly excludes the idea, that authenticating the testimony is any the duty imposed on the claimant to perform. He is to see that u mony is taken before proper authority; if the testimony, when taker thenticated, it is by the authority before which it is taken; or the character of the authority before which the testimony has been taken, tified by the officer withiņ whose archives the information is lodged. the clerk of a court certifies to the official character of a magistrate, nesses are examined by him, or testimony taken before him; the law b his office the depository of the evidence of the fact. A person app! a pension, whose enlistment and service appear on the rolls in the office. He has made a statement of his enlistment and service bi proper court, and exhibited his testimony to prove his necessitous stances. Is not his testimony then complete?" Or will it be content it is not, until a clerk in the pension office has looked into the roll office, and found that the fact of enlistment and of service are pro
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